State v. Hughes

648 November 13, 2025 No. 962

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOHN ALLEN HUGHES,

aka Jon Allen Hughes,

Defendant-Appellant.

Multnomah County Circuit Court

18CR34311; A179105

Benjamin N. Souede, Judge.

Submitted July 2, 2024.

Frances J. Gray filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin

Gutman, Solicitor General, and Leigh A. Salmon, Assistant

Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Affirmed.

Cite as 344 Or App 648 (2025) 649

650 State v. Hughes

ORTEGA, P. J.

A jury found defendant guilty of second-degree mur-

der and unlawful use of a weapon for fatally shooting R.1

Defendant was tried jointly with his codefendant, McGinnis,

who the jury found guilty as defendant’s accomplice.2

Defendant appeals the resulting judgment of conviction,

raising seven assignments of error. In his first four assign-

ments, he argues that admitting codefendant McGinnis’s

recorded statements from a police interview and a jail

phone call at trial violated defendant’s confrontation rights

under Article I, section 11, of the Oregon Constitution and

the Sixth Amendment to the United States Constitution. In

his fifth assignment, defendant contends that the trial court

plainly erred in failing to give a cautionary instruction that

McGinnis’s statements were not admissible against defen-

dant. And in his sixth and seventh assignments, he argues

that the trial court erred in denying his motions to sever

his trial from McGinnis under ORS 132.560(3) and ORS

136.060(1), respectively.

Addressing defendant’s assignments of error in

the order the challenged rulings occurred at trial, we

reject defendant’s sixth assignment of error because he did

not establish case-specific prejudice of a joint trial with

McGinnis. We reject his seventh assignment because try-

ing him jointly with McGinnis was not “clearly inappro-

priate” based on the pretrial record. Defendant’s first four

assignments fail because they are unpreserved, and he did

not seek plain-error review in his opening brief. Finally, we

reject his fifth assignment because we conclude that any

error in failing to give a cautionary instruction is not plain.

We therefore affirm.

Because defendant’s claims of error implicate dif-

ferent standards of review, we provide historical and pro-

cedural facts necessary to explain our disposition in our

analysis of each assignment.

1

The trial court also found defendant guilty of felon in possession of a

firearm.

2

We recently affirmed McGinnis’s judgment of conviction on direct appeal.

State v. McGinnis, 344 Or App 583 (2025) (nonprecedential memorandum

opinion).

Cite as 344 Or App 648 (2025) 651

ORS 132.560(3) MOTION TO SEVER

The facts relevant to defendant’s sixth assignment

of error are limited to the record before the trial court at the

time of his motion to sever. State v. Hernandez-Esteban, 374

Or 300, 303, ___ P3d ___ (2025). Defendant was indicted

in May of 2018 for second-degree murder, about six months

after McGinnis was indicted for the same crime. In August,

the state moved to join defendant’s case with McGinnis’s

case. See ORS 132.560(1)(b)(B) (offenses may be charged

together if they are committed by the same persons and

are based on the same act or transaction); ORS 132.560(2)

(charging instruments may be consolidated on the same

grounds as (1)(b)).

Defendant filed a written response opposing join-

der and, alternatively, moving for severance under ORS

132.560(3) on the grounds that he would be substantially

prejudiced by joinder. Defendant contended that he would

not be able to call McGinnis as a witness at trial, in viola-

tion of his right to confrontation, and that the state’s case

against each defendant was “highly circumstantial.”

At the motion hearing in November 2018, the state

represented that defendant and McGinnis “committed the

murder together, as a team” and that it was pursuing an

aid-and-abet theory; that McGinnis had a motive to kill

R due to a “love triangle situation”; that defendant drove

McGinnis to the house where R was staying; that both men

were armed; that defendant killed R but they “both worked

together in concert to commit this murder”; and that there

were “no inculpatory statements or admissions by each

defendant pointing the finger at each other as the actual

offender.” Defense counsel argued that there was “potential

prejudice” because McGinnis’s statements “may come in

during trial” in violation of defendant’s confrontation rights

and that “it’s technically unfair for [the state] to have a

strong case against one defendant and a weak case against

another defendant, to join them so that the weaker case can

get tarnished with the same blush.”

The trial court granted the state’s motion to join

the cases and denied defendant’s motion to sever, because

652 State v. Hughes

the court concluded that “whether or not issues may arise at

trial in terms of testimony, in terms of statements by either

of the two defendants that might impact the trial of the

other defendant, * * * at this point that’s speculation.”

