Robert F. Barnes v State Of Oklahoma

F-2000-671

Filed: Jun. 7, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Robert F. Barnes appealed his conviction for Maiming and Assault and Battery with a Dangerous Weapon. Conviction and sentence on Maiming were affirmed, while the conviction and sentence for Assault and Battery were reversed with instructions to dismiss. Judge Lumpkin dissented.

Decision

As to Appellant's first proposition we find the victim in this case was injured as a result of a single act which cannot be punished under more than one statutory provision without violating the 21 O.S.1991, § 11 prohibition against multiple punishment. Accordingly, we reverse Count II, Assault and Battery, with instructions to dismiss. With regard to Appellant's second proposition, we note that instructions on lesser offenses are only required when there is evidence to support the finding of the offense, and under the evidence presented in the present case, the trial court did not abuse its discretion in declining to give, sua sponte, instructions on lesser included offenses to maiming. Taylor v. State, 881 P.2d 755, 758 (Okl. Cr. 1994). Appellant's third proposition warrants no relief as none of the alleged instances of prosecutorial misconduct rose to the level of plain error. See Anderson v. State, 992 P.2d 409, 421 (Okl.Cr.1999). Finally, Appellant did not designate that the restitution order be included in the record on appeal. Thus, we cannot tell from the record before this Court whether Appellant was ordered to pay restitution to Bacon or the medical providers. We also cannot determine whether the amount of restitution ordered compensated the designated recipient for actual loss. In Oklahoma a defendant bears the burden to provide a sufficient record upon which this Court may determine the issue raised. Hill v. State, 898 P.2d 155, 160 (Okl.Cr.1995). Failure to provide a complete record for review waives all but fundamental error. Kinsey v. State, 798 P.2d 630, 632 (Okl.Cr.1990). As we cannot find fundamental error on the record before this Court, relief is not required. Appellant's Judgment and Sentence on Count I is AFFIRMED. However, his Judgment and Sentence on Count II, is REVERSED with instructions to DISMISS.

Issues

• Was there improper imposition of separate punishment for a single criminal episode?
• Did the district court err in failing to instruct jurors on lesser included offenses?
• Did prosecutorial misconduct deprive Appellant of a fair trial?
• Did the district judge abuse his discretion in the ordering of restitution?

Findings

• The court erred in imposing separate punishment for a single criminal episode, requiring reversal of Count II.
• The trial court did not abuse its discretion in declining to give instructions on lesser included offenses as there was insufficient evidence to support them.
• Appellant's Judgment and Sentence on Count I is AFFIRMED.
• Appellant's Judgment and Sentence on Count II is REVERSED with instructions to DISMISS.

F-2000-671

Jun. 7, 2001

Robert F. Barnes

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Appellant, Robert F. Barnes, was charged with Maiming (Count I) and Assault and Battery with a Dangerous Weapon (Count II) in the District Court of Tulsa County, Case No. CF-99-1530. He was tried by a jury before the Honorable Thomas C. Gillert. The jury found Appellant guilty as charged on Count I but convicted him of the lesser offense of Assault and Battery on Count II. They assessed punishment at one year in the county jail and a one thousand dollar fine on Count I and a one thousand dollar fine on Count II. The trial court sentenced Appellant accordingly and ordered restitution in the amount of $115,232.76.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Count I and reverse Count II with instructions to dismiss. In reaching our decision, we considered the following propositions of error and determined this result to be required under the law and the evidence:

I. Separate punishment imposed for a single criminal episode requires reversal.

II. The district court erred in failing to instruct jurors on lesser included offenses.

III. Prosecutorial misconduct deprived Appellant of a fair trial and rendered his conviction unreliable.

IV. The district judge abused his discretion in the ordering of restitution.

DECISION

As to Appellant’s first proposition we find the victim in this case was injured as a result of a single act which cannot be punished under more than one statutory provision without violating the 21 O.S.1991, § 11 prohibition against multiple punishment. Accordingly, we reverse Count II, Assault and Battery, with instructions to dismiss.

With regard to Appellant’s second proposition, we note that instructions on lesser offenses are only required when there is evidence to support the finding of the offense, and under the evidence presented in the present case, the trial court did not abuse its discretion in declining to give, sua sponte, instructions on lesser included offenses to maiming. Taylor v. State, 881 P.2d 755, 758 (Okl. Cr. 1994).

Appellant’s third proposition warrants no relief as none of the alleged instances of prosecutorial misconduct rose to the level of plain error. See Anderson v. State, 992 P.2d 409, 421 (Okl.Cr.1999).

Finally, Appellant did not designate that the restitution order be included in the record on appeal. Thus, we cannot tell from the record before this Court whether Appellant was ordered to pay restitution to Bacon or the medical providers. We also cannot determine whether the amount of restitution ordered compensated the designated recipient for actual loss. In Oklahoma a defendant bears the burden to provide a sufficient record upon which this Court may determine the issue raised. Hill v. State, 898 P.2d 155, 160 (Okl.Cr.1995). Failure to provide a complete record for review waives all but fundamental error. Kinsey v. State, 798 P.2d 630, 632 (Okl.Cr.1990). As we cannot find fundamental error on the record before this Court, relief is not required.

Appellant’s Judgment and Sentence on Count I is AFFIRMED. However, his Judgment and Sentence on Count II is REVERSED with instructions to DISMISS.

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Footnotes:

1. 21 O.S.1991, § 11
2. Taylor v. State, 881 P.2d 755, 758 (Okl. Cr. 1994)
3. Anderson v. State, 992 P.2d 409, 421 (Okl.Cr.1999)
4. Hill v. State, 898 P.2d 155, 160 (Okl.Cr.1995)
5. Kinsey v. State, 798 P.2d 630, 632 (Okl.Cr.1990)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 11 (1991) - Prohibition against multiple punishment
• Okla. Stat. tit. 21 § 701.8 (2011) - Maiming
• Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery with a Dangerous Weapon

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:

• Taylor v. State, 881 P.2d 755, 758 (Okl. Cr. 1994)
• Anderson v. State, 992 P.2d 409, 421 (Okl.Cr.1999)
• Hill v. State, 898 P.2d 155, 160 (Okl.Cr.1995)
• Kinsey v. State, 798 P.2d 630, 632 (Okl.Cr.1990)