State v. Nixon

607 P.2d 1198, 43 Or. App. 927, 1979 Ore. App. LEXIS 3479
CourtCourt of Appeals of Oregon
DecidedDecember 31, 1979
DocketNo. 78-3152, CA 12319
StatusPublished

This text of 607 P.2d 1198 (State v. Nixon) 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. Nixon, 607 P.2d 1198, 43 Or. App. 927, 1979 Ore. App. LEXIS 3479 (Or. Ct. App. 1979).

Opinion

TANZER, J.

Defendant appeals his conviction by a jury of Solicitation to Commit Robbery in the First Degree, ORS 161.435 and 164.415. The basis of the charge was defendant’s solicitation of an undercover police officer and a police informant to assist him in an armed robbery of the Village Inn, a restaurant and motel complex near Springfield, Oregon. Defendant assigns fifteen rulings of the court as error. The first thirteen assignments relate to separate motions for mistrial which were denied.1 The fourteenth assignment of error contends a sawed-off shotgun was improperly admitted in evidence, and the final claim of error relates to impeachment of defendant’s testimony.

The mistrial assignments relate to the admission of several parts of the conversations between defendant, the informant and the officer. The trial court, aware of the inherently inflammatory quality of all aspects of the discussions of which the solicitation was a part, made separate rulings on separate objections to each topic of discussion. Balancing relevance against tendency to prejudice, either expressly or implicitly, see State v. Hockings, 29 Or App 139, 562 P2d 587, rev den 279 Or 301 (1977), cert den 434 US 1049 (1978), the trial court admitted, excluded or limited testimony as to each part. Generally, the trial court admitted evidence of defendant’s conduct which tended to show persuasion, preparedness and guilty mind, but rejected that evidence which tended to show that only slightly or not at all.

The trial court applied all the correct principles and we review to determine whether he applied them correctly. In reviewing the rulings, we must look to them in the context of the entire transaction, as did the trial court. Moreover, we bear in mind that in the gray area [930]*930between the clearly relevant and the clearly irrelevant, we tend to defer to the judge of the trial court for reasons stated in State v. Washington, 36 Or App 547, 550, 584 P2d 24, rev den 284 Or 341 (1978); and State v. Wampler, 30 Or App 931, 569 P2d 46 (1977), rev den 281 Or 99, cert den 436 US 960 (1978). That is all the law in this opinion; the rest is facts, and we take them from the state’s testimony.

The undercover officer, Anthony Nesbitt, and the informant, Frank Dykes, met defendant by prearrangement at a tavern to arrange to obtain a shotgun from defendant for use by Nesbitt and Dykes in a purported robbery. Dykes knew defendant, but Nesbitt did not. After some social activity, Dykes asked the defendant if he still had a shotgun for sale. Dykes said he wanted to borrow it and then said, "Well, I have something I want you to look at later.” Defendant replied, "I don’t need to know any more.” Dykes then said, "Don’t worry, its not Albertson’s, I’m not going to go into your territory.” Defendant’s only response was to laugh.

At defendant’s suggestion, they then went to a secluded place to continue their discussion. Dykes again asked defendant if he would supply the shotgun they requested. Defendant indicated he did not want to loan or sell the gun, but they could use it if he accompanied them with the gun. Later, during the conversation, he agreed to loan them the gun.

During the conversation, Dykes mentioned the name of a mutual acquaintance of his and defendant, called "Scratch.” Defendant became upset because he had heard that Scratch told some people about defendant and Scratch robbing a grocery store in Marion, Oregon. He felt he should take some action to discourage Scratch from talking about the robbery. Defendant then described the details of the Marion robbery, including the fact that he had used a sawed-off shotgun and that they had made their getaway by using country roads.

[931]*931Defendant then said he had planned future armed robberies at two locations in the Eugene-Springfield area. Defendant detailed a plan for the three of them to rob the Village Inn and steal money from the cash registers and money and valuables from the patrons while armed with sawed-off shotguns. He said he was prepared to shoot anyone who resisted. Defendant went over the plan and then the three men went to the Village Inn to look it over. There defendant reviewed the robbery plan twice more. Defendant said he would supply the weapons for the robbery. He said he had the sawed-off shotgun to loan the two men and another shotgun like it. He said he could acquire additional weapons from a friend who was a firearms distributor.

Nesbitt asked defendant if they should use masks so they could not be identified. Defendant said no, and at that point removed his hat, "slicked his hair back,” and removed his glasses and dentures. Nesbitt expressed surprise and defendant indicated he had used such a disguise in the Marion robbery.

They left the Village Inn and went to defendant’s home where he gave Nesbitt and Dykes a sawed-off shotgun. The understanding was that they were to return the gun in a few days. It was not, at that time, supplied for use in the planned Village Inn robbery.

Rebuttal testimony showed that approximately four days later, defendant told Dykes that he thought Nesbitt was a police officer and then described a plan to kill him. Defendant was arrested a short time later.

Marion Robbery

The trial court allowed evidence regarding defendant’s participation in the Marion robbery because it deemed the evidence relevant to show defendant’s solicitation. The trial court stated:

"THE COURT: Well, I think that — the initiation perhaps of that subject may have been prompted by [Dykes]. But I think it’s clear that the representation made to the officer and the persons he intended to [932]*932involve in the planned robbery was nevertheless a showing of expertise, and a factor, certainly, as far as a persuasion of those individuals concerning their prospective participation in the planned robbery.”

The trial court was entitled to conclude that this was relevant to show that defendant engaged in a bragging show of experience and expertise to persuade the other two to join him. The trial court allowed a general account, but disallowed excessive details. We conclude that the evidence was prejudicial in the permissible sense that it indicates guilt, but not necessarily in the sense that it tended to divert the jury from determining guilt or innocence of the crime at issue. Accordingly we conclude that the exercise of discretion was lawful.

Albertson’s and defendant's “territory.”

Evidence of the conversation regarding Albertson’s as defendant’s territory was relevant to demonstrate to the jury the tenor of the conversation of which it was a part. Cf. State of Oregon v. Long, 195 Or 81, 244 P2d 1033 (1952). It tended to explain why defendant would discuss his robbery plan with the two men. It was not sufficiently prejudicial to outweigh its tendency to make the state’s evidence credible.

The Threat to Kill Nesbitt

The state attempted, in its case in chief, to present evidence that defendant had planned to kill Nesbitt who he suspected of being a police officer. The court sustained defendant’s objection to the evidence and ruled that any relevance was outweighed by the prejudicial impact.

Then, defendant testified that he met with Nesbitt and Dykes, but denied he had planned the robbery.

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Related

State of Oregon v. Long
244 P.2d 1033 (Oregon Supreme Court, 1952)
State v. Wampler
569 P.2d 46 (Court of Appeals of Oregon, 1977)
State v. Hockings
562 P.2d 587 (Court of Appeals of Oregon, 1977)
State v. Washington
585 P.2d 24 (Court of Appeals of Oregon, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
607 P.2d 1198, 43 Or. App. 927, 1979 Ore. App. LEXIS 3479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nixon-orctapp-1979.