El Alami El Mansouri v The State of Oklahoma

F 2003-364

Filed: May 11, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

El Alami El Mansouri appealed his conviction for multiple crimes, including unauthorized use of a motor vehicle and robbery. His conviction included a total of ten counts, and he received a long prison sentence totaling over a hundred years. However, two of the counts, related to kidnapping, were reversed and dismissed by the court. Judge Lumpkin disagreed with the dismissal of those counts.

Decision

The Judgment and Sentence of the trial court is REVERSED and REMANDED to the Trial Court with instructions to DISMISS counts seven and twelve of the Judgment and Sentence. The remaining counts of the Judgment and Sentence are AFFIRMED.

Issues

• Was Appellant's right to be free from double jeopardy violated?
• Was the evidence sufficient to support the charges of unlawful use of a motor vehicle?
• Did the use of impermissible hearsay statements deprive Appellant of his right to confront the witness against him, as well as his right to due process of law and a fair trial?

Findings

• The court erred by not dismissing counts seven and twelve due to double jeopardy violations.
• The evidence was sufficient to support the charges of unauthorized use of a motor vehicle.
• The use of hearsay statements did violate Appellant's right to confrontation, but this error was deemed harmless.

F 2003-364

May 11, 2004

El Alami El Mansouri

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE:

Appellant, El Alami El Mansouri, was convicted at jury trial of ten counts of a thirteen-count information filed in the District Court of Oklahoma County Case No. CF-2001-6188. Jury trial was held before the Honorable Susan P. Caswell, District Judge. In accordance with the jury verdict, Appellant was sentenced on the following convictions, all running consecutively:

Count 2: Unauthorized use of a Motor Vehicle – five (5) years
Count 3: Unauthorized use of a Motor Vehicle – five (5) years
Count 5: Attempted Robbery – forty (40) years
Count 6: First Degree Burglary – twenty (20) years
Count 7: Pointing a Firearm at Another – ten (10) years
Count 9: Pointing a Firearm at Another – ten (10) years
Count 10: Assault and Battery with a Dangerous Weapon – ten (10) years
Count 11: Kidnapping – fifteen (15) years
Count 12: Kidnapping – fifteen (15) years
Count 13: Conspiracy to Commit Robbery – ten (10) years

1 Appellant was named in twelve of the thirteen counts (counts two through thirteen). Count eight was dismissed at trial. Appellant was acquitted on count four. From these judgments and sentences, Appellant has perfected this appeal.

Appellant raises the following propositions of error in support of his appeal:

1. Appellant’s right to be free from double jeopardy was violated.
2. The evidence was insufficient to support the charges of unlawful use of a motor vehicle.
3. The use of impermissible hearsay statements deprived Appellant of his right to confront the witness against him, as well as, his right to due process of law and 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 convictions should be AFFIRMED IN PART and REVERSED IN PART.

In proposition one, we find that the convictions for both attempted robbery and kidnapping committed against victim Najaya Khalil constitute a violation of 21 O.S.2001, § 11, and the convictions for both kidnapping and pointing a firearm against Samir Khalil constitute a violation of 21 O.S.2001, § 11. Davis U. State, 1999 OK CR 48, 993 P.2d 124, 126-27. Therefore, counts seven and twelve must be dismissed. As Appellant was acquitted of the Robbery against Samir Khalil, none of the convictions can merge with that offense. Further, none of the remaining counts constitutes double jeopardy or double punishment. Id.

2 In proposition two, we find that there was sufficient evidence presented by the State to show that Appellant was guilty of the two counts of unauthorized use of a motor vehicle under a conspiracy theory. State v. Davis, 1991 OK CR 123, 823 P.2d 367, 370.

In proposition three, we find that Johnson’s initial statement I can’t believe what we just did was an excited utterance. Further, this statement did not implicate Appellant in any way. Johnson’s statement about he and Appellant committing a robbery and needing to get items to pawn in order to help Appellant did not constitute excited utterances as they were made after a time, which Johnson had time to reflect on the situation. Williams v. State, 1996 OK CR 16, 915 P.2d 371, 378-79. These statements did violate Appellant’s right to confrontation, but do not require reversal in this case, as the remaining evidence was overwhelming, thus, the error constituted harmless error. Simpson V. State, 1994 OK CR 40, 876 P.2d 690, 698.

DECISION

The Judgment and Sentence of the trial court is REVERSED and REMANDED to the Trial Court with instructions to DISMISS counts seven and twelve of the Judgment and Sentence. The remaining counts of the Judgment and Sentence are AFFIRMED.

3

APPEARANCES AT TRIAL

BILL SMITH
935 N.W. 6TH STREET
OKLAHOMA CITY, OK 73106
ATTORNEY FOR DEFENDANT

ANGELA WRIGHT
W. A. DREW EDMONDSON
CASSANDRA WILLIAMS
OKLAHOMA ATTORNEY GENERAL
ASSISTANT DISTRICT ATTORNEYS

KEELEY L. HARRIS
320 ROBERT S. KERR AVE.
SUITE 505
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR THE STATE

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

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Footnotes:

1. 21 O.S.2001, § 11
2. 21 O.S.2001, § 11
3. Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126-27
4. State v. Davis, 1991 OK CR 123, 823 P.2d 367, 370
5. Williams v. State, 1996 OK CR 16, 915 P.2d 371, 378-79
6. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 698

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 11 (2001) - Violations of Double Jeopardy
• Okla. Stat. tit. 21 § 701.8 (2011) - Attempted Robbery
• Okla. Stat. tit. 21 § 1431 (2001) - Unauthorized Use of a Motor Vehicle
• Okla. Stat. tit. 21 § 1435 (2011) - First Degree Burglary
• Okla. Stat. tit. 21 § 1277 (2011) - Pointing a Firearm at Another
• Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 741 (2011) - Kidnapping
• Okla. Stat. tit. 21 § 421 (2011) - Conspiracy to Commit Robbery

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, 1999 OK CR 48, 993 P.2d 124, 126-27.
• State v. Davis, 1991 OK CR 123, 823 P.2d 367, 370.
• Williams v. State, 1996 OK CR 16, 915 P.2d 371, 378-79.
• Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 698.