## Facts

- Donald Edward Cornell and Mark Allen Pinnell obtained John Ruffner’s contact information from a magazine advertising sexual contacts and went to Ruffner’s residence with Velma Varzali, who remained in the car.
- After several hours, Cornell and Pinnell returned to the car with property taken from the residence.
- Cornell later wrote checks on Ruffner’s account and used Ruffner’s credit cards.
- Ruffner was found dead in his apartment, with his hands and feet tied behind his back and a cord around his neck; he died from asphyxiation and was gagged with toilet paper.
- The apartment was ransacked and multiple items were missing, including Ruffner’s wallet and checkbook.
- When arrested at Dixie Timmons’s house, Cornell possessed Ruffner’s checkbook and credit cards and wore rings taken from Ruffner.
- The prosecution introduced evidence of a similar prior assault/robbery of Randy Brown about 10 days earlier involving Cornell and Pinnell to prove identity and a common scheme.
- The prosecution offered 11 out-of-court statements by Pinnell made before and after the Brown and Ruffner incidents, at times when the stolen property had not yet been fully disposed of.
- The trial court found Cornell and Pinnell were coconspirators and admitted the statements as made during and in furtherance of the conspiracy.

## Issues

1. Whether Pinnell’s out-of-court statements were admissible against Cornell under OEC 801(4)(b)(E) as statements by a coconspirator made during and in furtherance of the conspiracy.
2. Whether sufficient evidence supported a finding that the conspiracy continued when Pinnell made the statements, including statements made after the assaults but before full disposition of stolen property.
3. What burden of proof and decisionmaker govern the foundational findings required to admit coconspirator statements under OEC 801(4)(b)(E).

## Decision

- The Oregon Supreme Court affirmed Cornell’s felony-murder conviction.
- The court held the trial court did not err in admitting Pinnell’s 11 statements under OEC 801(4)(b)(E).
- The court concluded there was sufficient evidence of a conspiracy involving Cornell and Pinnell, and the conspiracy continued through the period of retaining, using, and disposing of stolen property.
- The court approved using a preponderance-of-the-evidence standard for the foundational admissibility findings, made by the judge.

## Legal Principles

- Under OEC 801(4)(b)(E), a statement is not hearsay if made by a coconspirator during the course and in furtherance of the conspiracy.
- Before admitting a coconspirator statement, the court must find by a preponderance of the evidence: (1) a conspiracy existed, (2) the declarant and defendant were members, and (3) the statement was made during and in furtherance of the conspiracy.
- A conspiracy may be proved by circumstantial evidence and need not be shown by an express agreement.
- The temporal scope of a conspiracy may extend beyond the immediate commission of the charged acts when the conspirators’ objectives include retaining, using, or disposing of stolen property and avoiding detection while still pursuing those objectives.
- Statements may be “in furtherance” when they facilitate ongoing cooperation or implementation of the conspirators’ objectives; purely retrospective narratives or idle confessions may fall outside the rule.
- The judge decides the preliminary admissibility facts under the evidence rules using a preponderance standard and may consider the proffered statements along with other evidence.

## Conclusion

The court held that the coconspirator-statement rule applied because the evidence supported a continuing conspiracy that included handling and disposition of stolen property, and the challenged statements were made during and in furtherance of that conspiracy under a preponderance-of-the-evidence standard.


State v. Cornell, 842 P.2d 394 (Or. 1992)