Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Richard D. Barber, Salem, argued the cause and submitted a brief for appellant. Hattie Bratzel Kremen, District Attorney, Salem, argued the cause for respondent. With her on the brief was C.L. Marsters, Deputy District Attorney, Salem.

Judges

McALLISTER, C.J.

See more information ...

Smart Summary

State of Oregon v. Fleming — Summary of Opinion (McAllister, C.J.)

Factual and Procedural Background

The defendant, Franklin Delano Fleming, and co-defendant Roy Allen Freeman were jointly indicted in Marion County for assault and robbery while armed with a dangerous weapon, ORS 163.280. Both were found guilty by a jury. Fleming was sentenced to the penitentiary for a term not exceeding 15 years and appealed. Freeman received a life sentence (not at issue here).

It was admitted that on the evening of March 26, 1961, Freeman, while armed with a sawed-off shotgun, robbed the proprietor of McFarland's Market in the Keizer district. Freeman went to and departed from the market in a car driven by Fleming, which was parked nearby while Freeman committed the robbery. Fleming appealed on the sole question whether the evidence of his participation (specifically, whether he knew of Freeman's intention to commit the robbery) was sufficient to support his conviction.

Relevant facts established by the record: Fleming and Freeman first met on March 24; they again met on the morning of March 26 and traveled that day to Portland with two women. After returning to Salem that evening, the men exchanged cars, and Fleming drove Freeman's car north to the Keizer area. Freeman had taken from his trunk and placed in Fleming's car a bundle containing a black leather jacket, shirt, black pants and a sawed-off shotgun. Fleming testified he did not see the shotgun until after the robbery. Freeman entered the market wearing a mask and jacket and committed the robbery; Fleming waited in the car with the motor running. After the robbery they hid the shotgun and clothing in an orchard, spent some of the robbery proceeds in Portland bars, later retrieved the hidden items, and then parted ways.

Legal Issues Presented

Whether the evidence as to Fleming's participation in the crime was sufficient to support the jury's verdict of guilty — specifically, whether Fleming knew that Freeman intended to commit the robbery.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Duggan, 215 Or. 151, 333 P.2d 907 (1958)	That circumstantial evidence alone is sufficient to support a guilty verdict.	Listed among authorities supporting the proposition that circumstantial evidence by itself can sustain Fleming's conviction.
State v. Kader, 201 Or. 300, 270 P.2d 160 (1954)	That circumstantial evidence alone is sufficient to support a guilty verdict.	Used by the court as authority for accepting circumstantial evidence as adequate to support the jury's verdict.
State v. Dennis, 177 Or. 73, 159 P.2d 838, 161 P.2d 670 (1945)	That circumstantial evidence alone is sufficient to support a guilty verdict.	Included with other Oregon cases to show circumstantial evidence can sustain conviction.
State v. Tarter, 26 Or. 38, 37 P. 53 (1894)	The testimony of the defendant is to be considered by the jury in the same manner as the testimony of other witnesses.	The court applied this principle to confirm the jury was entitled to consider Fleming's testimony like any other witness's testimony.
State v. Hibberd, 123 Or. 490, 262 P. 950 (1928)	The credibility of the witnesses is for the jury alone.	Applied to underscore that assessment of credibility (including Fleming's) was for the jury, not the court.
State v. Ausplund, 86 Or. 121, 167 P. 1019 (1917)	The jury is not required to believe the defendant's story and may convict on circumstantial evidence.	Invoked to support the proposition that the jury could reject Fleming's account as improbable and convict on circumstantial proofs.
Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951)	Authority for permitting conviction despite defendant's testimony when circumstantial evidence supports guilt.	Cited as analogous authority from another jurisdiction supporting the jury's right to reject defendant's testimony and rely on circumstantial evidence.
State v. Shonka, 3 Utah 2d 124, 279 P.2d 711 (1955)	Authority for permitting conviction despite defendant's testimony when circumstantial evidence supports guilt.	Used as additional precedent to show other courts have allowed conviction on circumstantial evidence despite defendant's contradictory testimony.
Randolph v. Commonwealth, 190 Va. 256, 56 S.E.2d 226 (1949)	Authority for permitting conviction despite defendant's testimony when circumstantial evidence supports guilt.	Cited to demonstrate consistent authority that a jury may reject a defendant's improbable testimony and convict on circumstantial proof.

Court's Reasoning and Analysis

The court framed the sole issue as whether the evidence was sufficient to prove Fleming knew of Freeman's intended robbery. The opinion recounts the relevant admitted facts (Freeman's armed robbery, Fleming driving Freeman to and from the scene, exchange of cars, Freeman's bringing of a bundled outfit and shotgun into Fleming's car, Freeman's dressing in the garments, concealment of the shotgun and clothing after the robbery, and spending of stolen money in bars) and Fleming's testimony that he did not know of the intended robbery and did not see the shotgun until after the robbery.

Based on these facts, the court concluded there was ample circumstantial evidence from which the jury could properly find Fleming guilty. The court relied on established principles: circumstantial evidence alone can support a conviction; the defendant's testimony must be weighed by the jury like any other witness testimony; and credibility determinations rest solely with the jury. Applying these principles, the court held that the jury was not required to accept Fleming's claim of ignorance and was entitled to find his testimony improbable and convict on the circumstantial evidence presented.

