Toni Lisa Dixon v The State Of Oklahoma

F 2003-1401

Filed: Sep. 7, 2004

Not for publication

Prevailing Party: Toni Lisa Dixon

Summary

Toni Lisa Dixon appealed her conviction for Driving Under the Influence, Resisting an Officer, and Failure to Stop at a Stop Sign. Conviction and sentence modified for DUI to a first offense, and the sentence was vacated and sent back to the lower court for resentencing. The fine for Resisting an Officer was changed to $500. The conviction for Failure to Stop at a Stop Sign was affirmed. Judge Lumpkin dissented.

Decision

The judgment in count one is hereby MODIFIED to Driving under the Influence, first offense; the sentence is VACATED and REMANDED to the District Court for RESENTENCING. The judgment in count two is AFFIRMED, but the sentence shall be MODIFIED to a fine of $500. The judgment and sentence in count three is AFFIRMED.

Issues

• Was there sufficient evidence of a prior conviction to support a felony DUI conviction?
• Did the jury find sufficient evidence of a prior conviction for DUI?
• Was the fine for resisting an officer improperly stated at $1,000 instead of $500?
• Did the trial court have authority to order anger management classes and an ignition lock installation?
• Did the trial court abuse its discretion by not following the recommendation for a deferred sentence?
• Did the introduction of evidence of other crimes deprive the appellant of a fair trial?

Findings

• The court erred in finding insufficient evidence of a prior conviction, modifying the DUI conviction to first offense.
• The conviction for resisting an officer is affirmed, but the fine is modified to $500.
• The judgment and sentence for failure to stop at a stop sign is affirmed.
• The issues raised regarding the prior conviction, authority to order anger management classes, and deferred sentence are moot due to the modification of the DUI conviction.
• The introduction of evidence regarding other crimes was not prejudicial to the fair trial process.

F 2003-1401

Sep. 7, 2004

Toni Lisa Dixon

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE: Appellant Toni Lisa Dixon was tried by jury and convicted of, count one, Driving while Under the Influence of Alcohol, second offense; count two, resisting an officer; and count three, failure to stop at a stop sign, in McIntosh County District Court Case No. CF-2003-94, before the Honorable Gene F. Mowery, Associate District Judge. Judge Mowery sentenced Appellant to one (1) year and treatment on count one; a fine of $1,000 on count two; and a fine of $132 on count three. Appellant has perfected his appeal to this Court and raises the following propositions of error in support of his appeal:

1. There was insufficient evidence of a prior conviction, therefore Mrs. Dixon’s conviction should be modified to a misdemeanor.
2. The jury did not find Mrs. Dixon had a prior conviction, therefore the DUI conviction should be modified to a misdemeanor; in the alternative the conviction should be reversed because the trial court directed a verdict on the issue of the prior conviction.
3. Because the maximum fine for resisting an officer is $500, Appellant’s fine of $1,000 must be modified.
4. The trial court was without authority to order Appellant to attend anger management classes or to require an ignition lock on her vehicle.
5. The trial court abused its discretion in not following the department of corrections’ recommendation that Mrs. Dixon receive a deferred sentence.
6. Evidence of other crimes deprived Mrs. Dixon of a fair trial.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that Appellant’s conviction in count one should be modified to Driving under the Influence, first offense, the sentence is vacated and remanded to the District Court for resentencing. Appellant’s conviction in count two shall be affirmed, but the sentence should be modified to a fine of $500. Appellant’s conviction and sentence in count three should be affirmed.

In reaching our decision, in proposition one, we find that the State wholly failed to prove that Appellant had a prior conviction for Driving Under the Influence which would be sufficient for a felony conviction pursuant to 47 O.S.Supp.2002, § 11-902(C)(2). Appellant did testify that, I lost my brother and my father to alcoholism. My brother was 38. I lost him in ’92. I drank heavily and I got my first D.W.I. And I went Al-anon and anger management on my own, not court-ordered. I did a year probation. No other evidence was offered by the State to prove the prior conviction for Driving Under the Influence. We find that the State failed to show that Appellant had a prior conviction for Driving Under the Influence pursuant to § 11-902(A), or any law of another state prohibiting the offense provided for in § 11-902(A), or that Appellant had a prior conviction in a municipal criminal court of record for the violation of a municipal ordinance prohibiting the offense provided for in § 11-902(A) within the past ten years. See 47 O.S.Supp.2002, § 11-902(C)(2). The State did not introduce a Judgment and Sentence, nor did the State cross-examine Appellant about her prior conviction in order to elicit sufficient evidence to prove the prior conviction met the requirements of § 11-902(C)(2). Therefore, we order that Appellant’s conviction in count one be modified to Driving Under the Influence, first offense, as provided for in § 11-902(C)(1). This case shall be remanded to the District Court for resentencing on count one.

In proposition three, we find that the punishment provisions of 21 O.S.2001, § 10 (maximum fine of $500), apply to conviction for Resisting an Officer, 21 O.S.2001, § 268. Therefore, the sentence for count two shall be modified to a fine of $500. In proposition six, we find that the cross-examination of Appellant regarding her failure to appear at an earlier trial date was relevant impeachment evidence. See 12 O.S.2001, § 2608(B). We further find that the introduction of the recorded statements of Appellant was relevant, and the relevance was not substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence. See 12 O.S.2001, §§ 2401 & 2403. The issues raised in propositions two, four and five, because we are modifying the conviction in count one, vacating the sentence and remanding for resentencing, are moot.

DECISION

The judgment in count one is hereby MODIFIED to Driving under the Influence, first offense; the sentence is VACATED and REMANDED the District Court for RESENTENCING. The judgment in count two is AFFIRMED, but the sentence shall be MODIFIED to a fine of $500. The judgment and sentence in count three is AFFIRMED.

APPEARANCES AT TRIAL
CINDY M. DAWSON
DAWSON LAW OFFICE, P.C.
112 SELMON ROAD
EUFAULA, OK 74432
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
THOMAS PURCELL
INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

KAREN VOLZ
ASSISTANT DISTRICT ATTORNEY
McINTOSH COUNTY COURTHOUSE
P.O. BOX 127
EUFAULA, OK 74432
ATTORNEY FOR STATE

W.A DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: LILE, V.P.J.
JOHNSON, P.J.: CONCURS
LUMPKIN, J.: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS IN RESULTS

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Footnotes:

1. 47 O.S.Supp.2002, § 11-902(C)(2)
2. 47 O.S.Supp.2002, § 11-902(A)
3. 21 O.S.2001, § 10
4. 21 O.S.2001, § 268
5. 12 O.S.2001, § 2608(B)
6. 12 O.S.2001, §§ 2401 & 2403

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 (2002) - Driving Under the Influence
• Okla. Stat. tit. 21 § 10 (2001) - Punishments
• Okla. Stat. tit. 21 § 268 (2001) - Resisting an Officer
• Okla. Stat. tit. 12 § 2608 (2001) - Impeachment Evidence
• Okla. Stat. tit. 12 § 2401 (2001) - General Rule of Relevant Evidence
• Okla. Stat. tit. 12 § 2403 (2001) - Exclusion of Relevant Evidence on Grounds of Prejudice

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:

No case citations found.