J.S. v The State Of Oklahoma

J-2004-662

Filed: Oct. 1, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

J.S. appealed his conviction for Second Degree Burglary. Conviction and sentence modified to Entering a Building with Certain Intent (Illegal Entry). Judge Cloud dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the June 9, 2004, adjudication order, in Case No. JDL-2004-70 of the Juvenile Division of the Comanche County District Court, is hereby MODIFIED to find that Appellant is adjudicated delinquent for committing the delinquent act of "Entering a Building with Certain Intent (Illegal Entry)." As so modified, the June 9, 2004, adjudication order is AFFIRMED. Upon issuance of mandate, the District Court shall enter an amended journal entry of its delinquent adjudication order consistent with the foregoing Accelerated Docket Order. IT IS so ORDERED.

Issues

• Was the evidence sufficient to find Appellant guilty beyond a reasonable doubt of the allegations which support a finding that Appellant was delinquent?
• Was there a valid waiver of Appellant's right to a jury trial?

Findings

• the court erred in adjudicating Appellant for Second Degree Burglary due to insufficient evidence of the breaking element
• the evidence was sufficient to prove the offense of Entering a Building with Certain Intent (Illegal Entry)
• the court did not err in finding that Appellant waived his right to a jury trial

J-2004-662

Oct. 1, 2004

J.S.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

In the Juvenile Division of the Comanche County District Court, Case No. JDL-2004-70, the State’s petition alleged that Appellant, a fifteen-year-old juvenile, committed the delinquent act of Second Degree Burglary. On June 9, 2004, following a non-jury trial before the Honorable C. William Stratton, Associate District Judge, the District Court found Appellant committed the offense of Second Degree Burglary and sustained the petition by adjudicating Appellant a delinquent child. Appellant appeals this adjudication order.

The appeal was regularly assigned to this Court’s Accelerated Docket under Section XI of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004). Oral argument was held on September 16, 2004. Within this appeal, Appellant raises the following propositions of error:

**Proposition I**
The evidence was insufficient to find Appellant was guilty beyond a reasonable doubt of the allegations which support a finding that Appellant was delinquent.

**Proposition II**
There was no waiver, or at most, an insufficient waiver of Appellant’s right to a jury trial.

After hearing oral argument and after a thorough consideration of Appellant’s propositions of error and the entire record before us on appeal, by a vote of four (4) to zero (0), the Court affirms the order of adjudication as hereinafter modified. The Court FINDS merit in Appellant’s Proposition I, insofar as it urges that the State failed to prove the breaking element necessary for an adjudication of Second Degree Burglary. However, the Court further finds that the evidence presented by the State was sufficient to prove an offense of Entering a Building with Certain Intent (Illegal Entry). For this reason, the District Court’s adjudication order must be modified as hereinafter set forth.

In Appellant’s Proposition II, Appellant contends the record is insufficient to support a finding that Appellant entered a valid waiver of his right to a trial by jury. We find Proposition II is without merit. Appellant was represented by counsel in the delinquency proceedings below. While so represented, Appellant signed a Waiver of Jury Trial that was witnessed by his trial counsel and filed into the record. When witnessing Appellant’s signature, counsel asserted that he had explained to Appellant his right to a trial by jury. Absent any evidence that Appellant did not understand the waiver and did not knowingly consent to waiving a jury, the procedure used in Appellant’s matter presents a record sufficient to demonstrate Appellant consented to a non-jury trial.

IT IS THEREFORE THE ORDER OF THIS COURT that the June 9, 2004, adjudication order, in Case No. JDL-2004-70 of the Juvenile Division of the Comanche County District Court, is hereby MODIFIED to find that Appellant is adjudicated delinquent for committing the delinquent act of Entering a Building with Certain Intent (Illegal Entry). As so modified, the June 9, 2004, adjudication order is AFFIRMED. Upon issuance of mandate, the District Court shall enter an amended journal entry of its delinquent adjudication order consistent with the foregoing Accelerated Docket Order. IT IS so ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 1st day of October, 2004.

STEVE LILE, Vice Presiding Judge
GARY L. LUMPKIN, Judge
CHARLIE S. CLOUD, Judge
CHARLES S. CHAPEL, Judge
RETA M. STRUBHAR, Judge
ATTEST: Michael S. Cohin, Clerk

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Footnotes:

1. Okla. Stat. tit. 21 § 1435.
2. Okla. Stat. tit. 22 § 987.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 (2011) - Burglary in the Second Degree
• Okla. Stat. tit. 21 § 1481 (2011) - Entering a Building with Certain Intent
• Okla. Stat. tit. 22 § 812 (2011) - Waiver of Jury Trial

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Yeager v. State, 82 Okl.Cr. 326, 332, 169 P.2d 579, 583
• Hayes v. State, 1975 OK CR 193, 4-7, 541 P.2d 210, 212