State v. Crenshaw

• Decision Date: 01 July 1971
• Citation: 6 Or.App. 55,486 P.2d 581
• Parties: STATE of Oregon, Respondent, v. Oliver Lee CRENSHAW, Appellant.
• Court: Oregon Court of Appeals

Page 581

486 P.2d 581

6 Or.App. 55

STATE of Oregon, Respondent, v. Oliver Lee CRENSHAW, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted May 18, 1971.

Decided July 1, 1971.

Gary D. Babcock, Public Defender, Salem, argued the cause for appellant. With him on the brief was Benhardt E. Schmidt, Portland.

Thomas H. Denney, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

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

THORNTON, Judge.

Defendant was convicted of second degree murder by allegedly 'pushing or shoving' Irene Marty over a cliff into the Columbia river gorge. He appeals on several grounds, including that there was not sufficient evidence to make a jury question. We agree.

The evidence of the alleged crime was entirely circumstantial. About noon on the day of the episode defendant became acquainted with a man named Leonard Pruchniewski in a secondhand store in east Multnomah County operated by defendant's brother. Soon thereafter defendant and Pruchniewski went across the street to a tavern. They began drinking beer. In a few minutes they became acquainted with Irene Marty, who had entered the tavern and was arguing with the tavern keeper for refusing to serve her because she was allegedly intoxicated. Shortly thereafter, at Irene's request, the three went to another tavern in defendant's car where they consumed more beer.

After several hours' drinking they bought 12 bottles of beer and drove out along the old Columbia river highway in the direction of the Vista House. During the trip both men made certain advances toward Irene which apparently were in no way rebuffed. Arriving at a turnout near the gorge about one mile west of the Vista House, the three got out of the car, then stood around for a few minutes drinking. At Pruchniewski's suggestion the trio then decided to go down a very steep trail leading from the turnout in the direction of the river, to continue their drinking and possibly engage in other activities. Defendant testified that Pruchniewski repeatedly expressed concern that defendant would drive off and leave him and therefore insisted that he go down the trail also. All three were intoxicated.

Defendant testified that he was unfamiliar with the terrain and unaware of the existence of the cliff until some time after the incident occurred. The evidence was that the edge of the cliff, though only 250--300 ground feet distant, was not visible from the turnout nor from the trail because of the dense foliage. Defendant stated that after they had gone a few steps and were standing in a small open area, Pruchniewski suddenly and without any provocation struck him in the mouth sending him tumbling head-over-heels some 75 to 100 feet down the steep incline. Defendant said that when he stopped tumbling he could no longer see either of his companions, although he did hear the sound of something moving through the brush. He slowly made his way back up the slope to the road, but by a different route in order to avoid a further encounter with his alleged assailant. There was evidence that both the defendant and Pruchniewski received some visible bruises and abrasions during the afternoon. When defendant reached the road Pruchniewski was waiting, but Irene was nowhere to be seen. When defendant inquired as to her whereabouts and suggested going back down to get her, Pruchniewski said he was 'too drunk to go back down there.'

After more discussion, in which defendant claimed he urged that they go back for Irene and his companion insisted he was too drunk to go back, they left the area and returned to the brother's secondhand store. By now it was late afternoon or early evening. Although several persons were in the store, his brother was not there. Defendant and others testified that during the discussion that followed, Pruchniewski stated that 'nothing had happened' to the woman; that 'she got back and walked off.' Defendant requested Pruchniewski to stay there and await his brother's return, who would then assist them in deciding what to do about the missing woman. Despite defendant's request, Pruchniewski suddenly bolted and went back to the same neighborhood tavern. When the brother did not return, defendant persuaded two of his friends who were in the store to go out and search for the woman. This they did, but the defendant could not identify the turnout. A day or so later another search was instigated by defendant and two other acquaintances without success. Pruchniewski did not testify at the trial. ¹

The evidence offered by the state consisted mainly of testimony of defendant's friends and relatives to whom he had voiced various statements of concern and anxiety over the disappearance of the woman. There also was testimony that defendant, in response to inquiries by a police officer, had falsely informed the officer that he had let the woman out of his car in Gresham on the day of the incident. Defendant admitted this false statement prior to trial. In addition he had told his former landlady that the woman had...