State v. Guerrero

243 Or. 616 (1966)

415 P.2d 28

STATE OF OREGON v. GUERRERO

Supreme Court of Oregon.

Argued at Pendleton May 2, 1966.

Affirmed June 3, 1966.

Oscar D. Howlett, Portland, argued the cause and filed a brief for appellant.

Louis Selken, District Attorney, Bend, argued the cause and filed a brief for respondent.

Before McALLISTER, Chief Justice, and PERRY, *617 SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, Justices.

AFFIRMED.

SLOAN, J.

Defendant was convicted of attempted burglary not in a dwelling. He appeals.

He was apprehended while endeavoring to enter a drug store in Bend. He was searched and a plastic case containing an eye dropper and needles of the kind commonly used by drug addicts was found on his person. These were introduced in evidence at defendant's trial over his objection. This is the only claim of error in the appeal. Defendant claims that the prejudice to him outweighed the probative value of the evidence.

1. In State v. Kristich, 1961, 226 Or 240, 359 P2d 1106, we held that evidence which may indicate the commission of a crime other than the one for which a defendant is charged is admissible if it has probative relevance to the case and its prejudice is not out of proportion to its value. See State v. Flett, 234 Or 124, 380 P2d 634 for further exposition of the rule. In the instant case the state claimed that the evidence tended to show a motive for attempting to burglarize a drug store. We agree.

2. The evidence did not suggest the commission of another crime. But it did degrade defendant as a probable narcotics user. To that extent the evidence was prejudicial. Nevertheless, it also established a compelling motive for defendant to attempt to enter a drug store. Accordingly, the evidence had real probative value and it was proper to have admitted it.

Affirmed.