State v. Redeman

• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; LANGTRY
• Citation: State v. Redeman, 9 Or.App. 329, 496 P.2d 230, 94 Adv.Sh. 1417 (Or. App. 1972)
• Decision Date: 16 May 1972
• Docket Number: No. C--71--04--1233,C--71--04--1233
• Parties: STATE of Oregon, Respondent, v. Lynn Darrell REDEMAN, Appellant.

Page 230

496 P.2d 230

9 Or.App. 329

STATE of Oregon, Respondent, v. Lynn Darrell REDEMAN, Appellant.

No. C--71--04--1233.

Court of Appeals of Oregon, Department 1.

Argued and Submitted March 31, 1972.

Decided April 27, 1972.

Rehearing Denied May 16, 1972.

Howard R. Lonergan, Portland, argued the cause and filed the brief for appellant.

Thomas H. Denney, 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 THORNTON, JJ.

LANGTRY, Judge.

Defendant appeals from a conviction for receiving and concealing stolen property. Former ORS 165.045. His assignments of error are: (1) evidence seized pursuant to a valid search warrant should have been suppressed; (2) there was insufficient evidence that defendant knew or had good reason to believe that property was stolen; and (3)(a) ORS 165.045 is unconstitutional to the extent which it allows conviction based on a person's 'having good reason to believe' property he received or concealed is stolen; (b) a jury instruction based upon the statute was erroneous.

On or about March 4, 1971, Cleveland High School in Portland was burglarized and 23 pieces of electrical equipment were taken. Based on information received from an informant, police obtained a warrant on April 13 authorizing search of defendant's premises for two of these items--an Eico Oscilloscope and an RCA Signal Generator. The next day the police executed the warrant. During the search defendant fled. The police found the oscilloscope, described in the warrant, plus two signal generators and a battery charger not identified in the warrant but which corresponded in serial number and description to equipment taken in the high school burglary. They seized this equipment and, also, a baggie of marihuana, furniture, stereo equipment, cameras, two filing cabinets and a stamp collection. They believed some or all of this property was the fruit of other burglaries. In all, the entire contents of defendant's apartment except for a 2,000-pound waterbed were seized.

The trial court suppressed all evidence unrelated to the high school burglary and struck from the indictment the second count which charged defendant with receiving and concealing some of that property. The remaining count, upon which defendant was convicted, related to the Eico Oscilloscope. The state introduced into evidence at the trial the other electrical equipment taken from the high school which was found in defendant's apartment.

(1). Defendant contends that the seizure of the items suppressed by the trial court was so unreasonable as to require suppression of the oscilloscope, seized pursuant to the search warrant, and the other electrical equipment found in 'plain view.' State v. Ronniger, Or.App., 93 Adv.Sh. 1576, 492 P.2d 298 (1971); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Anglin v. Director, Patuxent Institution, 439 F.2d 1342 (4th Cir.), cert. denied 404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262 (1971). From the record developed at the suppression hearing it appears the police had probable cause to believe some of the other items seized were fruits of another burglary. For other items the state concedes no probable cause existed for seizure. ¹ If some items were improperly seized the fact remains that they were suppressed by the trial court; an illegal seizure of evidence not used against a defendant at trial is not grounds for invalidating the entire search. State v. Ronniger, supra.

The authorities defendant urges are not in point. They deal with suppression of evidence seized in an unreasonable search incident to arrest, ² or evidence seized in a search which exceeded the bounds of the warrant. ³

(2). At conclusion of the state's case-in-chief defendant moved for acquittal, and after state's rebuttal he moved for a directed verdict. In the motion for directed verdict defendant referred to the motion to acquit in which he said the state had 'failed to show that the defendant knew the material was stolen and that the heading of the statute on good cause neither has been established nor would it be constitutional * * * to create a felony on the grounds of stupidity * * *.' We understand the initial objection to be a challenge of the sufficiency of the evidence that defendant knew or had good reason to believe the goods were stolen, as provided by former ORS 165.045. If the record as a whole contains sufficient evidence to support a verdict against defendant, the verdict will be affirmed. State v. Nix, Or.App., 93 Adv.Sh. 1433, 491 P.2d 635 (1971). We view that evidence in the light most favorable to the state.

