Appeal from Circuit Court, Jackson County. Mitchell A. Karaman, Judge. No. 72-612-C.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant and Emmett Ray Muncey were jointly indicted for the crime of conspiracy to commit first degree robbery in violation of ORS 161.450,*fn1 but were tried separately. Defendant Brewer waived a jury, was tried by the court and found guilty as charged.*fn2 He appeals.
At trial defendant moved for a judgment of acquittal. The court denied this motion and, on appeal, the defendant contends that this denial was error. Defendant challenges the sufficiency of the evidence to support a verdict of guilty on the crime charged.
The defendant and Muncey were arrested on the night of April 14, 1972, in Medford for possession of a sawed-off shotgun. At the time of arrest the two men were in a car and had with them two shotguns, one of which was the sawed-off shotgun.
Earlier that same evening, before the arrest, the defendant and Muncey had met with two undercover narcotics officers. One of these officers, Officer Fox of the Oregon State Police, testified as to his conversations with the defendant and Muncey. This testimony, and other evidence introduced by the state, indicated two possible alternative plans of the alleged conspiracy. The existence of the first plan was gleaned from a statement by defendant in the presence of the undercover officers that he and Muncey had discussed robbing a grocery store earlier in the evening, had entered the store, but withdrew because of the presence of other people. The other was that the conspirators intended to commit what was termed a "kick-in" of a tavern sometime later.
Before reviewing the evidence further to test its sufficiency, we must first look to the relevant statutes to define what the state was required to prove to sustain the verdict.
The state's theory at trial was that the defendant conspired to commit robbery using a gun. Thus, as to the robbery elements of the conspiracy charge,
the state had to show that the defendant conspired to commit theft from another person while armed with "a deadly weapon." ORS ...