State v. Cox , 37 Or. App. 139 ( 1978 )

JOHNSON, J.

Defendant was convicted after jury trial of robbery in the second degree. ORS 164.405.¹ He appeals assigning as error the admission of evidence concerning a sawed-off shotgun found in the getaway vehicle.²

Defendant and another held up the pharmacy clerk at a shopping center, one robber simulating a concealed handgun and his companion backing him up verbally. After the two men fled the clerk alerted the pharmacist, who observed the two men leaving the store at a jogging pace. The pharmacist pursued the suspects outside the building, caught up with them, and tackled one of them. The tackled suspect, the defendant, walked away into the parking lot, after the pharmacist and an off-duty policeman elected to pursue the other suspect who took off in a car. The pharmacist and the off-duty police officer pursued the car in the policeman’s private automobile. Marked patrol cars joined in the chase. The fleeing car was then involved in an accident, and the driver of the car, identified as Dennis Hinkle, was arrested. A quantity of cash and a sawed-off shotgun were found inside the vehicle. Defendant was later apprehended and arrested.

At the defendant’s trial, the state attempted to introduce photographs of the sawed-off shotgun found in the Hinkle vehicle. The trial court sustained the defendant’s relevance objection. Over defendant’s objection, however, the trial court did permit the state to elicit from its witness, a scientific investigator, that he had photographed and attempted to obtain fingerprints from items found in the car, including the shotgun, and that he was unable to obtain any fingerprints from the shotgun. Defendant argues that the evidence concerning the shotgun was irrelevant and inadmissible.

The state argues that the evidence of the shotgun was admissible to complete the picture of the crime because it was found in the getaway car immediately after the robbery, thus tending to show the part the automobile played in the robbery. We fail to see the connection. The state also suggests that the presence of the shotgun in the trunk supports an inference that the robbers armed themselves to aid in their getaway. Defendant is not charged with armed robbery. There is no evidence "linking the weapon to the crime” and thus it was error to admit it. State v. Thompson, 228 Or 496, 499, 364 P2d 783 (1961). See State v. Harrison, 253 Or 489, 455 P2d 613 (1969); State v. Hall, 36 Or App 133, 583 P2d 587 (1978).

Reversed and remanded for new trial.

1 ORS 164.405 provides:

“(1) A person commits the crime of robbery in the second degree if he violates ORS 164.395 and he:

"(a) Represents by word or conduct that he is armed with what purports to be a dangerous or deadly weapon; or "(b) Is aided by another person actually present.

"(2) Robbery in the second degree is a Class B felony.”

2 Defendant also assigns as error the overruling of his objections concerning the introduction of a photograph which had not been disclosed to defendant’s counsel in accordance with the disclosure statute, ORS 135.815. We do not need to reach this assignment because the case is reversed on other grounds. However, it is apparent that the photographs should have been disclosed and the trial court should have made a determination as to the appropriate sanction, if any. See State v. Addicks, 28 Or App 663, 560 P2d 1095 (1977).