Aaron Christopher Marks v The State Of Oklahoma

F-2005-684

Filed: Oct. 16, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Aaron Christopher Marks appealed his conviction for shooting with intent to kill, robbery with a firearm, and possession of a firearm after a felony. Conviction and sentence were modified to 45 years for the shooting charge, with the other sentences remaining the same. Chapel and Lumpkin dissented.

Decision

The Judgment and Sentence of the District Court of Oklahoma County is MODIFIED to Forty-Five (45) Years Imprisonment in Count 1, and otherwise AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there sufficient evidence to support the convictions for shooting with intent to kill, robbery with a firearm, and possession of a firearm after former felony conviction?
• did the District Court err by refusing to instruct the jury on the "85% Rule" as required by Anderson v. State?
• was the sentence imposed on Appellant excessive?
• should the sentence for Count 1 be modified or should the case be remanded for resentencing due to the Anderson error?

Findings

• the court erred in modifying the sentence in Count 1
• the evidence was sufficient to support the convictions
• the refusal to instruct the jury on the "85% Rule" was an error
• the modification of the sentence was warranted due to Anderson error

F-2005-684

Oct. 16, 2006

Aaron Christopher Marks

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Aaron Christopher Marks, Appellant, was tried by jury and found guilty of Count 1, shooting with intent to kill, in violation of 21 O.S.2001, § 652; Count 2, robbery with a firearm, in violation of 21 O.S.2001, § 801; and Count 3, possession of a firearm after former felony conviction, in violation of 21 O.S.Supp.2003, § 1283, in Oklahoma County District Court, Case No. CF- 2004-2501. The jury sentenced Appellant to fifty (50) years imprisonment in Count 1; thirty-five (35) years imprisonment in Count 2; and fifteen (15) years imprisonment in Count 3. The Honorable Jerry D. Bass, District Judge, ordered the sentences in Counts 1 and 2 served concurrently, and Count 3 served consecutively to Counts 1 and 2.

In Propositions 1, 2, and 3, Appellant challenges the sufficiency of the evidence to support his convictions for each of the respective crimes. We have reviewed the record and find his challenges unconvincing. These propositions are denied. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In Propositions 4 and 5, Appellant claims error in the District Court’s refusal to instruct the jury on the 85% Rule, Anderson v. State, 2006 OK CR 6, 130 P.3d 273, and argues his sentence is excessive. Anderson was decided after Appellant’s trial, but we apply Anderson to all cases pending on direct review at the time Anderson was decided. Under Anderson, the refusal to instruct the jury according to the parole ineligibility requirements of 21 O.S.Supp.2003, § 13.1, for qualifying offenses, is error. We review the facts and circumstances of each case to determine the proper remedy for instructional error under Anderson. Anderson error may be harmless where the Court is convinced the error had no substantial influence on the outcome of the trial. Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Where the Court finds that Anderson error contributed to the sentencing decision in a manner prejudicial to the defendant, we will modify the sentence or remand to the District Court for a re-sentencing trial. 22 O.S.2001, §§ 929, 1066. Considering all the facts and circumstances of this case, the proper remedy is to modify the sentence in Count 1 to forty-five (45) years imprisonment.

DECISION

The Judgment and Sentence of the District Court of Oklahoma County is MODIFIED to Forty-Five (45) Years Imprisonment in Count 1, and otherwise AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 652
2. Okla. Stat. tit. 21 § 801
3. Okla. Stat. tit. 21 § 1283
4. Spuehler v. State, 1985 OK CR 132, 7, 709 P.2d 202, 203-204
5. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
6. Anderson v. State, 2006 OK CR 6, 130 P.3d 273
7. Okla. Stat. tit. 21 § 13.1
8. Okla. Stat. tit. 22 § 929
9. Okla. Stat. tit. 22 § 1066

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 - Shooting with intent to kill
• Okla. Stat. tit. 21 § 801 - Robbery with a firearm
• Okla. Stat. tit. 21 § 1283 - Possession of a firearm after former felony conviction
• Okla. Stat. tit. 21 § 13.1 - Parole ineligibility requirements
• Okla. Stat. tit. 22 § 929 - Instructional errors
• Okla. Stat. tit. 22 § 1066 - Modifications of sentences

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:

• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273
• Simpson v. State, 1994 OK CR 40, 876 P.2d 690