Robert Anthony Lamar v State Of Oklahoma

F-2000-1262

Filed: Dec. 13, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Robert Anthony Lamar appealed his conviction for Unauthorized Use of a Motor Vehicle. Conviction and sentence were reversed and a new trial was ordered. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the trial court is REVERSED and REMANDED for a new trial.

Issues

• Was the trial court's sua sponte instruction on the lesser offense of unauthorized use of a motor vehicle correct despite the appellant's objection?
• Did the state provide sufficient evidence to prove that the appellant acted with the intent to deprive the owner of the vehicle?
• Did the trial court's refusal to give the requested instruction on joyriding and to include voluntary intoxication as a defense deny the appellant due process and a fair trial?

Findings

• the trial court erred in refusing to give the requested instruction on the lesser included offense of joyriding
• the evidence was sufficient to support the lesser included offense of joyriding
• the conviction was reversed and remanded for a new trial

F-2000-1262

Dec. 13, 2001

Robert Anthony Lamar

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Robert Anthony Lamar, Appellant, was tried by jury and convicted of Unauthorized Use of a Motor Vehicle, After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CF-00-599. In accord with the jury’s recommendation, District Judge Virgil C. Black sentenced Appellant to twenty-five years imprisonment. From this judgment and sentence, he appeals.

Appellant raises three propositions of error for review:

I. Appellant’s conviction must be dismissed because the trial court sua sponte, without a request or objection by the state, instructed on the lesser offense of unauthorized use of a motor vehicle over Appellant’s objection;

II. The state presented insufficient evidence to establish beyond a reasonable doubt that Mr. Lamar acted with the intent to deprive the owner, temporarily or otherwise, of the vehicle or its possession; and

III. The trial court’s refusal to give Appellant’s requested instruction on the lesser related offense of joyriding, its failure to include voluntary intoxication as a defense to unauthorized use of a motor vehicle, and prosecutorial misconduct denied Appellant due process and a fair trial.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we find reversal is warranted based on the claim raised in Proposition III(A) for the reasons set forth below.

In Proposition III(A), Appellant claims he was denied due process of law when the trial court refused to give his requested instruction on the lesser included offense of joyriding that was supported by the evidence. All lesser included instructions that are supported by the record should be given unless waived. Shrum v. State, 991 P.2d 1032, 1036 Dkl.Cr.1999). Joyriding constitutes a lesser included offense of larceny and unauthorized use of a motor vehicle under the evidence test adopted in Shrum, as well as the statutory elements test utilized by this Court in the past.

Larceny, unauthorized use of a motor vehicle and joyriding all require the defendant to take/drive a vehicle, without the consent of the owner, with varying intents – with the intent to permanently deprive the owner (larceny), with the intent to deprive the owner, temporarily or otherwise, of the vehicle (unauthorized use of a motor vehicle) or for joyriding or any other purpose (joyriding).

At trial, Appellant testified he took the U-Haul truck to see what it felt like because I never drove a diesel before and I was going to take it back when I got through with it. Appellant testified he did not intend to keep the truck, sell the truck, repaint it or do anything else with it. When asked if he just took the truck out for a spin and intended to return it, Appellant said, yes, sir. Appellant also testified he was in search of a pay phone to call his sister. While this testimony supported the lesser included offense of unauthorized use of a motor vehicle, it also supported the lesser included offense of joyriding. By its verdict the jury rejected the State’s theory that Appellant intended to permanently deprive the owners of the truck. The intent or purpose with which Appellant acted was a question for the jury that Appellant put at issue by testifying. Consequently, joyriding was not only a requested lesser included offense that was supported by the evidence, it was also the defense theory of the case and as such should have been given.

Accordingly, this case must be reversed and remanded for new trial.

DECISION

The Judgment and Sentence of the trial court is REVERSED and REMANDED for a new trial.

APPEARANCES AT TRIAL

BERT RICHARD WENDELL B. SUTTON ASST. PUBLIC DEFENDER ASST. PUBLIC DEFENDER OF OKLHOMA COUNTY OF OKLAHOMA COUNTY

ATTORNEY FOR APPELLANT

GREG MASHBURN W.A. DREW EDMONDSON ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA

ATTORNEY FOR THE STATE

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Footnotes:

1. See Shrum, 991 P.2d at 1035-36.
2. Graham v. State, 2001 OK CR 18, IT 3, P.3d, 72 OBJ 1996.
3. Shrum v. State, 991 P.2d 1032, 1036 Dkl.Cr.1999.
4. Kinsey v. State, 798 P.2d 630, 633 (Okl.Cr.1990).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1701.1 - Unauthorized Use of a Motor Vehicle
• Okla. Stat. tit. 21 § 701.8 - Larceny
• Okla. Stat. tit. 21 § 764 - Joyriding
• Okla. Stat. tit. 47 § 11-801 - Traffic Code

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:

• Shrum v. State, 991 P.2d 1032 (Okl.Cr. 1999)
• Graham v. State, 2001 OK CR 18
• Kinsey v. State, 798 P.2d 630 (Okl.Cr. 1990)