77 Or. App. 29 711 P.2d 194

Argued and submitted November 4,

affirmed December 18, 1985,

reconsideration denied March 28,

petition for review denied April 15, 1986 (300 Or 722)

STATE OF OREGON, Respondent, v. CLAYTON LAMONT HOWARD, Appellant.

(C81-09-34472; CA A35782)

711 P2d 194

Phillip M. Margolin, Portland, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.

Before Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.

GILLETTE, P. J.

*31GILLETTE, P. J.

This is a delayed appeal1 from convictions for robbery in the first degree and rape in the first degree. ORS 164.415; ORS 163.375. Defendant urges that his convictions should be reversed because certain evidence used against him was obtained by means of an unconstitutional search of his motel room. We hold that the error, if any, was harmless.2 We therefore again affirm the convictions.

A man found his way into the victim’s home sometime between 2:30 and 3:00 on the morning of September 15, 1981. He had an ace bandage on one arm covering something hard, like a brace. While in the victim’s home, he cut the telephone cord, threatened her with a can of mace, threatened to harm her son, took various items of jewelry and raped her. He also took an automatic teller machine credit card and forced her to give him the access code, threatening to harm her child at school if she gave him the wrong code. The man left a little before 4:00 a.m. At 4:18 a.m., someone used the card in a machine 1.2 miles from the victim’s home and took $200 from *32her account. At 4:41 a.m., an officer saw defendant walking about five or six blocks from the victim’s home. The officer stopped him and questioned him about a different rape.3 At that time, defendant had a can of mace and a watch similar to the one taken from the victim. He also wore an ace bandage covering a plaster cast on one arm and had a wad of money. The police released him after questioning; he kept the items after his release.

The victim identified defendant from a photographic display. Detective Findling then talked with the officer who had stopped defendant and learned what he had observed in defendant’s possession. Findling obtained an arrest warrant on September 16; defendant was arrested that evening. Find-ling talked with him in the early hours of September 17. At that time, defendant was wearing one of the rings and the necklace which had been taken from the victim. He also had a motel room key. He told Findling that he had forgotten to return the key when he had stayed at the motel several weeks previously.

Findling called the motel but received no answer; he then asked that a patrol officer go to the motel and determine whether defendant was currently registered there. The dispatcher misunderstood the request and told the officer to go into the room. The officer learned that the room was currently rented to defendant, obtained a key from the manager, unlocked the door and went in. He saw several items related to the crime. The officer called Findling from the room and told him where he was. After checking with a deputy district attorney, Findling told the officer to leave the room and to secure it with a lock on the door. Findling obtained a search warrant later that day, searched the room and seized a number of items from it.

On appeal, defendant asserts that the trial court erred in failing to suppress evidence of the items taken from the motel room, arguing that they were seized when the officer locked the door and that that warrantless seizure was illegal. *33 See State v. Hansen, 295 Or 78, 664 P2d 1095 (1983).4 We do not decide this issue, because any improperly admitted evidence was harmless under any standard. Three things taken from the motel room were admitted into evidence: a ring, a gold cross and a woman’s watch. The victim identified each item as hers; they were relevant to show what she had lost in the robbery and to corroborate her identification of defendant as the perpetrator. In addition to those items, the state also introduced a ring and a necklace which defendant was wearing when he was arrested. The victim testified that those things were hers and gave the background history of the ring. The officer who stopped defendant soon after the crime also testified that, at that time, he had a woman’s watch similar to the one taken from the victim, had an arm bandaged in a manner like that observed by the victim and had a can of mace.

Defendant does not challenge the victim’s account of what happened, and his attempts to undermine her in-court identification of him as the perpetrator were weak. His story of how he acquired the ring and the necklace he was wearing when arrested was hardly believable, and he admitted that he had given six false stories to Findling before coming up with the final one. The corrobrating circumstances were strong. Defendant was in the area with fruits of the robbery and an unexplained amount of money at a time which fit the time that it would have taken the perpetrator to walk to the bank machine, withdraw the money and return. Defendant had a can of mace, and the victim had been threatened with mace. His arm was bandaged, as was the attacker’s. He had some of the victim’s jewelry and a watch which looked like hers. The additional evidence of two other pieces of jewelry and the actual watch simply added a little to the balance which was already very heavily weighted against defendant’s innocence. The evidence of defendant’s guilt was substantial and convincing without it. There is little, if any, likelihood that the asserted error affected the verdict. Any error was harmless. *34 See State v. Miller, 300 Or 203, 220-21, 709 P2d 225 (1985); State v. Van Hooser, 266 Or 19, 511 P2d 359 (1971).5

Affirmed.

State v. Howard
77 Or. App. 29 711 P.2d 194

Case Details

Name
State v. Howard
Decision Date
Dec 18, 1985
Citations

77 Or. App. 29

711 P.2d 194

Jurisdiction
Oregon

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