State v. Voit

• Decision Date: 27 April 1973
• Parties: STATE of Oregon, Respondent, v. Virginia VOIT, Appellant. STATE of Oregon, Respondent, v. Doris (Dennis) STRONG, Appellant.
• Court: Oregon Court of Appeals

Page 734

506 P.2d 734

12 Or.App. 520

STATE of Oregon, Respondent, v. Virginia VOIT, Appellant.

STATE of Oregon, Respondent, v. Doris (Dennis) STRONG, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 1972.

Decided Feb. 26, 1973.

Rehearing Denied March 22, 1973.

Review Denied April 27, 1973.

August F. Hahn, Long Beach, Wash., argued the cause for appellants. With him on the brief was Miles Sweeney, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

SCHWAB, Chief Judge.

On Monday, January 24, 1972, at 1:40 a.m., a police officer on routine patrol saw a station wagon parked on the shoulder of the Lombard Street Extension south of Marine Drive, near the Portland airport. He discovered the body of Joseph Voit, Jr., lying on its side on the front passenger seat. Death was caused by skull injuries inflicted by blows with a blunt instrument. No weapon was found at the scene. The wallet of the decedent was missing. The record does not indicate that anything of particular value was found on the body.

The decedent's wife, Virginia Voit, and her sister Doris (Dennis) Strong were indicted and upon trial by jury were found guilty of the murder. ORS 163.115. On appeal, the determinative issue is whether there was sufficient evidence to support the conviction. For the reasons which follow, we find that there was not.

At the trial, four airport employes testified they saw the station wagon parked on the Lombard Street Extension early Sunday morning, January 23, before 8:30 a.m. Three of those employes had driven the same route to or from work the previous night, past the point where the car was later found. One of them, a Miss Schonert, testified that she had seen the car parked there on Saturday night, January 22, 1972, between 10:30 and 10:45 p.m. She admitted that visibility was poor that night, and that her opportunity for observation was limited to about three seconds. The other two witnesses, who passed the same place within an hour after Miss Schonert, testified they did not see the car there that night.

Both defendants made statements to the police and testified at trial as to their activities at all relevant times.

Virginia Voit's testimony was as follows. On Saturday, January 22, 1972, her husband was out in the afternoon, and returned home before dinner, somewhat intoxicated. Dinner consisted of rice, stew meat, gravy, corn, and either a salad or pickles, followed by strawberries over cake. He finished cinner between 7:30 and 8 p.m. Mr. Voit went to sleep on the couch. At approximately 10 p.m., Mrs. Voit received a call from the other defendant, Doris Strong, who had driven from her home in Long Beach, Washington, to the Jantzen Beach area in Portland, and needed directions to get to the Voit house. When she was unable to understand Mrs. Voit's directions, Mrs. Voit agreed to meet her so that Doris Strong could follow her home. Mrs. Voit drove the station wagon to the place where she was to meet Doris, and they had coffee in the adjacent Denny's restaurant. They observed a county sheriff in the restaurant interviewing people.

Doris Strong followed Mrs. Voit to the Voit home. Shortly after their arrival, they began playing Pinochle and drinking bourbon with Joseph Voit. An argument ensued, and Mr. Voit threatened to shoot Doris Strong. Such threats by Mr. Voit were common and were not taken seriously. ¹ He put on his jacket and left the house, telling Doris Strong he wanted her out of the house before he returned. The defendants did not see Mr. Voit alive again.

After Mr. Voit's departure, Mrs. Voit and Doris Strong had coffee and sandwiches. Doris Strong left to return to her home at a time Mrs. Voit did not recall. Mrs. Voit went to sleep. About 4 a.m., Sunday morning, she woke up and telephoned Doris Strong's home in Long Beach to see if she had arrived home safely. Mary Lou Strong answered the telephone and advised Mrs. Voit that Doris Strong had not yet returned home.

Defendant Doris Strong is a sister of defendant Virginia Voit. Some years prior to the murder of the decedent, Doris Strong had assumed the identity of a deceased brother named Dennis and had assumed a man's role since that time. Doris Strong, under the name of Dennis Strong, had lived with Mary Lou Strong at least since May 11, 1967. Mary Lou Strong testified that they went through a marriage ceremony on that date. They lived in Long Beach, Washington, were employed by the Ocean View Rest Home, and had owned a western-wear store in that city for approximately four years.

Some time after Mrs. Voit's call, Doris Strong returned home. Mary Lou Strong called Mrs. Voit that morning, January 23, at about 7:30 a.m., and advised Mrs. Voit that Doris had returned safely. Mrs. Mvoit told her that Mr. Voit had not yet returned home.

