Gregory Lee Jackson, Jr. v The State Of Oklahoma

F-2001-1444

Filed: Mar. 12, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gregory Lee Jackson, Jr. appealed his conviction for Driving Under the Influence of Alcohol and Driving While Privilege Suspended. The conviction and sentence were three years in prison for DUI and one year in jail plus a $200 fine for the suspended license charge, but the sentences would be served at the same time. Jackson said the trial was not fair because the jury did not get instructions on a lesser offense, there wasn't enough proof of DUI, and that all the mistakes made together caused unfairness in the trial. The Court found that the jury should have been told about the less serious charge of driving while impaired, so they reversed the DUI conviction and ordered a new trial. However, they agreed with the conviction for Driving While Privilege Suspended. Judge Johnson dissented in the opinion.

Decision

The judgment and sentence on Count I, driving under the influence of alcohol, is hereby REVERSED and the matter is REMANDED to the District Court of Oklahoma for a new trial with proper instructions. The judgment and sentence on Count II is hereby AFFIRMED.

Issues

• Was there instructional error that left Appellant's jury without proper guidance on lesser offenses and denied Appellant a fair trial?
• Did insufficient evidence exist to convict Appellant of driving under the influence?
• Did the cumulative effect of the errors deprive Appellant of a fair trial?

Findings

• the court erred in failing to provide a jury instruction for driving while impaired as a lesser-included offense, resulting in a reversal of the conviction for driving under the influence
• the judgment and sentence on Count II for driving while privilege suspended is affirmed
• propositions two and three regarding insufficient evidence and cumulative errors are moot

F-2001-1444

Mar. 12, 2003

Gregory Lee Jackson, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Gregory Lee Jackson, Jr., was tried by jury in the District Court of Oklahoma County, Case No. CF-2001-1698, and convicted of Driving Under the Influence of Alcohol (2nd offense), Count I, in violation of 47 O.S.2000, § 11-902, and Driving While Privilege Suspended, Count II, in violation of 47 O.S.1999, § 6-303. The jury set punishment at three (3) years imprisonment on Count I and one (1) year incarceration in the county jail and a $200.00 fine on Count II. The trial judge sentenced Appellant accordingly and ran the sentences concurrently. Appellant now appeals his convictions and sentences.

Appellant raises the following propositions of error in this appeal:

I. Instructional error left Appellant’s jury without proper guidance on lesser offenses and denied Appellant a fair trial;

II. Insufficient evidence existed to convict Appellant of driving under the influence; and

III. The cumulative effect of the errors addressed above deprived Appellant of a fair trial.

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 is required with respect to Count I, Driving Under the Influence. With respect to proposition one, we find plain error occurred when Appellant did not receive a jury instruction for the crime of driving while impaired, 47 O.S. Supp. 1999, § 761, as a lesser-included offense to the charged crime of driving under the influence of alcohol. The error was not harmless. Propositions two and three are thus moot.

DECISION

The judgment and sentence on Count I, driving under the influence of alcohol, is hereby REVERSED and the matter is REMANDED to the District Court of Oklahoma for a new trial with proper instructions. The judgment and sentence on Count II is hereby AFFIRMED.

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Footnotes:

1. 47 O.S.2000, § 11-902
2. 47 O.S.1999, § 6-303
3. 47 O.S. Supp. 1999, § 761
4. Penny v. State, 765 P.2d 797, 800 (Okl.Cr.1988)
5. Lashley v. State, 757 P.2d 845, 846 (Okl.Cr.1988)
6. Bernhardt v. State, 719 P.2d 832, 833-34 (Okl.Cr.1986)
7. Shrum v. State, 991 P.2d 1032, 1035 (Okl.Cr.1999)
8. Yell v. State, 856 P.2d 996, 997 (Okl.Cr.1993)
9. 47 O.S. Supp. 1999, § 753
10. Simpson v. State, 876 P.2d 690, 702 (Okl.Cr.1994)

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 (2000) - Driving Under the Influence of Alcohol
• Okla. Stat. tit. 47 § 6-303 (1999) - Driving While Privilege Suspended
• Okla. Stat. tit. 47 § 761 (1999) - Driving While Impaired
• Okla. Stat. tit. 47 § 753 (1999) - Related Offenses

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:

• Penny v. State, 765 P.2d 797, 800 (Okl.Cr.1988)
• Lashley v. State, 757 P.2d 845, 846 (Okl.Cr.1988)
• Bernhardt v. State, 719 P.2d 832, 833-34 (Okl.Cr.1986)
• Shrum v. State, 991 P.2d 1032, 1035 (Okl.Cr.1999)
• Yell v. State, 856 P.2d 996, 997 (Okl.Cr.1993)
• Simpson v. State, 876 P.2d 690, 702 (Okl.Cr.1994)