Holding and Implications

AFFIRMED.

Holding: The Oregon Supreme Court affirmed the conviction and sentence of Fleming, concluding the evidence was sufficient for the jury to find he participated in the crime (in that the jury could infer he knew of Freeman's intention to rob).

Implications: The direct effect is that Fleming's conviction and 15-year penitentiary sentence were upheld. The opinion reaffirms that circumstantial evidence alone may sustain a conviction, that a defendant's testimony is to be treated like other testimony, and that credibility is for the jury; the opinion does not announce a new rule beyond those applied here.

Show full summary ...

STATE OF OREGON v. FLEMING

McALLISTER, C.J.

The defendant, Franklin Delano Fleming, and his co-defendant, Roy Allen Freeman, were indicted jointly in Marion county for the crime of assault and robbery while armed with a dangerous weapon. ORS 163.280. Both defendants were found guilty by the jury and Fleming was sentenced to the penitentiary for a term not exceeding 15 years, from which he appeals. Freeman was given a life sentence, with which we are not here concerned.

The sole question presented on appeal is whether the evidence as to Fleming's participation in the crime was sufficient to support the verdict of guilty against him.

It is admitted that on Sunday evening, March 26, 1961, Freeman while armed with a sawed-off shotgun robbed the proprietor of McFarland's Market in the Keizer district north of Salem, and that he went to and departed from the scene of the crime in a car driven by Fleming which was parked nearby while Freeman went into the market and committed the robbery. The narrow question presented is whether Fleming knew that Freeman intended to commit the robbery.

It appears from the evidence that Fleming first met Freeman in the restaurant in the bus depot at Salem, on Friday, March 24, 1961, where they were introduced by a waitress, Kay Thompson. The two men again met on Sunday morning, March 26, 1961, at Miss Thompson's apartment. About noon the two men left for Portland in Freeman's car, accompanied by Miss Thompson and another waitress named Lou Ann Amburgey. After spending the afternoon in Portland, the quartet returned to Salem at about 7:00 o'clock in the evening.

The men let the girls out of the car at the bus depot and then drove to Miss Thompson's apartment, where they exchanged cars. They left Freeman's car, took Fleming's car and with Fleming at the wheel drove north to the Keizer district where the McFarland Market is located. After driving around in that area for a short while Fleming stopped the car near the market and waited with the motor running while Freeman went into the market and robbed McFarland.

When the men exchanged cars after returning from Portland Freeman had taken from the trunk of his car and brought with him in Fleming's car a black leather jacket, a shirt, a pair of black pants and a sawed-off shotgun. According to Fleming these articles were rolled into a bundle and he did not see the shotgun until Freeman returned to the car after the robbery. It is admitted that as Fleming drove toward the market Freeman put on the shirt and the black pants. It is also admitted that during the robbery Freeman wore the leather jacket and had a lady's silk stocking over his head, but the evidence does not disclose exactly when he put on the jacket and mask. Fleming testified that he had no knowledge of Freeman's intention to rob the market and knew nothing about the robbery until Freeman returned to the car carrying the shotgun and told him about the robbery.

After the robbery Fleming drove back to Salem by a circuitous route. On the way they stopped and Freeman hid the shotgun and clothing in an orchard. In Salem the men again changed cars and in Freeman's car picked up the girls at the bus depot and returned to Portland. There they visited several bars where they spent some of the money taken in the robbery for drinks, and returned to Salem about 1:00 o'clock a.m. They left the girls at the apartment house and drove to the spot where Freeman had hidden the shotgun and clothing and picked up those items. Afterwards they returned to Salem and parted, each man taking his own car.

We have carefully reviewed the record and are satisfied that there was ample circumstantial evidence from which the jury could properly find a verdict of guilty against Fleming. Circumstantial evidence alone is sufficient to support the verdict. State v. Duggan, 215 Or. 151, 333 P.2d 907 (1958); State v. Kader, 201 Or. 300, 270 P.2d 160 (1954); State v. Dennis, 177 Or. 73, 159 P.2d 838, 161 P.2d 670 (1945). The testimony of the defendant is to be considered by the jury in the same manner as the testimony of other witnesses. State v. Tarter, 26 Or. 38, 37 P. 53 (1894). The credibility of the witnesses is for the jury alone. State v. Hibberd, 123 Or. 490, 262 P. 950 (1928).

The jury was not required to believe Fleming's story that he was completely unaware of Freeman's intention to perpetrate the robbery until after the crime had been committed. The jury had the right to reject defendant's testimony as improbable and to convict on the circumstantial evidence. State v. Ausplund, 86 Or. 121, 128, 167 P. 1019 (1917); Kitts v. State, 153 Neb. 784, 788, 46 N.W.2d 158 (1951); State v. Shonka, 3 Utah 2d 124, 279 P.2d 711, 714 (1955); Randolph v. Commonwealth, 190 Va. 256, 56 S.E.2d 226, 229 (1949).

The judgment of the lower court is affirmed.

STATE v. FLEMING