Sammy Dewain Haas v State Of Oklahoma

F-2001-785

Filed: Jun. 5, 2002

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Sammy Dewain Haas appealed his conviction for Operating a Motor Vehicle While Under the Influence of Alcohol and Driving Under Suspension. The conviction and sentence were ten years in prison and a $10,000 fine for one count, and one year in jail and a $500 fine for the other count. The sentences were to run at the same time, not one after the other. Judge Lile disagreed with the overall conclusion.

Decision

The Judgment and Sentence of the trial court is AFFIRMED. However, the trial court is directed to modify the Court's Minute to show that Appellant's sentences were ordered to run concurrently.

Issues

• Was there fundamental error when the prosecutor urged the jury to sentence Appellant based on the possibility of what he might do in the future?
• Did the trial court err by not instructing the jury on the lesser included offense of Driving While Impaired?
• Did the trial court err in refusing to give an instruction on circumstantial evidence?
• Should the trial court's minute be modified to accurately state the sentence imposed?

Findings

• the court erred but relief is not warranted
• evidence was not sufficient to support an instruction on the lesser included offense
• error was harmless beyond a reasonable doubt
• the trial court's minute should be modified to reflect concurrent sentences

F-2001-785

Jun. 5, 2002

Sammy Dewain Haas

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JAMES W. PATTERSON STRUBHAR, JUDGE:

Appellant, Sammy Dewain Haas, was convicted in the District Court of Beckham County of Operating a Motor Vehicle While Under the Influence of Alcohol, Second and Subsequent (Count I) and Driving Under Suspension (Count II), in Case No. CF-2000-266. The jury trial was held before the Honorable Charles L. Goodwin. The jury assessed punishment at ten years and a $10,000 fine on Count I and one year and a $500 fine on Count II. The trial court sentenced Appellant accordingly, ordering the sentences to run concurrently. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm. In reaching our decision, we considered the following propositions of error and determined neither reversal nor modification to be required under the law and the evidence:

I. Fundamental error occurred when the prosecutor urged the jury to sentence Appellant based on the possibility of what he might do in the future, rather than based on the act he allegedly committed.

II. The trial court erred by not instructing the jury on the lesser included offense of Driving While Impaired.

III. The trial court erred in refusing to give an instruction on circumstantial evidence.

IV. The trial court’s minute should be modified to accurately state the sentence imposed.

As to Appellant’s first proposition, we find that while this Court has condemned statements which make reference to the probability of an appellant committing future crimes, see McWilliams v. State, 743 P.2d 666, 669 (Okl.Cr.1987), the comments at issue in the present case did not rise to the level of plain error and accordingly, relief is not warranted. See Wackerly v. State, 12 P.3d 1, 12 (Okl.Cr.2000). Appellant’s second proposition warrants no relief as the evidence did not reasonably tend to support an instruction on the lesser included offense of driving while impaired. See Penny v. State, 765 P.2d 797, 800 (Okl.Cr. 1988). We also find with regard to Proposition III, that the evidence presented at trial was both direct and circumstantial and an instruction on circumstantial evidence should have been given upon request. However, because the trial court did give general instructions defining circumstantial evidence and informing the jury of the weight to be given both direct and circumstantial evidence, any error in failing to give the requested instruction was harmless beyond a reasonable doubt. See Lopez v. State, 718 P.2d 369, 372 (Okl.Cr.1986). Finally, we direct the trial court to modify the Court’s Minute to show that Appellant’s sentences were ordered to run concurrently.

DECISION

The Judgment and Sentence of the trial court is AFFIRMED. However, the trial court is directed to modify the Court’s Minute to show that Appellant’s sentences were ordered to run concurrently.

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Footnotes:

1. See McWilliams v. State, 743 P.2d 666, 669 (Okl.Cr.1987).
2. See Wackerly v. State, 12 P.3d 1, 12 (Okl.Cr.2000).
3. See Penny v. State, 765 P.2d 797, 800 (Okl.Cr. 1988).
4. See Lopez v. State, 718 P.2d 369, 372 (Okl.Cr.1986).

Oklahoma Statutes citations:

No Oklahoma statutes found.

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:

• McWilliams v. State, 743 P.2d 666, 669 (Okl.Cr.1987)
• Wackerly v. State, 12 P.3d 1, 12 (Okl.Cr.2000)
• Penny v. State, 765 P.2d 797, 800 (Okl.Cr. 1988)
• Lopez v. State, 718 P.2d 369, 372 (Okl.Cr.1986)