Charles Edward Moore, Jr. v The State Of Oklahoma

F-2004-1081

Filed: Mar. 28, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Charles Edward Moore, Jr. appealed his conviction for robbery with firearms, kidnapping, and possession of a firearm after a felony. His conviction and sentence totaled 14 years for each robbery count, 10 years for each kidnapping count, and 10 years for the firearm possession count, served one after the other. Judge A. Johnson dissented.

Decision

The Judgment of the District Court of Tulsa County in Counts 1 through 4 is AFFIRMED. The Sentences in Counts 1 and 2 are MODIFIED to ten years imprisonment on each count. The Sentences in Counts 3 and 4 are AFFIRMED. The Judgment and Sentence in Count 5 is REVERSED and REMANDED WITH INSTRUCTIONS TO DISMISS. 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 a violation of the proscription against double punishment for two counts of robbery with a firearm upon theft of the same truck?
• Did the convictions for both robbery with a firearm and possession of a firearm after former conviction of a felony violate 21 O.S. 2001 § 11?
• Was there an error in the failure to instruct on parole ineligibility?
• Was there ineffective assistance of counsel that affected the outcome of the trial?
• Did the admission of prejudicial other crimes evidence deprive Mr. Moore of his due process right to a fair trial?
• Does cumulative error require reversal?

Findings

• the court did not err in the double punishment for two counts of robbery with a firearm
• the conviction for possession of a firearm after former felony conviction was reversed and remanded with instructions to dismiss
• the refusal to give Appellant's requested instruction on parole eligibility was error, resulting in a modification of sentences on Counts 1 and 2 to ten years each
• no relief was required for claims of ineffective assistance of counsel
• the admission of evidence of other crimes did not violate Appellant's due process rights
• the claim of cumulative error was without merit

F-2004-1081

Mar. 28, 2006

Charles Edward Moore, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Charles Edward Moore, Jr., Appellant, was tried by jury and found guilty of robbery with firearms, in violation of 21 O.S. 2001 § 801 (Counts 1 and 2); kidnapping, in violation of 21 O.S. 2001 § 741 (Counts 3 and 4); and possession of a firearm after former conviction of a felony, in violation of 21 O.S.Supp. 2002 § 1283 (Count 5), in Tulsa County District Court, Case No. CF-2003-4875. Appellant was represented by counsel.

At the conclusion of the first stage of trial, the jury sentenced Appellant to fourteen (14) years imprisonment on each Count of robbery with firearms, and ten (10) years imprisonment on each Count of kidnapping. After bifurcation, the jury sentenced Appellant to ten (10) years imprisonment for possession of a firearm after former conviction of a felony. The Honorable Rebecca Brett Nightingale, District Judge, imposed judgment and sentence according to the jury verdicts, and ordered all terms served consecutively.

Mr. Moore appeals, raising the following propositions of error:
1. Convictions For Two Counts Of Robbery With A Firearm Upon Theft Of The Same Truck Violated The Proscription Against Double Punishment.
2. Section 11 Precluded Convictions For Both Robbery With A Firearm And Possession Of A Firearm AFCF.
3. Failure To Instruct On Parole Ineligibility Was Error.
4. Appellant Was Deprived Of Effective Representation.
5. Admission Of Prejudicial Other Crimes Evidence Deprived Mr. Moore Of The Due Process Right To A Fair Trial.
6. Cumulative Error Requires Reversal.

In Proposition 1, the Court finds Appellant’s two convictions for robbery neither subject him to multiple punishments in violation of 21 O.S. 2001 § 11 nor place Appellant twice in jeopardy for the same offense, as prohibited by Article 2, § 21 of the Oklahoma Constitution and the Fifth and Fourteenth Amendments to United States Constitution. Davis v. State, 1999 OK CR 48, 993 P.2d 124; Orcutt v. State, 1931 OK CR, 52 Okl.Cr. 217, 3 P.2d 912 (1931); Mansfield v. Champion, 992 F.2d 1098 (10th Cir. 1993).

In Proposition 2, the Court finds that under the specific circumstances presented Appellant’s convictions for possession of a firearm after former felony conviction and robbery with firearms violate 21 O.S. 2001 § 11. Appellant’s conviction in Count 5 is reversed and remanded with instructions to dismiss. Davis v. State, 1999 OK CR 48, 993 P.2d 124.

In Proposition 3, the Court finds error in the District Court’s refusal to give Appellant’s requested instruction on parole eligibility. The remedy in this case is to modify Appellant’s two fourteen-year sentences for robbery with firearms to ten years imprisonment on each count. The District Court’s order that all sentences run consecutively is within its discretion and will not be disturbed on appeal. Anderson v. State, 2006 OK CR 6, P.3d.

In Proposition 4, Appellant challenges his convictions based on ineffective assistance of counsel. The Court finds Appellant cannot show that but for counsel’s allegedly deficient performance, there is any reasonable probability of a different outcome at trial. No relief is required. Davis v. State, 1999 OK CR 16, 980 P.2d 1111, 1120.

Appellant’s related Proposition 5, challenging the trial court’s admission of evidence of other crimes, wrongs, or bad acts, is also denied. 12 O.S. 2001 § 2404. Jones v. State, 2006 OK CR 5, __P.3d.

Appellant’s Proposition 6, arguing for reversal or modification due to cumulative error, is without merit.

DECISION

The Judgment of the District Court of Tulsa County in Counts 1 through 4 is AFFIRMED. The Sentences in Counts 1 and 2 are MODIFIED to ten years imprisonment on each count. The Sentences in Counts 3 and 4 are AFFIRMED. The Judgment and Sentence in Count 5 is REVERSED and REMANDED WITH INSTRUCTIONS TO DISMISS. 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. Davis U. State, 1999 OK CR 48, 993 P.2d 124;
2. Orcutt V. State, 1931 OK CR, 52 Okl.Cr. 217, 3 P.2d 912 (1931);
3. Mansfield v. Champion, 992 F.2d 1098 (10th Cir. 1993).
4. Davis U. State, 1999 OK CR 48 IT 13, 993 P.2d 124.
5. Anderson v. State, 2006 OK CR 6, P.3d .
6. Davis v. State, 1999 OK CR 16, I 38, 980 P.2d 1111, 1120.
7. Jones v. State, 2006 OK CR 5 9 48, __P.3d .
8. Anderson v. State, 2006 OK CR, IT 25, P.3d.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2011) - Robbery with Firearms
• Okla. Stat. tit. 21 § 741 (2011) - Kidnapping
• Okla. Stat. tit. 21 § 1283 (Supp. 2002) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 11 (2011) - Prohibition Against Multiple Punishments
• Okla. Stat. tit. 12 § 2404 (2011) - Admissibility of Other Crimes, Wrongs, or Bad Acts

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, 993 P.2d 124
• Orcutt v. State, 1931 OK CR, 52 Okl.Cr. 217, 3 P.2d 912
• Mansfield v. Champion, 992 F.2d 1098 (10th Cir. 1993)
• Davis v. State, 1999 OK CR 48
• Anderson v. State, 2006 OK CR 6
• Davis v. State, 1999 OK CR 16, 980 P.2d 1111
• Jones v. State, 2006 OK CR 5
• Anderson v. State, 2006 OK CR