Sidney Wayne Clark v The State Of Oklahoma

F-2000-282

Filed: Jan. 26, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Sidney Wayne Clark appealed his conviction for Larceny of Merchandise from a Retailer and Placing Bodily Fluids on a Government Employee. The court modified his conviction and sentence to one year in the county jail for the first charge, and one year in prison for the second charge. Judge Strubhar dissented.

Decision

Appellant's conviction under Count I is hereby MODIFIED to a conviction for Larceny of Merchandise from a Retailer (with no former felony convictions), in violation of 21 O.S.Supp. 1999, § 1731(4). Appellant's sentence under Count I is hereby MODIFIED to one (1) year in the County Jail. Appellant's sentence under Count II -- Placing Bodily Fluids on a Government Employee - is hereby MODIFIED to one (1) year imprisonment. The sentences are hereby ordered to run consecutively.

Issues

• Was the trial court's jury instruction on the sentencing range for Count I erroneous, resulting in a sentence in excess of the statutory maximum?
• Was the trial court's jury instruction on the sentencing range for Count II erroneous, prejudicing the appellant?
• Did the State fail to prove beyond a reasonable doubt that the appellant had prior felony convictions in the State of Kansas?

Findings

• the trial court's erroneous jury instruction on the sentencing range for Count I is moot
• the trial court's erroneous jury instruction on the sentencing range for Count II warrants modification of Appellant's sentence on Count II to one (1) year imprisonment
• the State failed to prove beyond a reasonable doubt that Appellant had prior felony convictions, necessitating modification of Appellant's sentence under Count I to one (1) year in the County Jail

F-2000-282

Jan. 26, 2001

Sidney Wayne Clark

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant, Sidney Wayne Clark, was tried by jury in the District Court of Garfield County, Case No. CF-99-382, and convicted of Larceny of Merchandise from a Retailer (Count I), after former conviction of two felonies, in violation of 21 O.S.Supp. 1999, § 1731, and Placing Bodily Fluids on a Government Employee (Count II), in violation of 21 O.S.Supp. 1999, § 650.9. The jury recommended a sentence of twenty (20) years imprisonment on Count I and two (2) years imprisonment on Count II. The trial judge sentenced Appellant accordingly and ordered the sentences to be served concurrently. Appellant now appeals his conviction under Count I and his sentences.

Appellant raises the following propositions of error in this appeal:

I. Appellant was prejudiced by the trial court’s erroneous jury instruction on the sentencing range for Count I, which resulted in a sentence in excess of the statutory maximum;

II. Appellant was prejudiced by the trial court’s erroneous jury instruction on the sentencing range for Count II; and

III. The State failed to prove beyond a reasonable doubt that Appellant had prior felony convictions in the State of Kansas.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we have determined the applicable law requires Appellant’s sentences to be modified as set forth below.

With respect to proposition one, we find the issues raised are now moot, due to the relief we have ordered with respect to propositions two and three.

With respect to proposition two, we find the jury was erroneously instructed as to the applicable range of punishment for a conviction under Count II. The jury was instructed that the crime was punishable by imprisonment in the State penitentiary for a term of 2 years in the State penitentiary and/or a fine of $0 to $1,000. (emphasis added.) However, the correct range of punishment was a fine not exceeding One Thousand Dollars ($1,000.00), or by imprisonment in the State Penitentiary not exceeding two (2) years, or by both such fine and imprisonment. (emphasis added.) 21 O.S.Supp. 1999, § 650.9; 21 O.S.Supp. 1999, § 9.

The jury had several sentencing options: finding Appellant guilty on Count II after one or two previous convictions; imposing a prison sentence and fine; imposing a prison sentence only; or imposing a fine only. The jury chose the fourth most lenient of these five options, but one which sent Appellant to prison. Under the facts of this case, we find the evidence warrants modification of Appellant’s sentence on Count II to one (1) year imprisonment. 22 O.S. 1991, § 1066.

With respect to proposition three, we find the State failed to prove beyond a reasonable doubt that Appellant had prior felony convictions. The State merely introduced two judgments and sentences from Reno County, Kansas, which bore the name Sidney W. Clark. However, the State never introduced any information, beyond the face of these documents, to prove Appellant was the same Sidney W. Clark who committed the Kansas crimes. The judgments and sentences have no birth date, social security number, address, or other identifying information. No testimony was introduced at trial that Appellant formerly lived in Reno County, Kansas or ever visited there. No witness took the stand to say Appellant is the same person who committed the Kansas crimes. The name Sidney W. Clark is not sufficiently unique, standing alone, to prove the former convictions.

Appellant’s sentence, therefore, cannot stand. Cooper v. State, 1991 OK CR 54, I 8, 810 P.2d 1303, 1306; Battenfield v. State, 1991 OK CR 99, II 8-9, 826 P.2d 612, 614; Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04. Under the facts and circumstances of this case, we find the evidence warrants modification of Appellant’s sentence under Count I to the statutory maximum in effect at the time the crime was committed, which is one year in the county jail. 22 O.S.1991, § 1066; 21 O.S.Supp.1999, § 1731 (4).

DECISION

Appellant’s conviction under Count I is hereby MODIFIED to a conviction for Larceny of Merchandise from a Retailer (with no former felony convictions), in violation of 21 O.S.Supp. 1999, § 1731(4). Appellant’s sentence under Count I is hereby MODIFIED to one (1) year in the County Jail. Appellant’s sentence under Count II — Placing Bodily Fluids on a Government Employee – is hereby MODIFIED to one (1) year imprisonment. The sentences are hereby ordered to run consecutively.

Click Here To Download PDF

Footnotes:

1. 21 O.S.Supp. 1999, § 650.9
2. 21 O.S.Supp. 1999, § 9
3. 22 O.S. 1991, § 1066
4. Cooper v. State, 1991 OK CR 54, I 8, 810 P.2d 1303, 1306
5. Battenfield v. State, 1991 OK CR 99, II 8-9, 826 P.2d 612, 614
6. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
7. 22 O.S.1991, § 1066
8. 21 O.S.Supp.1999, § 1731 (4)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1731 (1999) - Larceny of Merchandise from a Retailer
• Okla. Stat. tit. 21 § 650.9 (1999) - Placing Bodily Fluids on a Government Employee
• Okla. Stat. tit. 22 § 1066 (1991) - Sentencing Modifications
• Okla. Stat. tit. 21 § 1731 (4) (1999) - Punishment for Larceny

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:

• Cooper v. State, 1991 OK CR 54, I 8, 810 P.2d 1303, 1306
• Battenfield v. State, 1991 OK CR 99, II 8-9, 826 P.2d 612, 614
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04