State v. Gailey

• Decision Date: 26 August 1986
• Citation: 301 Or. 563,725 P.2d 328
• Parties: STATE of Oregon, Respondent on review, v. Mark Edward GAILEY, Petitioner on review. CC 44751; CA A36510; SC S32500.
• Court: Oregon Supreme Court

Page 328

725 P.2d 328

301 Or. 563

STATE of Oregon, Respondent on review, v. Mark Edward GAILEY, Petitioner on review.

CC 44751; CA A36510; SC S32500.

Supreme Court of Oregon.

Argued and Submitted May 7, 1986.

Decided Aug. 26, 1986.

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.

Douglas F. Zier, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

JONES, Justice.

Defendant was convicted by a jury of first degree burglary. Defendant appealed, contending that the trial court erred in admitting testimony regarding defendant's alleged participation in a prior burglary. The Court of Appeals affirmed without opinion, 77 Or.App. 197, 712 P.2d 185, and defendant petitions this court for review. We reverse the Court of Appeals.

FACTS

On the morning of March 21, 1985, Mary Ellen Burke drove to her house near Corvallis in Benton County and saw a turquoise Chevrolet automobile that she did not recognize parked in her driveway. When she entered her house, Mrs. Burke noticed a door that should have been locked standing ajar and found a jewelry box from the bedroom on the dining room table. In the bedroom, dresser drawers and contents were scattered on the floor.

Mrs. Burke immediately telephoned the Corvallis police to report that her house had been burglarized. She told them the first three letters of the Chevrolet's license plate, "GET," and that the car had a "USA-1" front license plate. While she was talking to the police, two men approached the front door of the house and rang the doorbell. She handed the telephone to her son and answered the door. The men told her that they had dropped off two hitchhikers and had agreed to meet them at the Burke house but could not find them. Mrs. Burke told the men that her house had been burglarized and she had called the police. The two men quickly got into the Chevrolet and left.

A Benton County deputy sheriff radioed Mrs. Burke's description of the Chevrolet to local police. At 11:30 that morning two miles from the Burke residence, a Corvallis police officer stopped defendant's vehicle, an aqua Chevrolet Nova with a "USA-1" front license plate and license plate number "GET 678." When questioned, defendant told the officer that he had left two hitchhikers at the Burke house and later became suspicious of them and returned to the house. When he returned, he saw the two hitchhikers running away from the Burke house.

Defendant was taken to jail and charged with the March 21 burglary of the Burke house. When police searched defendant's car, they discovered jewelry later determined to have been stolen from a house in Lane County near Eugene on March 20, 1984. They also seized surgical gloves and a crowbar but did not recover from defendant or his car any property stolen from the Burke house. No fingerprints from defendant or his passenger were found in either of the two burglarized houses.

In a pretrial hearing, the state sought to introduce evidence concerning the March 20 Lane County burglary of the residence of Mr. and Mrs. Place. Jewelry found in the trunk of defendant's car had been identified as being stolen from the Place residence. The state argued that the evidence of the March 20 burglary would show defendant's knowledge, intent or lack of mistake concerning the March 21 burglary. Defendant contended that the evidence of the March 20 burglary was not relevant to the March 21 burglary and, if relevant, its probative value would be outweighed by the prejudicial effect on the jury. The trial judge overruled defendant's objections and allowed the state to introduce evidence of the prior burglary to show knowledge, intent, style and absence of mistake.

At the ensuing trial, the state offered evidence and testimony from several witnesses regarding the March 20 burglary. One witness, Joyce Place, testified that on March 20 she discovered that her house had been burglarized and jewelry stolen. This was the jewelry that police later seized from defendant's car after his arrest. A neighbor of Place, Nanette Hoskins, testified that on March 20 she became suspicious of an unfamiliar blue car parked near her house. Hoskins wrote down the car's license plate number, which was GET 678.

After the testimony of Hoskins and Place, the judge instructed the jury that evidence of the March 20 burglary could be considered "only on what bearing you find that it has on the defendant's knowledge or intent or lack of mistake in relation to the crime charged here in this indictment which occurred on March 21st." The jury convicted defendant of the March 21 burglary.

We allowed defendant's petition for review, together with State v. Johns, 301 Or. 535, 725 P.2d 312 (1986), and State v. Allen, 301 Or. 569, 725 P.2d 331 (1986) to decide whether the similar crime evidence in this case is admissible under OEC 404(3).

If defendant was found with property stolen from the Burke residence, such evidence clearly would be admissible as circumstantial evidence of guilt, although it also might be evidence of another crime, to wit, theft in the first degree, ORS 164.055, or concealing stolen property, ORS 164.095. But does evidence that defendant was found with property recently stolen from a home in another county in any way prove that he burglarized the Burke...