Marvis Evans v The State Of Oklahoma
F-2007-848
Filed: Dec. 19, 2008
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Marvis Evans appealed his conviction for robbery with a firearm and possession of a firearm after a felony conviction. The court upheld his conviction and sentenced him to 20 years in prison for both counts. However, the court reversed his conviction for pointing a firearm at another person because it found that he was punished twice for the same act. Judge A. Johnson disagreed with the decision.
Decision
The judgment and sentences on Count I and II are hereby AFFIRMED. The judgment and sentence on Count III is hereby REVERSED and DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was Appellant's right to be free from double jeopardy and double punishment violated?
- Was the evidence sufficient to sustain the convictions?
Findings
- the court erred in finding no double jeopardy violation
- evidence was sufficient to sustain the convictions for Counts I and II
- the judgment and sentence on Count III was reversed and dismissed
F-2007-848
Dec. 19, 2008
Marvis Evans
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, PRESIDING JUDGE:
Appellant, Marvis Evans, was tried by jury in the District Court of Oklahoma County, Case No. CF-2005-3586, and convicted of the following crimes: Robbery with a Firearm (Count I), after two or more prior felony convictions, in violation of 21 O.S.2001, § 801; Possession of a Firearm after felony conviction (Count II), in violation of 21 O.S.2002, § 1283; and Pointing a Firearm at Another, after two or more prior felony convictions (Count III), in violation of 21 O.S.2001, § 1289.16. The jury set punishment at twenty (20) years imprisonment on each count. The trial judge sentenced Appellant accordingly, ordering counts I and III to run concurrently, but consecutively to Count II. Appellant now appeals his convictions and sentences.
Appellant raises the following propositions of error in this appeal:
I. Appellant’s right to be free from double jeopardy and double punishment was violated; and
II. The evidence was insufficient to sustain the convictions.
1 After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal or modification is not required. With respect to proposition one, we find no double jeopardy violation at all and no double punishment violation concerning the simultaneous convictions for robbery with a firearm and possessing a firearm after a former felony conviction. We agree, therefore, with the reasoning of the unpublished case cited in the briefs of Hamilton v. State, F-2005-1085 (March 30, 2007), as it applies to this case, i.e., Appellant was guilty of being a felon in possession of a firearm from the minute he first took possession of the weapon that day. By enacting 21 O.S. § 1283 (2001), our Legislature clearly intended to punish felons who possess firearms, regardless of whether they actually use them to facilitate a new crime.
We find, however, that Appellant has been punished twice for the same criminal act by his simultaneous convictions for robbery with firearms and pointing a firearm. Davis v. State, 1999 OK CR 48, 1 13, 993 P.2d 124, 126. On this point, Hammon v. State, 1995 OK CR 33, 898 P.2d 1287 is distinguishable, involving two separate culprits and two separate acts. Count three, the pointing charge, is therefore reversed and dismissed.
Regarding proposition two, we find, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury’s verdict, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. Even 2 assuming, arguendo, that there was an extra-judicial identification problem in this case, the evidence was clearly sufficient without the victims’ identifications. The arresting officers caught Appellant within moments of the crime with evidence of the crime (and his own i.d.) on his person. Moreover, Appellant made damaging admissions while being transported in the police car.
DECISION
The judgment and sentences on Count I and II are hereby AFFIRMED. The judgment and sentence on Count III is hereby REVERSED and DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE BILL GRAVES, DISTRICT JUDGE
APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
STACY SMITHLAUGHLIN
1330 N. CLASSEN BLVD.
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT
JUDITH L. JOHNSON
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT
MICHAEL FISHER
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA COUNTY
THOMAS LEE TUCKER
DISTRICT ATTORNEY’S OFFICE
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE
OPINION BY: LUMPKIN, P.J.
C. JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
RD 3
Footnotes:
- 21 O.S.2001, § 801; Possession of a Firearm after felony conviction (Count II), in violation of 21 O.S.2002, § 1283; and Pointing a Firearm at Another, after two or more prior felony convictions (Count III), in violation of 21 O.S.2001, § 1289.16.
- Hamilton U. State, F-2005-1085 (March 30, 2007)
- Davis v. State, 1999 OK CR 48, 1 13, 993 P.2d 124, 126.
- Hammon v. State, 1995 OK CR 33, 898 P.2d 1287.
- Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204.
- Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008)
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 801 - Robbery with a Firearm
- Okla. Stat. tit. 21 § 1283 - Possession of a Firearm after Felony Conviction
- Okla. Stat. tit. 21 § 1289.16 - Pointing a Firearm at Another
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:
- Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126
- Hammon v. State, 1995 OK CR 33, 898 P.2d 1287
- Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
- Hamilton U. State, F-2005-1085 (March 30, 2007)