The morning of January 23, Mrs. Voit telephoned the police, hospitals, and Mr. Voit's friends, Darrell Alcorn and Roy Mattinen, in an unsuccessful attempt to locate Mr. Voit. Mr. Alcorn and Mr. Mattinen were called as witnesses by the state, and verified receiving these calls from Mrs. Voit.

Mrs. Voit also contacted Mr. Voit's sister and brother-in-law, Mr. and Mrs. Carney. The Carneys and Mrs. Voit searched unsuccessfully for Mr. Voit, checking at taverns and clubs that he customarily frequented.

Mrs. Voit and the Voits' 2-year-old daughter stayed at the Carney home from Sunday afternoon until contacted by the police the following morning. Mrs. Voit had advised a neighbor of her whereabouts and asked to be contacted at the Carney home when Mr. Voit returned. Following discovery of the body in the station wagon, which was registered in Mrs. Voit's name, the police were able to locate Mrs. Voit through the neighbor. On Monday morning, January 24, police arrived at the Carney home and had Mr. Carney go to the morgue to identify the body of Mr. Voit.

Mrs. Voit testified that at the time of Mr. Voit's death she was planning to divorce him because they were incompatible. After his death she learned for the first time of the existence of life insurance benefits through Mr. Voit's employment amounting to $8,000. There is no evidence in the record that Mr. Voit had any other assets of consequence.

The testimony of Doris Strong concerning the events of January 22 was consistent with the testimony of Mrs. Voit. Her time card at the Ocean View Rest Home showed that on January 22 she punched in for work at 11:09 a.m., and punched out at 7:53 p.m. Upon leaving work, she decided to visit her sister, Mrs. Voit, in Portland. Police detectives testified that the trip from Long Beach to Portland takes at least two hours. Upon reaching the Jantzen Beach area some time after 10 p.m., Doris Strong telephoned Mrs. Voit seeking directions to the Voit home. She was unfamiliar with that area, having been to the Voit home on only one prior occasion, and could not understand Mrs. Voit's directions. When Mrs. Voit arrived at the Jantzen Beach area, the two went to Denny's restaurant for coffee. While at the restaurant, Doris Strong noticed that the personnel changed shifts. The assistant manager of the restaurant testified that the shift change takes place at 11 p.m. Doris Strong also noticed a deputy sheriff questioning employes of the restaurant, and she was told by a waitress that it concerned a missing girl. Sometime after the shift change, Doris Strong and Mrs. Voit left the restaurant, and drove separately to the Voit home. Doris Strong observed that Mr. Voit had been drinking, but did not appear drunk. Following the argument over cards, Mr. Voit left the home, probably around midnight. She and Mrs. Voit had coffee and sandwiches, and she then returned home, arriving some time after 4 a.m.

An autopsy performed by Dr. Lewman, a pathologist, established that the cause of death was four blows to the head on the right side above the ear. The proximity of the blows and the lack of hemorrhage on the left side of the head led Dr. Lewman to conclude that decedent's head was resting against something soft and was probably immobile when the blows were struck. However, he testified further that the first blow to the head probably caused unconsciousness and could have been rendered while decedent was erect.

Dr. Lewman examined the stomach contents of the decedent, and found a quantity of pickles, celery and strawberries. Based on the rate of digestion of these materials, he concluded that death had occurred two to four hours after decedent ate those foods. Relying on information from the sheriff's office that decedent had eaten before 7:30 p.m., he gave his opinion that death had occurred between 9:30 p.m. and 11:30 p.m.

Dr. Lewman further testified that he had found no evidence in the stomach of the other foods that decedent was reported to have eaten at 7:30 p.m., although there was well-digested food found throughout the intestine. He testified that he had reached his conclusion as to time of death by rejecting the information that decedent had also eaten stew meat, gravy, rice and corn. Inasmuch as beef, corn and rice digest slower than the matter found in decedent's stomach, Dr. Lewman concluded that either decedent did not eat the meat, corn and rice at 7 p.m., or decedent ate the pickles, celery and strawberries at least two hours after dinner, and death had occurred at least two hours after that, some time after 11:30 p.m.

A sample of decedent's blood showed a blood-alcohol level of .25 percent by weight, more than twice the amount which supports a presumption that a person is under the influence of intoxicating liquor. ² The state's witnesses placed the decedent at two taverns on the afternoon of January 22, and testified that he consumed a maximum of seven beers by 6:30 p.m. Based on that information, Dr. Lewman concluded that...