Claude Thomas Gifford v The State Of Oklahoma

F-2002-87

Filed: Nov. 12, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Claude Thomas Gifford appealed his conviction for robbery and assault. His conviction and sentence were modified, with the robbery being reversed, and he received a total of 48 years for the assault. Judge Johnson disagreed with part of the ruling.

Decision

Appellant's conviction and sentence on Count I is hereby REVERSED and DISMISSED. Appellant's conviction and forty-eight (48) year sentence on Count II is hereby AFFIRMED, but the order suspending the final thirty-eight (38) years of that sentence is hereby VACATED. Appellant's conviction and sentence on Count III is hereby AFFIRMED, with the sentences to be served consecutively.

Issues

• Was there double punishment by the convictions for Robbery in the First Degree and Assault and Battery with a Dangerous Weapon against the same victim?
• Should the conviction for Robbery in the First Degree be reversed or modified due to misleading jury instructions and a verdict form?
• Should the conviction for Assault and Battery with a Dangerous Weapon be reversed because of improper jury instructions on the essential element of a "dangerous weapon"?
• Was the admission of statements made by absent witnesses a violation of the right to confront accusers, resulting in prejudice to the defense?
• Should the sentences be modified due to insufficient proof of out-of-state prior convictions for enhancement?
• Should the incarceration fees assessed against the appellant be vacated and remanded for a hearing on his ability to pay?
• Should the court costs be modified to exempt the indigent from paying for transcript preparation?

Findings

• The court erred with respect to double punishment due to simultaneous convictions for Robbery in the First Degree and Assault and Battery with a Dangerous Weapon.
• Proposition two is moot as a result of the resolution of proposition one.
• The court found no error in the jury instructions regarding the Assault and Battery with a Dangerous Weapon charge.
• The trial court did not abuse its discretion in admitting evidence related to absent witnesses, and any error was deemed harmless.
• Modification of sentences based on the State's proof of prior convictions was not warranted.
• Proposition six is moot since incarceration fees were ordered suspended in full.
• The district court did not err in assessing costs related to transcript preparation for the Appellant.

F-2002-87

Nov. 12, 2003

Claude Thomas Gifford

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Claude Thomas Gifford, was tried by jury in the District Court of Cleveland County, Case Number CF-2000-797, and convicted of the following crimes: Robbery in the First Degree (Count I), in violation of 21 O.S.1991, § 797, after two or more prior convictions; Assault and Battery with a Dangerous Weapon (Count II), in violation of 21 O.S.1991, § 645, after two or more prior convictions, and Assault and Battery, in violation of 21 O.S.1991, § 645. The jury set punishment at thirty-eight (38) years imprisonment on Count I, forty-eight (48) years imprisonment on Count II, and ninety (90) days in the county jail on Count III. The trial judge sentenced Appellant in accordance with the jury’s determination. He ordered all sentences to be served consecutively, but suspended the last thirty-eight (38) years of the sentence on Count II.

Appellant now appeals his convictions and sentences. Appellant raises the following propositions of error in this appeal:

I. Appellant has suffered double punishment by his conviction and sentencing on Count I – Robbery in the First Degree (by force and fear), and Count II – Assault and Battery with a Dangerous Weapon, both allegedly committed simultaneously against a single victim;

II. Appellant’s conviction on Count I-Robbery in the First Degree-should be reversed or modified, because it was based upon a misleading jury instruction and a misleading verdict form that amounted to a directed verdict of robbery in the first degree;

III. Appellant’s conviction on Count II-Assault and Battery with a Dangerous Weapon-should be reversed because the trial court failed to properly instruct the jury on the essential element dangerous weapon and the erroneous instruction implied an intent to kill, which is not an element of the charge against Appellant;

IV. Improper admission of statements made by absent witnesses denied Appellant his right to confront his accusers and was highly prejudicial to his defense;

V. Appellant’s sentences should be modified, based upon the State’s failure to provide sufficient proof of out-of-state prior convictions to be used for enhancement;

VI. Incarceration fees assessed against Appellant should be vacated and the matter remanded to the district court for a hearing and specific findings, as required by statute; and

VII. Appellant’s court costs should be modified to relieve the indigent of payment for transcript preparation.

The testimony of Detective Phil Long, who sat through the trial as the case agent, completely exceeded the proper scope of expert testimony as it was not supported by sufficient facts. After thoroughly considering these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we reverse Appellant’s conviction on Count I and modify his sentence as set forth below.

With respect to proposition one, we find Appellant’s simultaneous convictions for Robbery in the First Degree by force and fear against Shaun Sullivan (Count I) and Assault and Battery with a Dangerous Weapon against Shaun Sullivan (Count II) violate the statutory prohibition against double punishment, under the facts of this case. We find these were not separate and distinct crimes.

Proposition two is moot, as per our resolution of proposition one and the relief ordered below. With respect to proposition three, we find the instructions, taken as a whole, fairly and accurately state the applicable law, and there was no plain error. With respect to proposition four, we find the trial court did not abuse its discretion in admitting the evidence, and any possible error was harmless beyond a reasonable doubt. With respect to proposition five, we find modification is not warranted. With respect to proposition six, we find the same is moot, as the amended judgment and sentence ordered incarceration fees suspended in full. With respect to proposition seven, we find the district court did not err in assessing the cost of preparing the transcript to be paid upon his release, along with other costs reasonably related to the prosecution, following a Rule VIII hearing and determination of his ability to pay, at that time.

DECISION
Appellant’s conviction and sentence on Count I is hereby REVERSED and DISMISSED. Appellant’s conviction and forty-eight (48) year sentence on Count II is hereby AFFIRMED, but the order suspending the final thirty-eight (38) years of that sentence is hereby VACATED. Appellant’s conviction and sentence on Count III is hereby AFFIRMED, with the sentences to be served consecutively.

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Footnotes:

1. 22 O.S.Supp.1999, § 11.
2. 12 O.S.2001, §§ 2804(A)(5) & 2804(B)(5).
3. 20 O.S.2001, § 106.4.
4. Okla. Stat. tit. 21 § 797.
5. Okla. Stat. tit. 21 § 645.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 797 - Robbery in the First Degree
• Okla. Stat. tit. 21 § 645 - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 22 § 11 - Statutory Prohibition against Double Punishment
• Okla. Stat. tit. 12 § 2804(A)(5) - Hearsay Exceptions; Availability of Declarant Immaterial
• Okla. Stat. tit. 12 § 2804(B)(5) - Hearsay Exceptions; Availability of Declarant Immaterial
• Okla. Stat. tit. 20 § 106.4 - Costs and Fees for Indigent Defendants

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:

• Davis v. State, 993 P.2d 124, 126 Okl.Cr.1999
• Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995)
• Freeman v. State, 876 P.2d 283, 289 (Okl.Cr.1994)
• Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994)
• Simpson v. State, 876 P.2d at 701
• McIntosh v. State, 810 P.2d 373, 376 (Okl.Cr.1991)
• Cooper v. State, 810 P.2d 1303-06 (Okl.Cr.1991)