On appeal, defendant does not dispute that the cases

were properly joined but contends that the trial court erred

in denying his motion to sever under ORS 132.560(3). The

trial court has “discretionary power under ORS 132.560(3)

to sever charges [or cases] that otherwise have been prop-

erly joined” when a defendant moving for severance “has

met their burden to establish substantial prejudice—that

is, ‘the kind of potential injury or harm that threatens the

defendant’s interest in a fair trial.’ ” Hernandez-Esteban, 374

Or at 314 (quoting State v. Delaney, 370 Or 554, 566, 522 P3d

855 (2022)). A defendant must identify a case-specific the-

ory of substantial prejudice that is “more than the prejudice

that is an inherent risk of joining charges,” Delaney, 370 Or

at 575, and the facts stated in the motion must be supported

by the record, Hernandez-Esteban, 370 Or at 314. We review

whether a defendant established substantial prejudice for

legal error. Id.

Here, we conclude that defendant failed to establish

a case-specific theory of substantial prejudice supported by

the record. Defendant did not identify which of McGinnis’s

statements he believed would create an incurable confron-

tation issue, nor did he provide a factual explanation of why

he believed one case was weaker than the other. Because

defendant did not present a factual theory supported by the

record to establish the potential prejudice that he would suf-

fer resulting from the state’s decision to join his case with

McGinnis’s, the trial court correctly denied his motion to

sever under ORS 132.560(3). See Hernandez-Esteban, 374 Or

at 324.

ORS 136.060(1) MOTION TO SEVER

In February 2022, defendant again moved to sever

his case from McGinnis’s, this time under ORS 136.060(1)

on the grounds that it would be “clearly inappropriate”

to try him jointly with McGinnis under Bruton v. United

States, 391 US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968).

Cite as 344 Or App 648 (2025) 653

Defendant simultaneously moved for an order requiring the

state to “deliver to the court for inspection in camera any

statements or confessions made by any defendant that the

prosecution intends to introduce in evidence at the trial.”

ORS 136.060(2). Defendant contended that “[m]any of the

statements [in discovery] by codefendant McGinnis impli-

cate [defendant], and would be inadmissible against defen-

dant [ ] in a joint trial if [McGinnis] chooses not to testify.”

Defendant also cited Article I, section 11, of the Oregon

Constitution, but he did not present an independent argu-

ment for severance under that provision.

At the motion hearing, the court stated that it had

reviewed the proffered statements that the state intended

to introduce at trial. After hearing argument, the court

ruled that admitting McGinnis’s recorded statements to law

enforcement and to defendant would not violate defendant’s

confrontation rights, assuming that defendant established

McGinnis’s unavailability at trial. The court therefore con-

cluded that there was no basis to sever under ORS 136.060.

Defendant’s seventh assignment on appeal contends

that the trial court erred in denying his renewed motion to

sever under ORS 136.060(1). ORS 136.060 provides:

“(1) Jointly charged defendants shall be tried jointly

unless the court concludes before trial that it is clearly

inappropriate to do so and orders that a defendant be

tried separately. In reaching its conclusion the court shall

strongly consider the victim’s interest in a joint trial.

“(2) In ruling on a motion by a defendant for sever-

ance, the court may order the prosecution to deliver to the

court for inspection in camera any statements or confes-

sions made by any defendant that the prosecution intends

to introduce in evidence at the trial.”

ORS 136.060(1) “expresses a preference for joint trials

of jointly charged defendants” and “sets a standard that

requires no doubt or question that a joint trial will be ‘inap-

propriate’ ” based on the record made at the time of the

motion to sever. State v. Turnidge (S059155), 359 Or 364,

385, 388-89, 374 P3d 853 (2016). “Inappropriate” in this con-

text “means legally inappropriate, such that going forward

with a joint trial would be legal error” that “could likely

654 State v. Hughes

inject error into the trial that would result in either a mis-

trial in the course of the trial or a later reversal by an appel-

late court.” Id. at 388.

