State v. Clifford

• Decision Date: 27 December 1971
• Citation: 8 Or.App. 494,491 P.2d 1195
• Parties: STATE of Oregon, Respondent, v. Richard Sheldon CLIFFORD, Appellant.
• Court: Oregon Court of Appeals

Page 1195

491 P.2d 1195

8 Or.App. 494

STATE of Oregon, Respondent, v. Richard Sheldon CLIFFORD, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Oct. 26, 1971.

Decided Dec. 27, 1971.

Tyler Marshall, Portland, argued the cause for appellant. With him on the brief were Tamblyn, Bouneff, McLennan, Muller, Marshall & Hawkes, Portland.

Al J. Laue, 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 LANGTRY and FORT, JJ.

SCHWAB, Chief Judge.

Defendant was convicted after a jury trial of three counts of being an accessory after the fact, ORS 161.230, to two murders and the crime of Taking Away Child with Intent to Detain from Parent, all committed by one Douglas Wright. The sole assignment of error that merits discussion is that the trial court erred in failing to grant defendant's motions for judgment of acquittal at the end of the state's case and at the end of all the evidence.

It was not disputed at trial that late September 1, 1969, or early September 2, 1969, Douglas Wright killed one Gail Snelling and her mother, Margaret Rosenberry, in the Snelling home. Nor was it disputed that after these two murders, Douglas Wright took Gail Snelling's five-year-old son by a former marriage with him when he left the Snelling home. Whether the present defendant did anything after September 2, 1969, that woudl make him an accessory after the fact to these crimes was hotly disputed at trial.

The statute under which defendant was charged provides:

'All persons are accessories who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction or punishment.' ORS 161.230 In order to be convicted under this statute the defendant must have done a Specific act, this is, 'conceal or aid,' with two separate Mental elements, that is, (1) 'knowledge that (the person aided) has committed a felony,' and (2) 'intent that (such person) may (avoid the consequences of his crime).' No issue has been raised on appeal as to whether the state presented adequate evidence on the two mental elements for these questions to be submitted to the jury. The sole question is whether the evidence, viewed in the light most favorable to the state, was sufficient to go to the jury on the issue of whether defendant did any specific act that amounted to concealing or aiding Wright.

The state argues there was evidence that defendant concealed or aided Wright in that: (1) there were meetings between defendant and Wright; (2) defendant attempted to intimidate a witness; and (3) defendant lied to police officers searching for Wright.

As noted above, Wright had completed the three principal crimes by the early morning hours of September 2, 1969. There is testimony from which the jury could have found that defendant had three meetings with Wright in the weeks that followed. One was the evening of September 2 or 3, when Wright, and one Jerry Repue talked and played pool with defendant in a tavern. Another was the evening of September 2, 3 or 4, when Wright and Jerry Rapue visited defendant at his home. The final meeting occurred in early October when defendant traveled to the Trippett residence where Wright was then staying.

None of the witnesses for the state testified as to what transpired at these meetings. In its brief the state here argues:

'* * * It is understandable that there is no direct evidence of what was discussed at these meetings, but * * * the jury could reasonably infer that these meetings aided Wright to some degree.'

We disagree. For the jury to reach such a conclusion would have been sheer speculation, not a reasonable inference from any evidence in the case.

The state's evidence concerning possible intimidation of a witness was developed through the testimony of Dee Willems, who was living with defendant for many months both before and after the events of September 1969. Although her testimony was confused and frequently contradictory, from it the jury could have found that at some point defendant threatened to throw battery acid in her face if she ever testified against him or Wright, or both, and made general statements to the effect that informers deserve to die.

The problem we have with this evidence is that it was never established when these threats were made. From all appearances in the record, they were made before September of 1969. Even assuming that threats made to a potential witness would be 'aiding' under ORS 161.230, such threats would have to have been made After the commission of the principal's crime. There was no such evidence in this case.

This brings us to what we view as the central question presented in this appeal. There was evidence from which the jury could have found that when questioned by two police detectives on September 5, 1969, the defendant was asked if he had recently seen Wright, and answered in the negative, and that defendant's reply was not truthful. Does defendant's lie constitute sufficient evidence to go to the jury on the question of whether that lie was an act that amounted to 'concealing or aiding' Wright within the meaning of ORS 161.230?

In State v. Rosser, 162 Or. 293, 345, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295, 300 (1939), the Oregon Supreme Court approved an instruction that stated, 'if * * * (the...