The state's evidence established that the oscilloscope and other electrical equipment found in defendant's apartment had been stolen from an electronics instruction classroom at Cleveland High School. The electronics instructor had marked the oscilloscope with a number 'six' on each side of its screen. Defendant was a student in that class in 1970, from which the jury might infer he could recognize the oscilloscope as belonging to the school.

When the police arrived with the search warrant defendant was present. One officer read the warrant to defendant and advised him of his rights; another proceeded to the bedroom and, upon finding the equipment on a shelf, called: 'I found them--I found it.' At that point, the officer testified:

'* * * Lynn Redeman looked at me and said, I know who the son of a bitch was that finked on me and I'll get him * * *.'

Defendant then ran out the door without shoes or a shirt. He was apprehended two months later in Colorado and was returned to Oregon.

At trial defendant claimed he had bought the equipment from a man, but he could not remember the man's last name or whether he had exchanged four or five waterbeds for the equipment. An alleged receipt to the transaction could not be produced. Defendant contended the police took it when they searched the apartment.

Whether the jury believed defendant or not, the evidence of his former classroom exposure to the equipment, his statement when the equipment was found, and his subsequent flight, ⁴ were more than sufficient for the jury to infer defendant knew or believed the equipment was stolen.

Under this assignment of error defendant also argues there was insufficient evidence that he concealed the stolen property. Regardless of its merits, this was not raised in the trial court and we will not consider it now.

(3) (a). Defendant also grounded his motion for judgment of acquittal on the contention that ORS 165.045 is unconstitutional insofar as it defines the requisite mental element for conviction as 'knowing Or having good reason to believe' the property is stolen. (Emphasis supplied.) From defendant's brief argument in support of this contention we understand his objection to be that the statutory standard violates due process because, 'having good reason to believe' allowed the jury to convict him on the basis of what a reasonable person would believe under the circumstances of the case, rather than what defendant actually believed, and thus it permits conviction for lack of diligence or intelligence.

In order to consider defendant's constitutional challenge to ORS 165.045, we would first need to construe it as not requiring a finding of defendant's actual knowledge or belief for conviction. For reasons which follow we do not so construe it, although in some jurisdictions such a construction has been applied to similar language. See cases collected in Annotation, 147 A.L.R. 1058, 1061 (1943), and supplemental cases; 2 Wharton, Criminal Law and Procedure 280, 285, § 568 (Anderson 1957).

The reasoning of State v. Aschenbrenner, 171 Or. 664, 138 P.2d 911, 147 A.L.R. 1052 (1943), is instructive for purposes of our analysis. Aschenbrenner dealt with a statute making it a larceny to fail to report the taking of estrays. The statute contained to 'knowledge' requirement. The court did not hold that statute unconstitutional, but read into it the requirement of 'knowledge.' It held that the circuit court erred in instructing the jury that the standard to apply in judging the defendant was whether 'a man of ordinary intelligence and observation' would believe that the animals in question were estrays, and that actual knolwedge was the correct standard. In reaching this conclusion the court relied on analogous holdings in cases dealing with the crime of receiving stolen property. The weight of authority in those cases, the court pointed out, rejected the 'reasonable person' standard because it could result in conviction on stupidity rather than guilt. The court's quotation of this passage from State v. Alpert, 88 Vt. 191, 92 A. 32 (1914), amplifies its reasoning:

". . . Yet the effect of such an instruction ('reasonable person') is to make guilty knowledge of a respondent depend upon what the jury find would induce 'belief' in the mind of a 'reasonable man,' rather than upon what they find induced 'belief' in his own mind. One essential element of the offense is that the person, at the time he received the stolen goods, had knowledge that they had been stolen. If he did not have actual or positive knowledge, the question is whether from the circumstances he--not some other person--believed they had been stolen. The circumstances must have that effect upon his mind, to constitute knowledge by him. The question must be determined upon the individual test of the accused * * *." 171 Or. at 671, 138 P.2d at 914. (Emphasis supplied.)

The court in Aschenbrenner went on to say that State v. Savan, 148 Or. 423, 36 P.2d 594, 96 A.L.R. 497 (1934), which dealt with the statute before us today (then § 23--530 OCLA), did not conflict with its holding that actual knowledge was required. 171 Or. at 675, 138 P.2d 911.

We hold that ORS 165.045 requires actual knowledge or belief ⁵ by defendant...