ORS 136.060(2) contemplates one such legally inap-

propriate circumstance—where a defendant cannot be tried

jointly with a codefendant without violating the defendant’s

Sixth Amendment confrontation right under Bruton—and

“provides the trial court with explicit authority to make a

record on which the court can assess whether any statement

or confession that the state intends to put into evidence at

trial would violate constitutional protections if the jointly

charged defendants are jointly tried.” Turnidge (S059155),

359 Or at 385, 388-89.

In Bruton, the Court held that a defendant is

deprived of their confrontation right under the Sixth

Amendment when a nontestifying codefendant’s statement

naming the defendant as a participant in a crime is admitted

in evidence in their joint trial, even if the jury is instructed

to consider the statement as substantive evidence against

the codefendant only. 391 US at 136-37. Bruton identified

a “narrow exception” to the principle that “a witness whose

testimony is introduced at a joint trial is not considered to

be a witness ‘against’ a defendant if the jury is instructed to

consider that testimony only against a codefendant,” given

the legal presumption that “jurors follow their instructions.”

Richardson v. Marsh, 481 US 200, 206-07, 107 S Ct 1702, 95

L Ed 2d 176 (1987).

“For the Bruton rule to apply, the nontestify-

ing codefendant’s out-of-court statement must ‘on its face’

incriminate the other defendant.” Turnidge (S059155),

359 Or at 390-91 (quoting Richardson, 481 US at 208-09).

Where the nontestifying codefendant’s statement “does not

expressly incriminate the other defendant, and instead

becomes incriminating ‘only when linked with evidence

introduced later at trial,’ no Bruton problem arises.” Id. at

391 (quoting Richardson, 481 US at 208). In such circum-

stances, any potential confrontation violation may be pre-

vented by instructing the jury to consider the codefendant’s

statements against the codefendant only.

Cite as 344 Or App 648 (2025) 655

On appeal, defendant argues that it was clearly

inappropriate to try him jointly because the state intended

to introduce at trial McGinnis’s statements in a police inter-

view and a jail phone call to defendant, which would vio-

late defendant’s confrontation rights under both Article I,

section 11, and the Sixth Amendment. He argues that “the

pretrial record establishes beyond doubt that legal error

was foreseeable due to the confrontation clause issues” and

that the trial court’s ruling as to McGinnis’s police inter-

view and jail call statements constituted legal error under

both Article I, section 11, and Bruton. The state responds

that defendant’s Article I, section 11, arguments are unpre-

served and that, in any event, it was not “without doubt or

question” that a joint trial would be clearly inappropriate.

Turnidge (S059155), 359 Or at 384. We agree with the state.

We first conclude that defendant failed to preserve

his arguments under the Oregon Constitution. Defendant’s

written motion discussed Turnidge (S059155), its construc-

tion of ORS 136.060, and its application of Bruton to the

facts in that case, which concerned the defendant’s Sixth

Amendment confrontation right. Although defendant

included a parallel citation to Article I, section 11, in his

motion, he did not cite any case law or develop an indepen-

dent argument under that provision. At the motion hear-

ing, defense counsel asserted that he was asking for sev-

erance “primarily on the Bruton issue,” never mentioned

Article I, section 11, and only cited case law applying the

Sixth Amendment, including Crawford v. Washington, 541

US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004) (overruling

Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597

(1980)), and Lucero v. Holland, 902 F3d 979, 988 (9th Cir

2018) (holding that only testimonial out-of-court statements

by a nontestifying codefendant are subject to Bruton).

To be sure, we have previously noted that, because

Oregon appellate courts “have treated Article I, section 11,

and the Sixth Amendment as coextensive with respect to

an accused’s right to confront witnesses,” “the guarantee in

Article I, section 11, offers at least as much protection as

the guarantee in the Sixth Amendment” pertaining to the

admissibility of a nontestifying codefendant’s confession.

656 State v. Hughes

State v. Johnson, 199 Or App 305, 309 n 1, 111 P3d 784,

rev den, 339 Or 701 (2005). However, the Article I, section

11, confrontation right is no longer coextensive with the

Sixth Amendment confrontation right. See State v. Cook,

340 Or 530, 540, 135 P3d 260 (2006) (explaining that, in

Crawford, the United State Supreme Court rejected the

Confrontation Clause test that it had announced in Roberts,

but that Oregon appellate courts continue to use the Roberts

test to analyze confrontation claims under Article I, section

11). In the absence of an argument developed below, we

decline to address defendant’s arguments under the Oregon

Constitution on appeal. See State v. Tryon, 242 Or App 51, 53

& n 1, 255 P3d 498 (2011) (declining to address unpreserved

confrontation clause claim under Oregon Constitution); cf.

