Anthony Jerome Johnson v The State Of Oklahoma

F-2004-1226

Filed: May 1, 2006

Not for publication

Prevailing Party: The State of Oklahoma

Summary

# Anthony Jerome Johnson appealed his conviction for robbery with a firearm, eluding an officer, and obstructing an officer. Conviction and sentence: 4 years imprisonment for eluding, a $500 fine for obstructing an officer, and 15 years imprisonment for robbery with a firearm. Judge Lumpkin dissented.

Decision

The Judgments and Sentences of the District Court on Counts A and C are AFFIRMED. The Judgment and Sentence on Count B, misdemeanor Obstructing an Officer, is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of the federal double jeopardy clause and Oklahoma statutory prohibition against double punishment for Johnson's convictions for eluding an officer and obstructing an officer?
• Did insufficient evidence support Johnson's conviction for felony eluding an officer?
• Did insufficient evidence support Johnson's conviction for robbery with a firearm?
• Was modification of Johnson's fifteen-year sentence warranted due to inconsistencies in the victim's testimony?

Findings

• the court erred in affirming Johnson's convictions for eluding an officer and robbery with a firearm
• the court reversed the conviction for obstructing an officer with instructions to dismiss
• evidence was sufficient to support Johnson's conviction for felony eluding an officer
• evidence was sufficient to support Johnson's conviction for robbery with a firearm
• no modification of the sentence was necessary

F-2004-1226

May 1, 2006

Anthony Jerome Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Anthony Jerome Johnson was tried by jury and convicted of Count A, Felony Eluding an Officer in violation of 21 O.S.2001, § 540A, Count B, Obstructing an Officer in violation of 21 O.S.2001, § 540, and Count C, Robbery with a Firearm in violation of 21 O.S.2001, § 801, in the District Court of Tulsa County, Case No. CF-2002-2535. In accordance with the jury’s recommendation the Honorable Rebecca Brett Nightingale sentenced Johnson to four (4) years imprisonment (Count A); a $500 fine (Count B); and fifteen (15) years imprisonment (Count C). Johnson appeals from these convictions and sentences.

Johnson raises four propositions of error in support of his appeal:

I. Johnson’s convictions for eluding an officer and obstructing an officer violate both the federal double jeopardy clause and the Oklahoma statutory prohibition against double punishment;

II. Insufficient evidence was presented to support Johnson’s conviction for felony eluding an officer. At most, the evidence showed Johnson guilty of misdemeanor eluding as the State presented no evidence to prove beyond a reasonable doubt that any other person was endangered by Johnson’s actions;

III. The State presented insufficient evidence to support Johnson’s conviction for robbery with a firearm; and

IV. In light of the numerous inconsistencies in the victim’s testimony regarding the description of the perpetrator of the robbery, modification of Johnson’s fifteen year sentence is warranted.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that Johnson’s convictions and sentences for eluding an officer and robbery with a firearm should be affirmed. However, his conviction for obstructing an officer must be reversed with instructions to dismiss.

We find in Proposition I that Johnson’s convictions for eluding an officer and obstructing an officer violate the Section 11 statutory prohibition against multiple punishment. That statute provides that an act or omission which is made punishable in different ways by different provisions of this title may be punished under any of such provisions, but in no case can a criminal act or omission be punished under more than one section of law. If the charged crimes arise from one act, the section prohibits prosecution for more than one crime.

Johnson carjacked Hope Morris’s car. He then drove off at a high rate of speed after Officer Wolfe activated the lights and siren on his marked police vehicle in order to make a traffic stop. He ran several stop signs, and other cars were driving on those side streets. After wrecking Morris’s car, Johnson immediately got out and fled on foot from Wolfe and two other officers, running through an apartment complex. He was convicted of eluding an officer for the car chase, and obstructing an officer for the foot chase. The State argues that these are separate crimes which only tangentially relate to one another. The State does not explain how one continuous attempt to flee results in two crimes only tangentially related to one another.

