State v. Mathews

538 P.2d 370 (1975)

STATE of Oregon, Respondent, v. Richard Thomas MATHEWS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 17, 1975.

Decided July 14, 1975.

*371 Francis F. Yunker, Portland, argued the cause for appellant. With him on the brief was Darrell E. Bewley, Portland.

James C. Rhodes, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FOLEY, Judge.

Defendant was convicted of possession of a stolen motor vehicle, ORS 481.990, and appeals, assigning as error (1) the introduction at the trial of evidence of other crimes, and (2) the denial of his motion for mistrial on the grounds of misconduct of counsel.

In addition to evidence of the crime charged, evidence was admitted, over objection, of other instances, occurring at about the same time, of defendant's possession of and dealings in stolen automobile parts and stolen tools. The state urges its admission was proper for the purpose of showing his modus operandi and general scheme as well as showing that he knowingly possessed a stolen vehicle. The defendant claimed to operate a repair and assembly garage for four-wheel-drive vehicles. The evidence objected to tended to show that defendant was in the business of receiving auto parts and auto bodies which he knew to be stolen, reassembling them, obtaining spurious motor vehicle registrations, and then selling them as reassembled four-wheel-drive vehicles.

The state may not introduce evidence of other criminal acts merely to blacken defendant's character and to make it seem more likely that he would commit a crime. Evidence of modus operandi and general scheme is admissible when involving evidence of other crimes only if sufficiently distinctive. State v. Manrique, 75 Or.Adv.Sh. 386, 531 P.2d 239 (1975). Here, however, a key issue was the guilty knowledge of the defendant. In such a case, even though it involves evidence of other crimes, where the possession of other stolen goods is under circumstances which form the basis for a sound inference of guilty knowledge of the defendant in the transaction under inquiry, evidence of those facts is admissible. State v. Goldstein, 111 Or. 221, 226, 224 P. 1087 (1924); McCormick, Evidence 450, § 190 (Hornbook series, 2d ed. 1972); II Wigmore, Evidence 192, § 300 (3d ed. 1940). See also State v. Manrique, supra; State v. Holmes, Or. App., 537 P.2d 566 (decided July 8, 1975). Here a sound inference of guilty knowledge arose from the possession of the other stolen goods and the evidence was properly admitted as tending to prove that knowledge.

We turn now to defendant's other assignment of error, the refusal of defendant's motion for a mistrial for misconduct of counsel. In three instances the trial court sustained objections to improper questions or comments by the prosecutor. In one, the court gave a curative instruction and curative instructions were not requested in the other two but motions for mistrial were made. Generally, a motion for mistrial is a matter within the discretion of the trial court because it is *372 usually in a better position to determine if the defendant has been prejudiced so that he will not receive a fair trial. State v. Woolard, 3 Or. App. 291, 472 P.2d 837 (1970), modified, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971). See also State v. Thompson, Or. App., 538 P.2d 78 (decided July 14, 1975). The conduct of neither the prosecutor nor the defense counsel was exemplary, but our review convinces us that the trial court did not abuse its discretion in denying the motions.

Affirmed.