State v. Neill, 216 Or App 499, 504 n 3, 173 P3d 1262 (2007),

rev den, 344 Or 671 (2008) (citing the Fourth Amendment in

a motion to suppress evidence did not preserve those argu-

ments on appeal where the defendant’s legal arguments

below were “grounded exclusively in Oregon law”).

Turning to the merits of his Sixth Amendment

claim, we conclude that Bruton does not apply here because

McGinnis’s statements in the police interview and the jail

phone call to defendant, on their face, do not inculpate defen-

dant. In the recorded police interview, McGinnis never iden-

tified defendant to police and continued to deny defendant’s

involvement even when police asked him directly to con-

firm that defendant was involved. And in the recorded jail

phone call to defendant, McGinnis directly inculpated only

himself. Thus, under Bruton and Richardson, any poten-

tial Sixth Amendment violation could have been avoided

by instructing the jury to consider McGinnis’s statements

against McGinnis only.3 Accordingly, the fact that the state

intended to introduce McGinnis’s recorded statements from

the police interview and the jail call at the joint trial did

not render the joint trial “clearly inappropriate” on the pre-

trial record, and the trial court correctly denied defendant’s

renewed motion to sever. See Turnidge (S059155), 359 Or at

3

As we explain in addressing defendant’s fifth assignment of error, at the

hearing on defendant’s pretrial motion to sever, defense counsel alerted the court

to the potential need for a limiting instruction with respect to McGinnis’s state-

ments as “a separate issue which we would ask to reserve,” but ultimately never

requested one.

Cite as 344 Or App 648 (2025) 657

391; cf. Johnson, 199 Or App at 309-10 (holding that join-

der was not “clearly inappropriate” on the pretrial record

because admitting a redacted version of the codefendant’s

confession and issuing a limiting instruction at trial would

sufficiently protect the defendant’s constitutional rights).4

ADMISSION OF CODEFENDANT’S RECORDED

STATEMENTS

Defendant’s first through fourth assignments of error

separately challenge the admission of McGinnis’s recorded

statements at trial, contending that doing so violated defen-

dant’s right to confrontation under both Article I, section 11,

and the Sixth Amendment. The state responds that these

claims of error are unpreserved because defendant did not

object to the admission of McGinnis’s recorded statements

at trial. The state acknowledges that defendant litigated

the confrontation issue presented by admitting McGinnis’s

statements in the pretrial motion to sever, but the state con-

tends that defendant never sought—and the trial court never

made—any conclusive ruling on whether admitting those

statements at trial violated defendant’s confrontation rights.

Preservation is “a doctrine rooted in practicality,

not technicality” that “serves a number of policy purposes,

but chief among them is fairness and efficiency—affording

both opposing parties and trial courts a meaningful oppor-

tunity to engage an argument on its merits and avoid error

at the outset.” State v. Skotland, 372 Or 319, 326, 549 P3d

534 (2024); see also State v. Quebrado, 372 Or 301, 313, 549

P3d 524 (2024) (observing that the “touchstone” of preser-

vation “is procedural fairness to the parties and to the trial

court” (internal quotation marks omitted)). To preserve an

issue for appellate review, a party’s objection must be “spe-

cific enough to ensure that the court can identify its alleged

error with enough clarity to permit it to consider and correct

4

We note that the court in Johnson applied the same rule as Bruton under

Article I, section 11—that is, it held that any potential Article I, section 11, con-

frontation violation for admitting a nontestifying codefendant’s confession could

be avoided by redacting any references implicating the defendant and instruct-

ing the jury that it may consider the codefendant’s confession only against the

codefendant. Thus, under Johnson, defendant’s claimed basis for severance under

Article I, section 11, would likely fail on the merits for the same reason we con-

clude that it fails under the Sixth Amendment.

658 State v. Hughes

the error immediately, if correction is warranted.” State v.

Wyatt, 331 Or 335, 343, 15 P3d 22 (2000).

We agree with the state that defendant failed to

preserve these claims of error. Defendant affirmatively

expressed that he had no objection when the state moved to

admit McGinnis’s recorded police interview and jail phone

call at trial. And defendant did not object to McGinnis’s

recorded statements when the state played them for the

jury. Although defendant argued that admitting McGinnis’s

statements at trial would potentially violate his right to

confrontation, he did so specifically in the context of his

motions to sever in which he acknowledged that the con-

frontation arguments were limited to his requested remedy

of severance and disputed whether either defendant would

actually be unavailable at trial. Accordingly, as noted,

the trial court’s severance ruling expressly did not deter-

mine whether defendant or McGinnis was unavailable but

instead contemplated that unavailability would need to be

established at trial—and defendant ultimately exercised his

right to testify, while McGinnis did not.

