Opinion
87-CR-310; CA A46102
Argued and submitted June 29, 1988
Affirmed September 7, 1988
Appeal from the Circuit Court, Josephine County, L.A. Cushing, Judge.
Ingrid A. MacFarlane, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Margaret Rabin, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Linda DeVries Grimms, Assistant Attorney General, Salem.
Before Warden, Presiding Judge, and Van Hoomissen and Graber, Judges.
PER CURIAM
Affirmed.
Defendant appeals his conviction for burglary in the second degree. He contends that the trial court erred in instructing the jury on evidence of flight. Because defendant took no exception to the giving of the instruction, the state urges us not to consider it, even though it was error. State v. Stilling, 285 Or. 293, 304, 590 P.2d 1223, cert den 444 U.S. 880 (1979). Defendant argues that we should consider it, because the error is egregious. State v. McNamer, 80 Or. App. 418, 722 P.2d 51 (1986). We agree that the error is egregious under Stilling, but we decline to reverse.
The evidence of defendant's participation in the burglary was clear and substantial. Two witnesses caught defendant and his accomplice "red handed," confronted them before they fled from the scene and later positively identified both in photographs. Both witnesses positively identified defendant in court. The strength of the evidence makes it very unlikely that the result of the trial would have been different had the instruction not been given, and the error, therefore, was harmless. State v. Miller, 300 Or. 203, 220, 709 P.2d 225 (1985), cert den 475 U.S. 1141 (1986).
Defendant's accomplice already had been convicted of the burglary before this case was tried.
Affirmed.