State v. Gholston

• Decision Date: 02 February 1982
• Docket Number: No. C,C
• Citation: 639 P.2d 1302,55 Or.App. 790
• Parties: STATE of Oregon, Respondent, v. Robert Dwayne GHOLSTON, Appellant. 80-09-33303; CA A20094.
• Court: Oregon Court of Appeals

Page 1302

639 P.2d 1302

55 Or.App. 790

STATE of Oregon, Respondent, v. Robert Dwayne GHOLSTON, Appellant.

No. C 80-09-33303; CA A20094.

Court of Appeals of Oregon.

Argued and Submitted Aug. 31, 1981.

Decided Feb. 2, 1982.

Marianne Bottini, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

YOUNG, Judge.

Defendant was convicted in a jury trial of two counts of theft in the second degree, ORS 164.045, and one count of theft by extortion. ORS 164.075. Defendant appeals all three convictions, contending the court erred in denying his motion to suppress, in not allowing oral argument on the motion, in not stating the grounds for its ruling on the motion and in denying defendant's motion for a judgment of acquittal.

The victim first met defendant at a bar where she offered him a ride home. When leaving the victim's car, defendant grabbed her purse and ran. After arriving at her apartment some time later, she reported the theft to the police. Later, defendant called her at home to explain the reason for taking the purse. A police officer arrived at the victim's home to investigate the theft while defendant was on the telephone with the victim. On direction from the police, the victim arranged for a "drop" where she would exchange $50 for her wallet. ¹ The victim gave police the following description of defendant: black male, about 25 years old, 180 pounds, bearded, possibly speaking with a southern accent, wearing a tan suit and calling himself Robert. After the money was left at the designated location, defendant was arrested one-half block from the phone booth. A search of his person revealed a pencil, a receipt with the victim's name on it and a piece of paper with the telephone number of the telephone booth on it.

Defendant contends that the state did not meet its burden of proving the validity of the warrantless search and arrest. He argues that there was no probable cause to arrest and that the search incident to that arrest was therefore unlawful. We disagree.

Probable cause is defined in ORS 131.005(11) as

"a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it."

Defendant was near the drop site at the designated time and matched the description given by the victim. ² These facts clearly gave police probable cause to believe that defendant had committed a crime. State v. Crockett, 34 Or.App. 1019, 1023, 580 P.2d 214 (1978). Under these circumstances, it cannot be said that the police acted on a "mere possibility" or used "guess work." There is ample authority holding similar physical descriptions, employed in like time sequences, to be a basis for probable cause to arrest. State v. Armstrong, 52 Or.App. 161, 168, 628 P.2d 1206, rev. den. 291 Or. 662 (1981); State v. Zimmerlee, 45 Or.App. 107, 111, 607 P.2d 782, rev. den. 289 Or. 71 (1980). We find that the search was incident to a lawful arrest based on probable cause.

Defendant next assigns as error the trial court's refusal to hear oral argument at the hearing on the motion to suppress and the court's failure to state the grounds for denying the motion. The motion was in writing with points and authorities but without a supporting affidavit. The grounds urged for suppression were sufficiently stated.

Appellant bases his argument on an interpretation of "shall be heard" as found in ORS 133.673(1), which concerns motions to suppress, and on Art I, § 11 of the Oregon Constitution. A defendant's right to be fully heard and to be assisted by counsel in his defense is fundamental. We do not agree, however, that defendant's right to be heard mandates oral argument on a pre-trial motion to suppress.

Defendant relies upon Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1965), and State v. Rogoway, 45 Or. 601, 78 P. 987 (1904). Those cases require a trial court to permit closing arguments. Both emphasize the decisive role of closing argument. It is the last opportunity for a concise and persuasive summation that "could spell the difference, for the defendant, between liberty and unjust imprisonment." Herring v. New York, 422 U.S. at 863, 95 S.Ct. at 2556. A closing argument is therefore qualitatively different than oral argument on a pre-trial motion. Herring is specifically limited to final argument:

"Nothing said in this opinion is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process." 422 U.S. at 863 n.13, 95 S.Ct. at 2556 n.13.

Accordingly, we find that the trial court was within its discretion in limiting defendant to his written motion without oral argument.

Defendant argues that the trial court erred in not stating the grounds for denying the motion to suppress. State v. Johnson/Imel, 16 Or.App. 560, 519 P.2d 1053, rev. den. (1974), states that, while making findings is the better practice, the trial judge is required to make findings only if the motion is based on several grounds. The motion here had one basis: the search was not pursuant to a lawful arrest based on probable cause. In denying the motion, the judge necessarily found the arrest lawful. State v. Hacker, 51 Or.App. 743, 627 P.2d 11 (1981).

Defendant's final contention is that the trial court erred in denying his motion for acquittal. There is no motion appearing in the record. The order recites, however, that a motion was made and denied at the close of the state's case. When there is a conflict between the record and the order, the order controls. State v. Swain/Goldsmith, 267 Or. 527, 517 P.2d 684 (1974); State v. Hallin, 43 Or.App. 401, 602 P.2d 1134 (1979). The motion could have been addressed to one, two, or all three counts in the indictment. On appeal, he contends that the motion was directed to the second count charging theft by extortion. We address the merits of defendant's argument.

The test for determining the sufficiency of the evidence in a criminal case is "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Harris, 288 Or. 703, 721, 609 P.2d 798 (1980), (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). State v. Rice, 48 Or.App. 115, 117, 610 P.2d 538 (1980). The state contends that there is sufficient evidence to sustain a conviction of theft by extortion. We do not agree.

The Commentary by the Criminal Law Revision Commission relating to ORS 164.075 ³ states: "The issues are whether the threat is intended to intimidate and whether it is effective for that purpose." ⁴ It further states that the actor would commit theft by extortion if "he actually obtained property from another as a result of the threat." (Emphasis added.) We find no such causation in the evidence presented.

Defendant was indicted for intentionally inducing or compelling the victim to deliver currency by threatening to forge checks on the victim's bank account. The victim was talking by telephone with defendant when police arrived at her apartment. She testified that defendant had called to explain that he had stolen the purse because she had embarrassed him. ⁵ She further testified that defendant agreed to mail her identification to her. At the officers' direction, the victim then offered defendant $25 in exchange for her wallet. Defendant expressed suspicion, and the victim increased her offer to $50. The victim...