Steven Wayne Robertson v The State Of Oklahoma

F-2001-313

Filed: Mar. 13, 2002

Not for publication

Prevailing Party: Steven Wayne Robertson

Summary

Steven Wayne Robertson appealed his conviction for Attempted Burglary in the First Degree and Assault with a Dangerous Weapon. Conviction and sentence were modified to run concurrently. Lile dissented in part.

Decision

The Judgments of the District Court are AFFIRMED. The Sentences of the District Court are MODIFIED to run concurrently.

Issues

• Was there double punishment for a single criminal act that required reversal of one of the convictions?
• Did the trial court err in refusing to instruct on the lesser included offense of malicious injury to property?
• Was Robertson denied a fair trial due to the prosecutor's improprieties?

Findings

• The court erred in rejecting the claim of double punishment for a single criminal act, affirming both convictions.
• The evidence was sufficient to support the convictions for both attempted burglary and assault with a dangerous weapon.
• The trial court did not err in refusing to instruct the jury on the lesser included offense of malicious injury to property.
• The prosecutor's improprieties necessitated modification of Robertson's sentences.
• The sentences were modified to run concurrently.

F-2001-313

Mar. 13, 2002

Steven Wayne Robertson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Steven Wayne Robertson was tried by jury and convicted of Count I, Attempted Burglary in the First Degree in violation 21 O.S.1991, §§ 1431, 1436, and Count II, Assault with a Dangerous Weapon in violation of 21 O.S.Supp.1999, § 645, both after former conviction of a felony, in the District Court of Seminole County, Case No. CF-2000-279. In accordance with the jury’s recommendation the Honorable Lee G. Stilwell sentenced Robertson to two terms of ten (10) years imprisonment. Robertson appeals from these convictions and sentences.

Robertson raises three propositions of error in support of his appeal:
I. Robertson’s double punishment for a single criminal act requires that the conviction for Count I, attempted burglary in the first degree, or Count II, assault with a dangerous weapon, be reversed with INSTRUCTIONS to dismiss;
II. Robertson was prejudiced by the trial court’s refusal to instruct on the lesser related or lesser included offense of malicious injury to property; and
III. Robertson was denied a fair trial by the prosecutor’s improprieties.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find modification of Robertson’s sentences is required. We find in Proposition I that Count II is supported by Imogene Griffith’s testimony she saw Robertson walk up her driveway carrying an axe shortly after hearing a commotion, and was afraid for her safety. As different evidence supports each crime, and the offenses do not share elements, neither the statutory prohibition against multiple punishment nor double jeopardy are violated.² We find in Proposition II that Robertson was not entitled to instructions on malicious injury of property.³ We find in Proposition III that persistent improper comments in argument require modification of Robertson’s sentence,⁴ and direct that his two ten-year sentences be MODIFIED to run concurrently.

Decision

The Judgments of the District Court are AFFIRMED. The Sentences of the District Court are MODIFIED to run concurrently.

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Footnotes:

1. 21 O.S.1991, § 641; Douglas v. State, 1990 OK CR 47, 795 P.2d 1070, 1073, overruled in part on other grounds Kaulaity v. State, 1993 OK CR 40, 859 P.2d 521.
2. 21 O.S.1991, § 11; Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883-84.
3. Childress v. State, 2000 OK CR 10, 1 P.3d 1006, 112-23; Rowland v. State, 1991 OK CR 94, 817 P.2d 263, 266; see also Wooldridge v. State, 1990 OK CR 77, 801 P.2d 729, cert. denied, 518 U.S. 1010, 116 S.Ct. 2533, 135 L.Ed.2d 1056 (1996).
4. Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 315, cert. denied, - U.S. , 122 S.Ct. 371, 151 L.Ed.2d 282; Powell v. State, 2000 OK CR 5, 995 P.2d 510, 536, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258; Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 287, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 (1991) - Attempted Burglary in the First Degree
• Okla. Stat. tit. 21 § 1436 (1991) - Attempted Burglary in the First Degree
• Okla. Stat. tit. 21 § 645 (1999) - Assault with a Dangerous Weapon
• Okla. Stat. tit. 21 § 641 (1991) - Assault and Battery
• Okla. Stat. tit. 21 § 11 (1991) - General Provisions
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing; General Provisions

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:

• Douglas v. State, 1990 OK CR 47, 795 P.2d 1070, 1073
• Kaulaity v. State, 1993 OK CR 40, 859 P.2d 521
• Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883-84
• Childress v. State, 2000 OK CR 10, 1 P.3d 1006, 112-23
• Rowland v. State, 1991 OK CR 94, 817 P.2d 263, 266
• Wooldridge v. State, 1990 OK CR 77, 801 P.2d 729, cert. denied, 518 U.S. 1010, 116 S.Ct. 2533, 135 L.Ed.2d 1056 (1996)
• Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 315, cert. denied, - U.S. , 122 S.Ct. 371, 151 L.Ed.2d 282
• Powell v. State, 2000 OK CR 5, 995 P.2d 510, 536, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258
• Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 287, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503