David Land Ashlock v The State Of Oklahoma

F-2000-1138

Filed: AUG. 31, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

David Land Ashlock appealed his conviction for Assault and Battery with a Dangerous Weapon. Conviction and sentence were reversed and the case was dismissed. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the trial court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• Was there an error in the trial court's refusal to give an instruction on the defense of another charge of assault and battery with a dangerous weapon?
• Did the jury convict Mr. Ashlock of a crime not charged in the Information, depriving him of a fair trial?
• Did the prosecutor commit reversible error by attempting to define the term reasonable doubt over objection?

Findings

• the trial court erred in not giving an instruction on defense of another charge of assault and battery with a dangerous weapon
• the jury convicted Mr. Ashlock of a crime not charged in the Information
• the prosecutor did not commit reversible error when he attempted to define, over objection, the term reasonable doubt
• the trial court committed reversible error when it instructed the jury, over the defendant's objection, on a crime not charged
• the Judgment and Sentence of the trial court is reversed and remanded with instructions to dismiss

F-2000-1138

AUG. 31, 2001

David Land Ashlock

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, David Land Ashlock, was convicted of Assault and Battery with a Dangerous Weapon, after former conviction of two felonies, in Creek County District Court, Case No. CF 1999-110. Jury trial was held before the Honorable David Martin, Associate District Judge, on September 20th – 24th, 1999. The jury set punishment at forty (40) years imprisonment and assessed a Ten Thousand Dollar ($10,000.00) fine. From the Judgment and Sentence imposed, Appellant filed this appeal.

Appellant raised three propositions of error:
1. The trial court erred in not giving an instruction on defense of another charge of assault and battery with a dangerous weapon;
2. Mr. Ashlock was deprived of a fair trial when the jury convicted Mr. Ashlock of a crime not charged; and
3. The prosecutor committed reversible error when he attempted to define, over objection, the term reasonable doubt.

After thorough consideration of these propositions and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that reversal is warranted on Proposition II for the reasons set forth below.

The amended Information filed in this case charged Mr. Ashlock with first degree Manslaughter and referenced the statutory authority of 21 O.S. § 711. At trial, over trial counsel’s objection and without comment from the State, the trial court instructed the jury on the crime of Assault and Battery with a Dangerous Weapon. The jury specifically found Appellant not guilty of Manslaughter, but guilty of Assault and Battery with a Dangerous Weapon. Appellant submits he was deprived of a fair trial when he was convicted of a crime not charged in the Information, after he objected to the trial court’s proposed instruction. We agree.

All lesser included instructions are to be given if they are supported by the evidence, and a defendant is deemed to know that he may be convicted of the greater crime with which he is charged and any lesser included offense whether the lesser included offense is pled in the Information or not. Shrum v. State, 1999 OK CR 41, ¶ 6, 991 P.2d 1032, 1034. In the present case, the State’s evidence would support an instruction on Assault and Battery with a Dangerous Weapon. However, when a trial court proposes a lesser included instruction be given and the defendant objects, the defendant has a right to affirmatively waive any lesser included offense instruction and proceed on an all or nothing approach. Shrum, 1999 OK CR 41, ¶ 11, 991 P.2d at 1036. It is clear from the record before us that Appellant’s trial counsel objected to the instructions and attempted to waive any lesser offense instructions. Despite this strong objection, the trial court did not make any personal inquiry of the defendant to determine his intentions and went on to give the instruction. Cf. Ballard v. State, 2001 OK CR 20, ¶ 8, — P.3d — (reversal required where record did not show trial court obtained a personal affirmative waiver of lesser included offenses from the defendant). The jury went on to convict Appellant of the lesser offense. Had the trial court honored Appellant’s strategic trial decision, we cannot say the jury would have convicted him of any crime. Accordingly, we find Appellant was denied a fair trial and the trial court committed reversible error when it instructed the jury, over the defendant’s objection, on a crime not charged in the Information – a crime which was not necessarily included in the offense charged. The trial court failed to comply with Shrum, 1999 OK CR 41, ¶ 11, 991 P.2d at 1036, and Ballard, 2001 OK CR 20, ¶ 8, — P.3d — , and deprived Appellant of his right to affirmatively waive instructions on lesser offenses and proceed on an all or nothing approach.

DECISION

The Judgment and Sentence of the trial court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

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Footnotes:

1. 21 O.S. § 711
2. Shrum v. State, 1999 OK CR 41, I 6, 991 P.2d 1032, 1034
3. Shrum, 1999 OK CR 41, I 11, 991 P.2d at 1036
4. Ballard V. State, 2001 OK CR 20, I 8, -- P.3d --
5. Smith U. State, 727 P.2d 1366 (Okl.Cr. 1986)
6. Baysinger v. Territory, 15 Okl. 386, 82 P. 728 (1905)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 - Manslaughter
• Okla. Stat. tit. 21 § 701.8 - Instructions on Lesser Included Offenses
• Okla. Stat. tit. 21 § 11-801(B)(1) - Definitions of Assault and Battery

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Shrum v. State, 1999 OK CR 41, I 6, 991 P.2d 1032, 1034
• Shrum v. State, 1999 OK CR 41, I 11, 991 P.2d at 1036
• Ballard v. State, 2001 OK CR 20, I 8, -- P.3d --
• Smith v. State, 727 P.2d 1366 (Okl.Cr. 1986)
• Baysinger v. Territory, 15 Okl. 386, 82 P. 728 (1905)