Opinion
No. C-70-12-0907 Cr
Argued January 18, 1972
Reversed and remanded February 4, 1972
Appeal from Circuit Court, Multnomah County.
ALAN F. DAVIS, Judge.
Howard R. Lonergan, Portland, argued the cause and filed the briefs for appellant.
Joseph F. Ceniceros, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and FOLEY and THORNTON, Judges.
REVERSED AND REMANDED.
Defendant was convicted of armed robbery of a hitchhiker. His sole assignment of error is that the trial judge erred in admitting over objection testimony tending to link defendant with a similar robbery in the same general area approximately two months before. The evidence consisted of the testimony of his alleged accomplice and the victim in the prior robbery.
Where the robbery routine and method of operation are so unusual and distinctive as to be like a signature, evidence thereof is admissible. State v. Fuston, 7 Or. App. 436, 490 P.2d 1024 (1971). See also State v. Walsh, 6 Or. App. 346, 487 P.2d 1401 (1971); State v. Woolard, 2 Or. App. 446, 467 P.2d 652, Sup Ct review denied (1970); State v. Moore, 1 Or. App. 394, 460 P.2d 866 (1969), 463 P.2d 373, Sup Ct review denied (1970).
Defendant contends that the prior robbery was insufficiently similar to the charged robbery to justify allowing evidence thereof to be admitted. We agree. In addition to the substantial time interval between the two robberies, viz., two months, the facts of the two crimes were not "so unusual and distinctive as to be like a signature." State v. Fuston, supra at 439. For example, in the case at bar the evidence was that a gun was used by the alleged robber. None was used in the prior robbery. Further, in the earlier robbery the victim's shoes were seized, presumably to impede the victim's efforts to summon police. This was not done in the case at bar. Although it is true as the state points out that there was some similarity in the warnings given by both robbers to their victims to start walking and not look back or they would be shot, we conclude that there was not enough similarity overall between the two crimes to come within the above exception to the general rule against introducing evidence of other distinct crimes. Cf. State v. Fuston, State v. Walsh, State v. Woolard, State v. Moore, all supra. The same conclusion was reached in State v. Sauter, 125 Mont. 109, 112, 232 P.2d 731 (1951), which involved a charge of forcible rape by defendant and another in an automobile after picking up victim in a bar. The court there held that it was error to admit evidence of a rape accomplished by defendant after a similar pickup of another victim, observing that such escapades were "too common * * * to have much evidentiary value in showing a systematic scheme or plan."
Defendant's further contention that he was entitled to notice prior to trial of the state's intention to offer evidence of similar acts was not preserved in the trial court. Therefore there is nothing properly before us to review on appeal. State v. Jorgensen, 8 Or. App. 1, 492 P.2d 312 (1971).
This same contention was considered and rejected in State v. Fuston, 7 Or. App. 436, 490 P.2d 1024 (1971).
Reversed and remanded.