State v. O'BRIEN

485 P.2d 434, 6 Or. App. 34

• Court: Court of Appeals of Oregon
• Decided: September 21, 1971
• Status: Published

Opinions

FORT, J.

Defendant was convicted by the court sitting without a jury of illegal possession of narcotics. ORS 474.020. He contends that (1) the court erred in allowing hearsay testimony and in denying a motion to strike the testimony; (2) the court erred in allowing testimony of another crime; and (3) the court erred in not allowing his motion for judgment of acquittal.

There was evidence establishing that one evening Russel Edmonds went to the New World Coffee House in Eugene where he encountered the defendant, Arthur Koivisto and Judy Freeman. After a few minutes a fifth person, Joe Lyda, joined them at the table.

At approximately 11 p.m., all left together in Miss Freeman’s car. Upon reaching the corner of 14th and High Streets in Eugene, they stopped. At this time all of the people in the car knew that the purpose of the stop was to purchase marihuana.

Lyda got out of the car and returned in about 10 minutes with a paper sack out of which he took a half-opened cigarette package which contained 12 hand-rolled cigarettes. Lyda sold five of the cigarettes to Koivisto for $5 and six of the cigarettes to Edmonds for $6. The cigarettes sold to Edmonds were identified at the trial as marihuana. Edmonds testified that after removing the package of marihuana cigarettes from it Lyda passed the paper sack around, that defendant entered into the conversation in the car regarding the marihuana, and further that Lyda then stated the paper sack contained twigs and seeds from his last shipment of marihuana and offered to sell it for $1. The defendant, immediately after looking into the sack, purchased it from Lyda for $1. Neither Edmonds nor Freeman, the state’s witnesses, saw the contents of the sack, and it was not produced at trial. Edmonds also testified that at a later date the defendant told him he had taken “the material” in the paper sack and with a knife chopped it up finer, put it into a matchbox and sold it for $5.

The principal assignments of error relate to the testimony of Joe Lyda, who the record shows was “currently under indictment and fleeing somewhere.” Defendant contends that any statements of Lyda made in the car in the presence and within the hearing of the defendant were inadmissible as hearsay. The court overruled this.

Edmonds testified:

“Mr. Lyda mentioned the fact that the sack contained some twigs of stems and seeds from which the shipment, the last purchase of his marijuana that he had bought to make the cigarettes, was contained in the paper sack, and that it was for sale for a dollar, and he said that there was approximately a match box full of twigs and stubble in the sack.”,

and later:

“Q And it is your recollection of Mr. Lyda’s statement that the material in the sack were the twig stems and seeds from the marijuana out of which the cigarettes were made?

“A Yes, sir.”

We note no objection was made on the ground that Lyda’s statement did not constitute the best evidence of what the sack contained.

The statement made by Lyda was relevant as a circumstance tending, together with those described above, to establish defendant’s belief that it was marihuana and his intent to buy it when, simultaneously with his examining what was in it, he paid $1 for the paper sack and its contents. This was admissible as an exception to the hearsay rule under ORS 41.900 (3).

① We note that no motion was made to establish or limit the purpose for which the statement was offered. See State v. Sieckmann, 3 Or App 454, 474 P2d 367 (1970). The assignment is without merit.

The next contention is that it was error to allow the testimony of Edmonds that defendant told him that he cut up the “material” in the paper sack a short time later and sold it for $5.

We have discussed the rules relating to evidence of other offenses in several recent cases. State v. Zimmerlee, 5 Or App 253, 483 P2d 111 (1971), rev’d 94 Adv Sh 15, — Or —, 492 P2d 795 (1972); State v. Hamilton, 5 Or App 266, 483 P2d 90, Sup Ct review denied (1971); State v. Tucker, 5 Or App 283, 483 P2d 825, Sup Ct review denied (1971). In accordance with those cases we hold, in the language of State v. Long, 195 Or 81, 116, 244 P2d 1033 (1952), such testimony was admissible “to show motive, design or purpose for the crime charged.”

The final error claimed is the failure to grant a judgment of acquittal. Defendant contends the state failed to prove possession of a usable quantity of marihuana. There was evidence one marihuana cigarette was worth $1. One cigarette is usable. There is testimony that defendant not only paid $1 for the contents of the paper sack, but after cutting it up sold it for $5. Such evidence amply supports a finding that the quantity he possessed was usable. We therefore do not reach the question whether possession of any of a narcotic drug as distinguished from a usable quantity constitutes a violation of the statute. We think the evidence amply supports the judgment, and accordingly that the motion was correctly denied.

The judgment is affirmed.

ORS 41.900:

“Evidence may be given of the following facts:

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“(3) A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto.

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