Because defendant never sought an independent

ruling that admitting McGinnis’s recorded statements at

trial violated his confrontation rights and never requested

exclusion of the evidence on that basis, we conclude that

defendant did not give the trial court a fair opportunity to

correct the claimed error. See State v. Mbaye, 341 Or App

87, 90, 572 P3d 362 (2025) (the defendant’s claim of error

was unpreserved because he failed to clarify the remedy

he desired). And we decline to reach defendant’s untimely

request for plain error review in his reply brief. State v.

Webb, 342 Or App 426, 446, 576 P3d 995 (2025) (“Insofar as

defendant requests plain error review in his supplemental

reply briefing, he waived the argument by failing to raise it

in his opening brief.”). We therefore reject defendant’s first

through fourth assignments of error.

LIMITING INSTRUCTION

In this fifth assignment of error, defendant con-

tends that the trial court plainly erred in failing to instruct

the jury that McGinnis’s statements were admissible only

Cite as 344 Or App 648 (2025) 659

against McGinnis and not against defendant. We conclude

that any error is not plain.

“Generally, an issue not preserved in the trial

court will not be considered on appeal.” Wyatt, 331 Or at

341. However, we have discretion to consider a “plain” error.

ORAP 5.45(1). An error is “plain” when it is an error of law,

the legal point is obvious and not reasonably in dispute, and

the error is apparent on the record without our having to

choose among competing inferences. State v. Vanornum, 354

Or 614, 629, 317 P3d 889 (2013). Whether an error is “plain”

is an issue of law. State v. Gornick, 340 Or 160, 167, 130 P3d

780 (2006).

As noted, the Bruton rule is a narrow exception to

the principle under the Sixth Amendment that “a witness

whose testimony is introduced at a joint trial is not con-

sidered to be a witness ‘against’ a defendant if the jury is

instructed to consider that testimony only against a code-

fendant.” Richardson, 481 US at 206-07. Thus, even when a

codefendant’s confession does not directly name the defen-

dant, the Sixth Amendment may be implicated if the jury is

not instructed to consider the confession against the code-

fendant only. Here, however, defendant never requested such

a limiting instruction, and it is not plain that the trial court

erred in failing to give one sua sponte. State v. Worsham, 373

Or 739, 748, 571 P3d 759 (2025) (“[I]t is generally impossible

for a trial court’s failure to give an unrequested custom sup-

plemental instruction to qualify as plain error.” (Emphasis

omitted.)); Delgado-Juarez v. Cain, 307 Or App 83, 95, 475

P3d 883 (2020) (“[A] trial court is not required to provide a

limiting instruction on its own motion[.]”). To the extent that

such an instruction may be necessary under ORCP 59 B as a

“matter[ ] of law necessary for [the jury’s] information in giv-

ing its verdict,” we observe that defendant did request, and

the trial court issued, Uniform Criminal Jury Instruction

1059, which states:

“Separate Consideration For Each Defendant: Although

the defendants are being tried together, you must consider

the case against each separately. In doing so, you must

decide what the evidence shows as to each defendant, with-

out considering any evidence that may have been received

660 State v. Hughes

solely against some other defendant or defendants. Each

defendant is entitled to have the case decided on the evi-

dence and on the law applicable to that defendant.”

However, that instruction presupposes that certain evidence

may have been received solely against one defendant. And

here, given defendant’s failure to object to the admission of

McGinnis’s statements at trial, it is not clear that McGinnis’s

statements were, in fact, admitted against McGinnis only.

We therefore reject defendant’s fifth assignment of error

because it is not plain.5

Affirmed.

5

Even if the error were plain, we would not exercise our discretion to correct

it because the record reflects that at the pretrial hearing on his motion to sever

defense counsel alerted the court to the potential need for a limiting instruction

with respect to McGinnis’s statements as “a separate issue which we would ask

to reserve,” but ultimately failed to request one. State v. Inman, 275 Or App 920,

935-36, 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (identifying the ease with

which any error could have been avoided or corrected as a “significant factor” in

whether to exercise discretion to correct a plain error).