State v. Adams

754 P.2d 1, 91 Or. App. 24, 1988 Ore. App. LEXIS 589
CourtCourt of Appeals of Oregon
DecidedMay 11, 1988
Docket85-01-1423-C; CA A42168
StatusPublished
Cited by4 cases

This text of 754 P.2d 1 (State v. Adams) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Adams, 754 P.2d 1, 91 Or. App. 24, 1988 Ore. App. LEXIS 589 (Or. Ct. App. 1988).

Opinion

JOSEPH, C. J.

Defendant appeals his conviction for conspiracy to commit first degree arson. ORS 161.450; ORS 164.325. He assigns error to the denial of his motions for judgment of acquittal, in arrest of judgment and for a new trial based on newly discovered evidence. We affirm.

Defendant owned a building which was encumbered by a mortgage. On December 11, 1984, the mortgagee mailed defendant a notice of foreclosure. At that time, the property taxes were three years delinquent. On December 15, the building was destroyed by fire. Louis Smith admitted starting the fire. He testified that he burned the building after defendant offered him $500 to do it.

Smith testified that he had discussed the arson on two separate occasions with defendant. Shake Spear1 was present at the first of those conversations. He testified that he had heard everything said between defendant and Smith and that nothing was said about any fire or arson. Smith testified that the second conversation took place at a tavern about a week before the fire and that it was during that conversation that defendant offered him $500 to burn the building.

Keen testified that, a few days before the fire, he had overheard part of a conversation at the tavern between defendant and Smith. He said that, as he approached the table where defendant and Smith were sitting and talking, Smith said something to defendant that Keen could not hear and defendant replied that he “would pay $500 to do the building.” A few nights later, on December 14, Smith approached Keen at the tavern and asked Keen to drive him to his motel room so that he could “get his gas cans and stuff.” Keen drove Smith to the motel room. Smith went to his room and came back with gas cans, and Keen dropped him off near defendant’s building. Keen thought that Smith “was going to burn something.” Keen then drove away and Smith, according to his own testimony, proceeded to burn the building.

Defendant denied asking Smith to burn the building or having any involvement with the fire. There was conflicting [27]*27evidence as to whether defendant had a financial motive for burning the building.

After the jury returned a guilty verdict, defendant moved for a new trial on the basis of newly discovered evidence: two statements that Keen had allegedly made to McLean, a friend of defendant’s. At the hearing on the motion, McLean testified that Keen told him that he had never overheard any conversation between defendant and Smith. McLean also testified that Keen told him that “he basically don’t know nothing about [the arson]” and that what he did know he learned from Smith.

Defendant first assigns error to the denial of his motion for judgment of acquittal made after the close of state’s case. He points out that the testimony of an accomplice must be corroborated, ORS 136.440(1),2 and argues that Keen’s testimony was insufficient to corroborate accomplice Smith’s testimony.3 Keen testified that he heard Smith say “something” to defendant and that defendant replied that he “would pay $500 to do the building” and that he, Keen, assisted Smith in procuring gas cans and transporting them. No other evidence corroborates Smith’s testimony. The issue of corroboration is for the jury if there is some evidence, however slight, besides the accomplice’s testimony which tends to connect the defendant to the crime. State v. Schoen, 34 Or App 105, 110, 578 P2d 420, rev den 283 Or 503 (1978). Even if Keen’s testimony were only slight corroboration, it was nonetheless sufficient to get the issue to the jury.

Defendant next contends that the trial court erred in denying his post-trial motion in arrest of judgment. See ORS 136.500. He argues that the information on which he was tried [28]*28fails to state a crime. ORS 135.630(4). The information provides:

“Said defendant on or about December 15, 1984, in Harney County, Oregon, did unlawfully with the intent that conduct constituting the crime of Arson in the First Degree, punishable as a felony be performed, agree with Louis Sterling Smith to cause the performance of the following conduct: to unlawfully and intentionally damage protected property, to wit: the dwelling house situated at 1060 S. Egan, Burns, Oregon, the property of Delmar Adams, by starting a fire, contrary to the statute in such cases made and provided.”

Defendant contends that the information fails to state a crime, because it does not allege that the property is “of another,” an element of arson. ORS 164.325; ORS 164.305. The information does not allege all of the elements of arson. However, it is not meant to charge arson, but only conspiracy to commit arson.

In State v. Sanders, 280 Or 685, 572 P2d 1307 (1977), the court held that an indictment for burglary must specifically allege the underlying crime that the defendant intended to commit when he entered the building. The court did not, however, hold that each element of the underlying crime must be pleaded. See also State v. Trow, 56 Or App 478, 483, 642 P2d 1178, rev den 293 Or 394 (1982). An indictment or information charging conspiracy to commit first degree arson need not allege all the elements of arson in the same detail as required in an arson information. See 16 Am Jur 2d 245, “Conspiracy,” § 31. The failure to allege that the property was “of another” is not fatal.

We next address whether the information adequately charges a conspiracy to commit first degree arson. The purposes of an information are to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, to identify the offense so as to enable the defendant to avail himself of a conviction or acquittal if he should be prosecuted again for the same cause and to inform the court of the facts charged so that it can determine whether they are sufficient to support a conviction. State v. Cohen, 289 Or 525, 529, 614 P2d 1156 (1980); State v. Sanders, supra, 280 Or at 687-88. The information here contains the specific address of the property defendant conspired to burn, an [29]*29approximate date, a specific charge of intention to bring about arson in the first degree and an allegation of agreement with, and the name of, a co-conspirator. That satisfies the requirements for an information. If defendant needed more specific information to prepare his defense, he could have availed himself of discovery. ORS 135.805 et seq.

Finally, defendant also assigns error to the denial of his motion for a new trial. The motion is addressed to the discretion of the trial court. State V. Clayton,

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Cite This Page — Counsel Stack

Bluebook (online)
754 P.2d 1, 91 Or. App. 24, 1988 Ore. App. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-adams-orctapp-1988.