534 P.2d 202 | Or. Ct. App. | 1975
Defendant challenges his conviction by a jury of the crime of conspiracy to commit theft. OBS 161.450. His principal contention is that the court erred in denying his motion for judgment of acquittal.
The property charged to be the subject of the conspiracy was a dog named Dobra. There was evidence
The remaining assignments relate to the admission into evidence of certain tapes upon which were recorded telephone conversations between defendant and Guthrie and between defendant and the undercover police officer, believed by defendant to be Guthrie’s accomplice. He objects to the latter because of the absence of any Miranda warnings. Defendant was not then, nor at any time prior thereto, in custody. State ex rel Juv. Dept. v. Brown, 19 Or App 427, 431, 528 P2d 569 (1974), Sup Ct review denied (1975). The tapes were clearly relevant to the establishment both of the existence of the conspiracy and the criminal intent of defendant to steal the dog.
As to the tape-recorded conversations between defendant and Guthrie, defendant objects because the court refused to have excised therefrom those “highly prejudicial” portions thereof where defendant, as a part of his solicitation to Guthrie to steal the dog for pay, also stated that in the process he wanted both of Mr. Barcroft’s legs broken. That evidence may be prejudicial obviously does not itself render it inadmissible. Here, it was clearly competent to show the' intent of defendant to solicit the theft of the dog as charged. The challenged portion was an integral part of the recorded conversation establishing the criminal conspiracy and defendant’s criminal intent. That it also showed an intent of defendant to commit a further
Affirmed.