No. 791 October 30, 2024 813
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
THEODORE STACEY JOHNSON,
aka Theodore Johnson,
aka Theodore Stacey Harold John Johnson,
Defendant-Appellant.
Jackson County Circuit Court
20CR22238; A178701
Laura A. Cromwell, Judge. (Judgment April 26, 2022)
Lorenzo A. Mejia, Judge. (Supplemental Judgment May
12, 2022)
Argued and submitted March 18, 2024.
George W. Kelly argued the cause and filed the brief for
appellant.
Colm Moore, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
814 State v. Johnson
HELLMAN, J.
Defendant appeals from a judgment of conviction
for murder in the second degree, ORS 163.115, robbery
in the first degree, ORS 164.415, kidnapping in the first
degree, ORS 163.235, and felon in possession of a firearm,
ORS 166.270. In his sole assignment of error, he argues that
the trial court erred in denying his motion for judgment of
acquittal (MJOA) on the charge of murder in the second
degree because the state failed to introduce sufficient evidence to corroborate the testimony of his accomplices. We
affirm.
“We review a trial court’s denial of an MJOA to
determine whether, after viewing the facts in the light most
favorable to the state, a rational trier of fact could have
found the essential elements of the crime proved beyond a
reasonable doubt.” State v. McCombs, 330 Or App 545, 558,
544 P3d 390, rev den,
372 Or 718 (2024) (internal quotation
marks and brackets omitted).
A detailed recitation of the facts would not assist the
parties, bench, or bar. On the morning of January 10, 2020,
C was found dead near a logging road. He had been shot nine
times, had been driven over by a vehicle, and had died in the
past 12 hours. The investigation implicated defendant and
two other people, Bull and Dallman, in C’s murder. At trial,
both Bull and Dallman testified that defendant had participated in the events that led to the kidnapping, robbery, and
murder. As relevant to this appeal, the state also presented
the following evidence: C’s car was used in the murder; a
witness who knew Bull testified that he saw Bull driving
the victim’s car on the night of January 9, accompanied by a
woman and an unknown man in the back seat; DNA found
in the back of C’s car indicated that defendant “[could] not
be excluded as the major contributor to [the] DNA mixture”;
surveillance video showed defendant leaving the victim’s
car with Dallman and another man early in the morning
on January 10; defendant sent social media messages on
January 9 and January 10 that referred to committing murder; defendant and Dallman’s cell phones were both found in
the same purse on the side of the road; and defendant sought
to invent an alibi for January 9.
Nonprecedential Memo Op: 335 Or App 813 (2024) 815
Defendant moved for a judgment of acquittal, arguing that the state’s case was based on Dallman’s accomplice
testimony and that there was insufficient corroborating evidence. The trial court denied the motion. Although the court
declined to determine if Dallman was an accomplice as a
matter of law, it determined that there was “plenty of corroborating evidence.” The trial court also instructed the jury
that it must determine as a factual matter if Dallman was
an accomplice. The jury convicted defendant on all charges.
This appeal followed.
On appeal, defendant argues that the trial court
erred in denying his motion because Bull and Dallman were
accomplices and their testimony “was not corroborated.” The
state responds that defendant “cannot prevail on appeal”
because he “fails to argue that Dallman was an accomplice
as a matter of law.” We do not need to resolve that issue
because, even if Dallman was an accomplice, we conclude
that sufficient evidence corroborated her testimony.
ORS 136.440(1) provides:
“A conviction cannot be had upon the testimony of an
accomplice unless it is corroborated by other evidence that
tends to connect the defendant with the commission of
the offense. The corroboration is not sufficient if it merely
shows the commission of the offense or the circumstances
of the commission.”
“[C]orroborating evidence must fairly and legitimately tend[ ] to connect the defendant with the commission
of the crime, so that it can in truth be said that his conviction is not based entirely upon evidence of the accomplice[s].”
State v. Riley, 288 Or App 807, 813,
407 P3d 946 (2017), aff’d,
365 Or 44,
443 P3d 610 (2019) (internal quotation marks
omitted). The evidence does not have to “corroborate each
material fact required to sustain a conviction.”
Id. Nor must
it corroborate a “particular theory of the commission of the
offense.” State v. Walton,
311 Or 223, 242,
809 P2d 81 (1991)
(emphasis in original). Instead, “[e]ven slight or circumstantial evidence will suffice if it tends to connect the defendant
with the crime.” Riley, 288 Or App at 812.
816 State v. Johnson
Here, defendant does not dispute that the state’s
evidence connected him to the charged crimes. Instead, he
argues that the evidence was insufficient to demonstrate
that he “knew [C] would be killed or participated in the killing.” But under Walton and Riley, the corroborating evidence
does not have to affirmatively prove defendant’s knowledge,
intent, or actions. The evidence must only “legitimately tend
to connect [him] with the commission of the crime,” Riley,
288 Or App at 813 (brackets omitted), which it does.
Affirmed.
