555 P.2d 792 | Or. Ct. App. | 1976
On December 17, 1975 the Multnomah County Grand Jury returned an indictment charging defendant with "conspiring” to commit theft in the first degree
The indictment returned in this case specifically alleged that "with the intent that conduct * * * punishable as a felony be performed” defendant had, between September 8, 1975 and December 11, 1975, entered into an agreement with his coconspirators to carry out a scheme designed to result in the theft of "lawful currency of a total amount exceeding two hundred dollars.” At trial the state produced a substantial amount of evidence tending to prove that during the three month period cited in the indictment defendant, a parking meter repairman employed by the City of Portland for nearly twenty years, and other city employees had unlawfully removed coins from parking meters and passed those coins to other individuals who exchanged them for currency in various banks throughout the metropolitan area. Taken alone, that evidence would have been sufficient to support a conviction, as the existence of the "agreement” and requisite "intent” essential to a "conspiracy” may be established by circumstantial evidence, i.e., may be
Defendant argues that reversal is nonetheless necessary here because the jury was, over his objection, also permitted to take into consideration "irrelevant” evidence of "alleged crimes occurring outside the period set forth in the indictment,” the admission of which served to deprive him of his "constitutional right to due process.” In support of this argument defendant refers us to the well established rule prohibiting the introduction of evidence of criminal activity independent of and unrelated to that charged where its only relevancy is that it tends to show the defendant to be an individual prone to criminal conduct.
One of the alleged coconspirators appearing on behalf of the state did in fact testify that the defendant had initially approached her about "making some extra money” in December of 1974; she also acknowledged that as a consequence of the December conversation, she began "exchanging coins” delivered to her by defendant sometime in January or February of 1975, and that she thereafter worked the "coin exchange” for defendant on a regular basis up to the date of her arrest on December 11, 1975.
Defendant’s analysis is, however, flawed; under the facts of this case, the "rule” he relies upon is inapplicable for the reason that the testimony to which he objected actually constituted evidence of the very crime charged in the indictment rather than any additional and unrelated offense. It is the agreement to commit an unlawful act or acts which itself constitutes the action element of the crime of conspiracy; whether the object of a single agreement is the commission of one or many criminal acts, it is the agreement which constitutes the offense in either case. In effect, therefore, a "conspiracy” is a "continuing offense”; once two or more parties have entered into the proscribed agreement, the "crime” continues until it is abandoned or its object fulfilled. Thus, even when a "conspiracy” — i.e., the agreement itself— contemplates several crimes and extends over a prolonged period of time, it cannot be broken down into component subagreements or divided into separate units based upon distinct time intervals for the purpose of multiple prosecutions or punishments.
As noted above the testimony objected to in this case tended to prove that defendant and the witness entered into an agreement to commit theft in December of 1974 and as a consequence of that agreement, embarked upon an uninterrupted course of illegal conduct which extended up to the date of their arrest in December of 1975. That testimony was, therefore, circumstantial evidence of the same crime charged in the indictment; it was probative of but one "agreement” and, therefore, but one violation of ORS 161.450.
Affirmed.
ORS 161.450(1) provides:
"A person is guilty of criminal conspiracy if with the intent that conduct constituting a crime punishable as a felony or a Class A misdemeanor be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.”
State v. Gagnon, 2 Or App 261, 465 P2d 737, Sup Ct review denied (1970); State v. Brewer, 12 Or App 105, 504 P2d 1067, affirmed, 267 Or 346, 517 P2d 264 (1973); State v. Reed, 15 Or App 593, 517 P2d 318 (1973).
State v. Ellis, 243 Or 190, 412 P2d 518 (1966); State v. Long, 195 Or 81, 244 P2d 1033 (1952); State v. Bailey, 179 Or 163, 170 P2d 355 (1946).
More specifically, the witness testified that she had made exchanges on between "20 and 50” different occasions between January and December of 1975, including three different exchanges between December 1, 1975 and December 11, 1975. The witness also indicated that the currency ultimately obtained was generally divided in a "six-way split”, her share being one-sixth of the total exchanged in any single transaction.
Braverman v. United States, 317 US 49, 63 S Ct 99, 87 L Ed 23 (1942); United States v. Campanale, 518 F2d 352 (9th Cir 1975); United States v. Adcock, 487 F2d 637 (6th Cir 1973); United States v. Noah, 475 F2d 688 (9th Cir 1973).
Even assuming, for purposes of argument, that the testimony