Appeal from Circuit Court, Multnomah County. Berkeley Lent, Judge. No. C-54712.
George A. Haslett, Jr., Portland, argued the cause and filed the brief for appellant.
John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
Carlos 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 of error. The same homicide was involved in State v. Capitan, 8 Or App 582, 494 P2d 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 P2d 171 (1966); State v. Shipman, 2 Or App 359, 468 P2d 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 P2d 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 P2d 780 (1972), this court referred to the language of State v. Dennis, 177 Or 73, 77, 159 P2d 838, 161 P2d 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 P2d 838, 161 P2d 670 (1945). (Emphasis supplied.)" 8 Or App 616-17.
In State v. Zauner, 250 Or 105, 110, 441 P2d 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 ...