State v. Nix, 7089

• Decision Date: 09 December 1971
• Docket Number: No. 7089,7089
• Citation: 7 Or.App. 383,491 P.2d 635,93 Adv.Sh. 1433
• Parties: STATE of Oregon, Respondent, v. Gary Dwayne NIX, Appellant.
• Court: Oregon Court of Appeals

Page 635

491 P.2d 635

7 Or.App. 383

STATE of Oregon, Respondent, v. Gary Dwayne NIX, Appellant.

No. 7089.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Oct. 28, 1971.

Decided Dec. 9, 1971.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Robert E. Brasch, Dist. Atty., Coquille, argued the cause and filed the brief for respondent.

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

THORNTON, Judge.

Co-defendants Nix and Brown were convicted of receiving and concealing stolen copper telephone wire in violation of ORS 165.045. ¹ Nix appeals, contending that the evidence was insufficient to establish that he knew or had good reason to believe that the telephone wire had been stolen and, therefore, the trial court erred in denying his motion for a judgment of acquittal.

The trial judge denied a motion for a judgment of acquittal at the close of the state's case. Defendant elected not to stand on his motion and presented evidence in his defense. In such a case the denial of the motion may still be assigned as error but we must consider all of the evidence and affirm the trial court if the record as a whole contains sufficient evidence to support a verdict against the defendant. State v. Lamphere, 233 Or. 330, 378 P.2d 706 (1963); State v. Gardner, 231 Or. 193, 372 P.2d 783 (1962).

The evidence was that a supervisor for a local paperboard mill observed a fire burning with black dirty smoke on an isolated portion of the company's property. Upon investigation the defendants were found burning insulation from copper wire. The supervisor called a company fire truck, which put out the fire. Another employe called the sheriff's department. An officer was dispatched and the defendants were taken into custody.

The officer testified that defendant Brown had told him he had purchased the wire from a man in Coos Bay for 12 cents a pound. He described the man as being approximately six feet tall, medium build, with brown hair.

A storeroom employe of the local telephone company testified that he could positively identify a portion of the wire as the property of the company because of a tag attached to it. The wire had been stored as scrap on telephone company premises on July 27, 1970. The telephone company periodically sells its scrap by bid to buyers. However, no such sales had been made between July 27 and September 25, the date when defendants were found in possession of the wire.

A construction foreman for the telephone company estimated that the wire found in the defendants' possession weighed 400 pounds. He testified that theirs was the only firm in the area that used this particular type of wire and that it was not available locally.

Defendant did not take the stand. However, co- defendant Brown testified for the defense that he and Nix were approached by a man in a local supermarket and asked if they wanted to purchase some insulated copper wire; that after expressing their interest in purchasing the wire, they agreed to look at the wire; that the three of them then drove to the alley behind a drive-in snack shop, where the seller had the wire in the back of a pickup truck; that Brown offered to pay 12 cents a pound for the wire and estimated that there were 200 pounds of wire; that the seller accepted and Brown paid him $24; that Brown and Nix agreed to split the proceeds from the wire after the cost was deducted; that defendants did not ask the seller where he got the wire, nor did they ask for a receipt; that Brown had...