State v. Latta , 246 Or. 218 ( 1967 )

O’CONNELL, J.

Defendant appeals from a judgment of conviction for the crime of burglary not in a dwelling. The facts are as follows:

On the evening of November 28,1964, the defendant and two other men were apprehended together at Southwest Bell and Johnson Creek Boulevard, which is in northern Clackamas county not far from the Portland city limits. The three of them, while being observed by the officer, drove up to a telephone booth. All three got out and went to the rear of the car. One of them then got back into the car and the other two, including defendant, walked toward the phone booth. Defendant remained outside the booth and his companion entered. Defendant handed something to the man in the booth and the man in the booth commenced fitting something to the bottom of the telephone. Upon the discovery of the officer the man inside the booth handed something to defendant, who threw it towards the car. A search of the car and the adjacent area disclosed mechanical parts which when assembled composed a mechanism capable of opening the coin boxes on telephones. Most of the parts were found within the car, some on the front seat and some on the back seat in paper bags. One part was found on the ground adjacent the front door. There was also found on the back seat a bag of nickels, dimes and quarters totalling $234.60.

On November 29, 1964, the next day, a telephone box in the city of Willamette was found to have been broken into and the box cover was missing. The record does not show how far Willamette is from the first burglary but Clackamas county citizens would know that it was about seven or eight miles. The records of the telephone company indicate that November 2, 1964, was the last time the Willamette telephone booth was checked by the company.

The principal assignment of error is directed at the admission into evidence of the box cover removed from the Willamette phone booth. The exhibit was received after the director of the Oregon State Crime Detection Laboratory testified that the markings on the box cover had been made by the chucks of the tool which was found in the automobile and on the ground near the scene of the alleged burglary. The exhibit was admitted solely for the purpose of showing the use which could be made of the tool. The trial court gave the following explanation in admitting the exhibit :

“THE COURT: I would now advise the jury and the record should disclose that the Court has set aside its previous ruling with respect to the admissibility of State’s Exhibit 15 for identification, which is the green colored coin box door, and that the same is now received in evidence for the limited and sole purpose only of permitting evidence to be received of what use, if any, could be made of State’s Exhibits 1 and 2 [the chucks] and for no other purpose, and the evidence and the testimony of Manuel Boyes with respect to State’s Exhibits 1 and 2 and State’s Exhibit 15 is permitted to stand for such limited purpose only and for no other purpose.”

It is contended that the admission of this evidence violates the rule forbidding the prosecution from introducing evidence of other crimes to show the defendant’s bad character.

Evidence of other crimes is admissible against the defendant if it “is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” McCormick, Evidence 327 (1954).

It is possible that the jury could infer that because the tool used to open the Willamette phone box was later found in defendant’s possession defendant committed the Willamette burglary and because he did so he is a bad man and therefore committed the burglary for which he is now on trial. But conceding that the jury could draw such an inference from the evidence, it is nevertheless admissible if, as McCormick points out, it is “substantially relevant” for some other purpose. We are of the opinion that the evidence in this case has this other relevancy.

The state wished to prove that the tool found in defendant’s possession^① was capable of being used for the purpose of opening a phone box. This could have been an important part of the state’s case if, as in the companion ease of State v. Meidel, 83 Or Adv Sh 567, 420 P2d 386 (1966), it was asserted that the defendant thought the tool was an automobile valve lifter.

The state had elicited testimony from one witness who explained that the tool could be used to open a phone box. The state wished to go beyond this showing of a possible use to prove that the tool in question was actually used to open a box. It was of course possible to show this much through the use of a box cover not involved in another burglary. However, the state wanted to show not only that the tool could be used to open a phone box but also that it was designed to be used as a burglary tool and was in defendant’s possession for the purpose of burglarizing the phone booth in question. No better evidence could be adduced for this purpose than to show that the tool had actually been used in another burglary. The possible prejudice created by the fact that the jury might think that defendant was the burglar on the previous occasion is not enough in our opinion to preclude the use of the evidence for the purpose for which it was employed in this ease, particularly in view of the trial court’s explanation to the jury that the evidence was received only for the limited purpose of showing the use which could be made of the tool.

It is further argued that the box cover should have been excluded because the state did not show who had possession of it from the time it was removed from the Willamette phone booth until introduced into evidence. Although defendant objected to the introduction of the evidence on various grounds, he at no time objected to it on the ground that it was in any different condition than it was at the time it was removed from the booth.^②

The other assignments of error are also without merit.

Judgment affirmed.

① The jury could reasonably believe that the tool was in defendant’s possession at the time of the burglary on trial.

② An objection must be stated with, sufficient specificity to give the trial court and opposing counsel an opportunity to remedy defects in the evidence. See, e.g., Miller v. Lillard, 228 Or 202, 364 P2d 706 (1961); Fidelity Sec. Corp. v. Brugman, 137 Or 38, 1 F2d 131, 75 ALR 1333 (1931).