State v. Roper

578 P.2d 479, 34 Or. App. 273, 1978 Ore. App. LEXIS 2448
CourtCourt of Appeals of Oregon
DecidedMay 8, 1978
DocketNo. C77-04-05664, CA 9261
StatusPublished
Cited by2 cases

This text of 578 P.2d 479 (State v. Roper) 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. Roper, 578 P.2d 479, 34 Or. App. 273, 1978 Ore. App. LEXIS 2448 (Or. Ct. App. 1978).

Opinion

JOSEPH, J.

Defendant appeals his conviction of conspiracy to commit robbery in the first degree. ORS 161.450.1 He assigns as error the denial of a motion for judgment of acquittal and the exclusion of the testimony of four witnesses. The motion for acquittal was based on two grounds: first, the purported failure of the state to prove venue in Multnomah County and, second, the failure of the state to prove an agreement to rob the specific victim named in the indictment.

On March 2, 1977, Billy Ray Small and Lynette Repp had a conversation in Multnomah County concerning the prospects of robbing a certain business firm located in that county. Defendant was not present. During the succeeding days, Small, Repp, defendant and others met several times and developed a plan for robbing the store. All of those meetings took place at Small’s home in Clackamas County. The evidence sufficiently established that during the course of one of the meetings defendant agreed to take part in the robbery and that he so agreed with the requisite intent.

The robbery was committed on March 8, and there was some evidence that defendant was actually among the robbers. The robbery did not go as planned. The woman whom Repp had said would be able to open the safe had gone home earlier than usual that evening. No other employee could open the safe. Another employee did give the robbers money that was in the cash drawer.

Defendant argues that the state failed to prove venue in Multnomah County. He contends that the conspiracy was complete when he entered into an [276]*276agreement with the others in Clackamas County. ORS 131.305(1), the general venue section, provides:

"Except as otherwise provided in ORS 131.305 to 131.415, criminal actions shall be commenced and tried in the county in which the conduct that constitutes the offense or a result that is an element of the offense occurred.”

ORS 131.315(9) provides:

"If the offense is criminal conspiracy, trial of the offense may be held in any county in which any act or agreement that is an element of the offense occurs.”

An overt act in furtherance of the conspiratorial purpose is no longer an element of criminal conspiracy in Oregon.2 Therefore, applying the language of ORS 131.315(9) literally, venue could lie only in Clackamas County.

It might well have been, however, that in enacting ORS 131.315(9) as a "special” venue provision for conspiracy the legislature intended to permit the trial of a criminal conspiracy case in any county where an agreed upon substantive crime was committed or where an overt act in furtherance of the crime was performed, as well as where the agreement was made. Considering the difficulty of proving where the agreement itself was reached in some cases, the legislature may have determined that a venue provision broader than the general one in ORS 131.305 was necessary.3 If that was not the intent, it is difficult to understand why ORS 131.315(9) was enacted at all; but if that was the intent, the language was ill chosen.

[277]*277Contrary to defendant’s argument, the proper interpretation of ORS 131.315(9) is not an issue we need reach in this case. ORS 131.315(10) provides:

"A person who in one county commits an inchoate offense that results in the commission of an offense by another person in another comity * * * may be tried in either county.”

Conspiracy is one of the inchoate crimes defined in ORS ch 161. The result of the conspiracy in this case, the store robbery, was within the language of ORS 131.315(10), and so the case was properly tried in Multnomah County.

As his second ground for acquittal defendant asserted that the state failed to prove the intended victim of the robbery was one Mayciel Reagan, as alleged in the indictment. It is true that there was no evidence that Mayciel Reagan had been mentioned by name during the planning of the robbery. As an employee of the store she was among the class of persons contemplated as victims. A variance between indictment and proof does not constitute reversible error unless the variance has misled or prejudiced a defendant in presenting a defense or has exposed him to the possibility of being put twice into jeopardy for the same offense. State v. Schindler, 20 Or App 400, 531 P2d 915, rev den (1975); State v. Hanson/Hughes, 14 Or App 586, 513 P2d 1202, rev den (1973). Defendant does not contend that he was prejudiced in any way by the allegation of a specific targeted victim. The motion for judgment of acquittal was properly denied.4

Finally, defendant assigns as error the refusal of the circuit court to allow four proffered defense witnesses to testify. That testimony, it was represented, would have established that defendant was not with [278]*278the other robbers at Small’s house immediately after the robbery, as two state’s witnesses had testified, but had taken a cab to the house of another friend, where he remained for at least two hours.

The trial court stated two alternative grounds for excluding the testimony. First, the court ruled that the defendant had failed to comply with the provisions of ORS 135.455(1),5 requiring notice of intent to rely upon alibi witnesses, and had shown no good cause for the noncompliance. Defendant argues that the testimony was not within the ambit of ORS 135.455(2):

"As used in this section 'alibi evidence’ means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed.”

We agree with defendant on this point. The conspiracy was complete when defendant agreed with the others to rob the store. Although the proffered testimony concerned defendant’s whereabouts, it did not relate to "* * * the time of commission of the alleged offense.”

The trial court, however, stated an alternative ground for its ruling: [279]

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Related

State v. Werdell
122 P.3d 86 (Court of Appeals of Oregon, 2005)
State v. Roper
595 P.2d 1247 (Oregon Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
578 P.2d 479, 34 Or. App. 273, 1978 Ore. App. LEXIS 2448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-roper-orctapp-1978.