STATE of Oregon, Respondent,
v.
Michael John WRIGHT, Appellant.
Court of Appeals of Oregon.
Argued and Submitted November 27, 1972. Decided January 5, 1973.George A. Haslett, Jr., Portland, argued the cause and filed the brief for appellant.
John W. Osburn, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.
LANGTRY, Judge.
Carols Mendoza was found dead, shot six times in the head, in a stolen car parked in a deserted area of Portland April 25, 1968. Defendant has been convicted by a jury of first-degree murder, former ORS 163.010, for committing the crime. In appealing he lists five assignments *1066 of error. The same homicide was involved in State v. Capitan, 8 Or. App. 582, 494 P.2d 443, Sup.Ct. review denied (1972).
(1). Sufficiency of the Circumstantial Evidence.
We review the evidence in the light most favorable to the state. State v. Long, 243 Or. 561, 415 P.2d 171 (1966); State v. Shipman, 2 Or. App. 359, 468 P.2d 921 (1970). Since the defendant produced evidence after making his first motion for acquittal, we consider all the evidence presented to the jury and not just that presented initially by the state. State v. Gardner, 231 Or. 193, 195, 372 P.2d 783 (1962).
What is the proper test to be applied in reviewing a case where the state relies on circumstantial evidence? In State v. Mitchell, 8 Or. App. 613, 495 P.2d 780 (1972), this court referred to the language of State v. Dennis, 177 Or. 73, 77, 159 P.2d 838, 161 P.2d 670 (1945), to the effect that where the state relies on circumstantial evidence to prove an essential element of the offense, the evidence
"`* * * must not merely coincide with, render probable, and be consistent with, the guilt of the accused, but it must be inconsistent with any reasonable theory of his innocence and incapable of explanation upon any other rational hypothesis than that of guilt * * *.' State v. Dennis, 177 Or. 73, 77, 159 P.2d 838, 840, 161 P.2d 670 (1945). (Emphasis supplied.)" 495 P.2d at 782.
In State v. Zauner, 250 Or. 105, 110, 441 P.2d 85 (1968), the court in discussing the holding of State v. Dennis, supra, said:
"In the application of such rule the jury, of course, is the final arbiter of all conflicts in the evidence. The jury is also entitled to draw all reasonable inferences that are capable of being made from the circumstantial evidence. The trial court, and this court, have the difficult task of determining whether the inferences that can be drawn are sufficiently reasonable so as to amount to evidence proving each material element of the crime beyond a reasonable doubt."
The difference between the two standards seems to center around the requirement that the circumstantial evidence "must be inconsistent with any reasonable theory * * * of innocence." However, this language is just another way of elaborating what is meant by "reasonable doubt." This court in State v. Jefferson, Or. App., 94 Adv.Sh. 1209, 1214, 496 P.2d 35 (1972), said:
"In our review we do not weigh the evidence nor make judgments on credibility, nor are we concerned with conflicts in testimony. Our purpose is to determine whether the inferences which may be drawn from the evidence are sufficiently reasonable to support a jury verdict. The test set forth in State v. Zauner, supra, is this: Where the evidence is entirely circumstantial, would a reasonable person, based upon all the evidence adduced in the case, be warranted in finding beyond a reasonable doubt that the defendant committed the offense charged."
There is nothing really inconsistent between these two enunciated standards. Jefferson states our standard of review.
The defendant on appeal urges that the evidence was not of the quality required to support the jury's verdict. We do not here attempt to weigh the quality of the evidence. We merely look to see if there is enough evidence that the jury could as reasonable persons have believed beyond a reasonable doubt that the defendant was guilty.
There was evidence before the jury that supports the conviction of the defendant. There was testimony, by way of an admission against interest, that on the night of the murder the defendant said he had shot Mendoza five to eight times. This is enough to support a conviction.
(2). Admission of Victim's Hearsay Statements.
The defendant's second assignment of error is that the trial court erred in allowing, *1067 over objection on grounds of hearsay and relevancy, Mrs. Mendoza to testify to what her husband had said to her when he returned from talking on the telephone shortly before he left his home on the night he was murdered. The court ruled that it was admissible to show the state of mind of the deceased. This was correct under the holding of State v. Farnam, 82 Or. 211, 252, 161 P. 417, Ann.Cas. 18A, 318 (1916), as followed in State v. Shirley, 7 Or. App. 166, 488 P.2d 1401 (1971), Sup.Ct. review denied (1972). We agree that the testimony is of questionable relevance. But we do not find that the testimony was prejudicial. It concerned what Mr. Capitan, the caller, had said. There was no attempt by the state at proof of a conspiracy between Capitan and defendant in this case. However, we nevertheless think that the testimony was of sufficient relevance so that its admission by the trial court was not an abuse of discretion.
(3) Prosecutor's Comments on Failure of Defendant to Call a Witness.
There were two instances when the prosecutor commented upon the defendant's failure to call Capitan as a witness to support his alibi defense. Defendant had testified that he was with Capitan at the time of the homicide. This assignment is controlled by the holding in State v. Goodin, 8 Or. App. 15, 492 P.2d 287 (1971), Sup.Ct. review denied (1972). The prosecutor may comment on the defendant's failure to call a witness other than the defendant. State v. Goodin, supra; State v. Lincoln, 250 Or. 426, 443 P.2d 178 (1968).
(4). Flight and Concealment.
The court instructed the jury concerning the effect to be given evidence about flight and concealment. The fact that the defendant sought to explain his apparent flight, some six months after the homicide, by showing a legitimate motive for his actions does not prevent the jury from being instructed on the weight to be given evidence of his flight if they found in fact that he had been fleeing. Unlike the situation in State v. Bonner, 241 Or. 404, 406 P.2d 160 (1965), relied upon by defendant, there was evidence upon which the jury could base a belief that defendant thought "that the heat was on" when he left.
(5). Alleged Jury Misconduct.
The trial court refused to grant the defendant's motion for a new trial based on allegations of jury misconduct. A reading of the transcript of the hearing conducted by the trial judge on this motion reveals that there was no coercion of, or misconduct by, the members of the jury.
We find no error and the defendant's conviction is affirmed.