Kenneth Glenn Thompson v State Of Oklahoma

F-2002-202

Filed: Feb. 28, 2003

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Kenneth Glenn Thompson appealed his conviction for Robbery with a Weapon, Conspiracy, and Assault and Battery with a Dangerous Weapon. His conviction and sentence included ten years for robbery and two years each for conspiracy and assault, with all sentences running consecutively. Judge Chapel dissented, arguing that there wasn’t enough evidence to support the conspiracy charge. The court agreed that the robbery and conspiracy convictions should stand, but they reversed the assault conviction due to it being for the same action as the robbery.

Decision

The Judgments and Sentences in Counts I and II are AFFIRMED, the Judgment and Sentence in Count III is REVERSED with instructions to DISMISS.

Issues

• Was the evidence sufficient to support the crime of Robbery with a Weapon?
• Was the evidence sufficient to support a conviction for Conspiracy?
• Should Appellant have been punished twice for the same offense?
• Did an evidentiary harpoon and subsequent prosecutorial misconduct deprive Appellant of a fair trial?
• Did cumulative error deprive Appellant of a fair trial?

Findings

• The evidence was sufficient to support the conviction for Robbery with a Weapon.
• The evidence was sufficient to support the conviction for Conspiracy.
• The court erred in convictions for both Robbery with a Weapon and Assault and Battery with a Dangerous Weapon as they arose out of one act, thus the conviction for Assault and Battery with a Dangerous Weapon was reversed with instructions to dismiss.
• The court's admonition cured any error regarding comments about Officer Aguilera's concerns.
• Appellant was not denied a fair trial by cumulative error.

F-2002-202

Feb. 28, 2003

Kenneth Glenn Thompson

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Kenneth Glenn Thompson was tried conjointly with co-defendant Kristy Ladell Thompson in the District Court of Stephens County, Case No. CF-2001-292 and found guilty of Robbery with a Weapon (Count I) (21 O.S. 2001, § 801), Conspiracy (Count II) (21 O.S. 2001, § 421) and Assault and Battery with a Dangerous Weapon (Count III) (21 O.S. 2001, § 645), After Former Conviction of a Felony. The jury recommended as punishment imprisonment for ten (10) years in Count I, and two (2) years in each of Counts II and III. The trial court sentenced accordingly, ordering the sentences in Count II to run consecutive to the sentence in Count I, and Count III to run consecutive to Counts I and II. From these judgments and sentences, Appellant appeals. 1

In support of his appeal, Appellant raises the following propositions of error:

I. The evidence was insufficient to support the crime of Robbery with a Weapon.

II. The evidence was insufficient to support a conviction for Conspiracy.

III. Appellant should not have been punished twice for the same offense.

IV. An evidentiary harpoon and subsequent prosecutorial misconduct deprived Appellant of a fair trial.

V. Cumulative error deprived Appellant of a fair trial.

After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification is warranted under the law and the evidence, as to Counts I and II. Count III is reversed with instructions to dismiss as adjudicated in Proposition III.

In Proposition I, we find the circumstantial evidence sufficient to support Appellant’s conviction for Robbery with a Weapon. See Mitchell v. State, 884 P.2d 1186, 1199 (Okl.Cr.1994). In Proposition II, we find sufficient circumstantial evidence was presented upon which to base a finding that an agreement did exist thereby supporting a conviction for conspiracy. See Mayes v. State, 887 P.2d 1288, 1313 (Okl.Cr.1994); State v. Davis, 823 P.2d 367, 370 (Okl.Cr.1991). 2

In this writer’s opinion, the test used for determining the sufficiency of the evidence in cases comprised of direct evidence or direct and circumstantial evidence, as set forth in Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985) should also be applied in cases comprised entirely of circumstantial evidence. White U. State, 900 P.2d 982, 994 Okl.Cr.1995)(Lumpkin specially concurring). 2

In Proposition III, we find Appellant’s convictions for both Robbery with a Weapon and Assault and Battery with a Weapon a violation of 22 O.S. 2001, § 11 as the two crimes arose out of one act. See Davis v. State, 993 P.2d 124, 126-27 (Okl.Cr. 1999). Therefore, Appellant’s conviction in Count III, Assault and Battery with a Weapon, is reversed with instructions to dismiss.

In Proposition IV, we find the court’s admonition to the jury to disregard any comments regarding Officer Aguilera’s concerns about Appellants once they left the Marlow City Jail cured any error as that information, together with testimony concerning Appellant’s alias, did not determine the verdict. See Patton v. State, 973 P.2d 270, 292-293 (Okl.Cr.1998).

In Proposition V, we find Appellant was not denied a fair trial by cumulative error. See Conover v. State, 933 P.2d 904 (Okl.Cr.1997); Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989).

DECISION

The Judgments and Sentences in Counts I and II are AFFIRMED, the Judgment and Sentence in Count III is REVERSED with instructions to DISMISS.

AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY THE HONORABLE GEORGE W. LINDLEY, DISTRICT JUDGE
APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
JAMES W. BERRY
100 N. BROADWAY, STE. 2850
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

LISBETH L. MCCARTY
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
COUNSEL FOR APPELLANT

ROBERT CHRISTIAN
DISTRICT ATTORNEY

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

JASON HICKS
DIANE SLAYTON
ASSISTANT DISTRICT ATTORNEY
STEPHENS COUNTY COURTHOUSE
DUNCAN, OK 73533
COUNSEL FOR THE STATE

COUNSEL FOR APPELLEE

OPINION BY: LUMPKIN, J.

JOHNSON, P. J.: CONCUR
LILE, V.P.J.: CONCUR
CHAPEL, J.: CONCUR IN PART/ DISSENT IN PART
STRUBHAR, J.: CONCUR

CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART: I concur in affirming the conviction and sentence for Robbery with a Weapon. I also concur in reversing and dismissing the Assault and Battery Count. However, I would also reverse and dismiss the Conspiracy Count, as there was insufficient evidence to support it.

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Footnotes:

1. 21 O.S. 2001, § 801
2. 21 O.S. 2001, § 421
3. 21 O.S. 2001, § 645
4. 22 O.S. 2001, § 11
5. Mitchell v. State, 884 P.2d 1186, 1199 (Okl.Cr.1994)
6. Mayes v. State, 887 P.2d 1288, 1313 (Okl.Cr.1994)
7. State v. Davis, 823 P.2d 367, 370 (Okl.Cr.1991)
8. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
9. White U. State, 900 P.2d 982, 994 (Okl.Cr.1995)(Lumpkin specially concurring)
10. Davis v. State, 993 P.2d 124, 126-27 (Okl.Cr. 1999)
11. Patton v. State, 973 P.2d 270, 292-293 (Okl.Cr.1998)
12. Conover v. State, 933 P.2d 904 (Okl.Cr.1997)
13. Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 - Robbery with a Weapon
• Okla. Stat. tit. 21 § 421 - Conspiracy
• Okla. Stat. tit. 21 § 645 - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 22 § 11 - Conviction for Multiple Crimes

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:

• Mitchell v. State, 884 P.2d 1186, 1199 (Okl.Cr.1994)
• Mayes v. State, 887 P.2d 1288, 1313 (Okl.Cr.1994)
• State v. Davis, 823 P.2d 367, 370 (Okl.Cr.1991)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
• White v. State, 900 P.2d 982, 994 (Okl.Cr.1995)
• Davis v. State, 993 P.2d 124, 126-27 (Okl.Cr. 1999)
• Patton v. State, 973 P.2d 270, 292-293 (Okl.Cr.1998)
• Conover v. State, 933 P.2d 904 (Okl.Cr.1997)
• Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989)