Both the car chase and the foot chase are certainly tangential to the carjacking. However, Johnson does not claim that his convictions for carjacking, eluding and obstructing violate any of the prohibitions against double punishment. He claims that, after the carjacking was accomplished, the rest of the crimes were comprised in the one act of trying to flee. The State argues that the second crime is incidental to the first, and thus completely separate.

The State relies on two categories of cases. First, the State suggests this case is like Gille v. State. Gille is not a Section 11 case. In Gille the defendant was speeding and had no current registration sticker. When stopped for traffic violations he refused to produce a license or step from the car, locked the doors, and cuffed himself to his steering wheel. He was charged with the traffic offenses and resisting arrest, and claimed that the Information should not have charged him with more than one offense. The Court found no error, noting that two or more separate offenses arising from the same criminal act may be charged as separate counts in the same Information.

The State also relies on cases from Oklahoma and Connecticut in which, during the course of the pursuit, the defendant struck another car. In State v. Browne, defendants fled from a burglary. Instead of stopping when ordered to do so by officers during a low-speed chase, they got on a highway and began a high-speed chase which resulted in the death of an officer. Relying on Connecticut law, the Connecticut court found that double jeopardy was not violated because each individual refusal to stop constituted a different crime. There is no analogous Oklahoma law. In fact, the provisions of Section 11 require this Court to make the factual analysis regarding a single criminal act which was unavailable to the Connecticut court.

In Custer v. State, this Court held that Section 11 did not prohibit punishment for running a roadblock, assaulting an officer by running into his car, and resisting arrest. We discuss this case because the State relies on it, but note that it has no precedential value.

First, the defendant ran a roadblock. After that, he ran into a police car. After he was stopped, he fought with officers. The Court held that these were separate incidents, not in the course of a single action. None of these cases are analogous to the facts of this case. After the carjacking, the only action Johnson took was flight. He used the two forms of transportation available to him – car and foot – without a break between the two.

In this case, the two separate crimes (eluding, in a car, and obstructing, on foot) truly arise out of one act and cannot support two charges. This proposition is granted, and Count B, misdemeanor Obstructing an Officer, is reversed with instructions to dismiss.

We find in Proposition II that sufficient evidence supported Johnson’s felony conviction for eluding an officer. We find in Proposition III that sufficient evidence supports Johnson’s conviction for armed robbery. We find in Proposition IV that, as there were no major inconsistencies in the eyewitness testimony supporting the convictions for robbery and eluding, no evidence supported an instruction on misdemeanor eluding, and the sentence for armed robbery is within the statutory range of punishment and supported by the record, no modification is necessary.

Decision

The Judgments and Sentences of the District Court on Counts A and C are AFFIRMED. The Judgment and Sentence on Count B, misdemeanor Obstructing an Officer, is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 11.
2. 21 O.S.2001, § 11.
3. Peacock v. State, 2002 OK CR 21, 46 P.3d 713, 714; Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126; Hale, 888 P.2d at 1029.
4. 1987 OK CR 196, 743 P.2d 654, 657.
5. 854 A.2d 13, 29 (Conn. App. 2004).
6. 1986 OK CR 159, 727 P.2d 973, 975.
7. Spuehler U. State, 1985 OK CR 132, 709 P.2d 202, 203-04.
8. Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984); Dill v. State, 2005 OK CR 20, 122 P.3d 866, 869.
9. Spuehler, 709 P.2d at 203-04.
10. Hale V. State, 1995 OK 7, 888 P.2d 1027.
11. Davis v. State, 1999 OK CR 48, II 9-13, 993 P.2d 124, 126.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 540A (2001) - Felony Eluding an Officer
• Okla. Stat. tit. 21 § 540 (2001) - Obstructing an Officer
• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Firearm
• Okla. Stat. tit. 21 § 11 (2001) - Prohibition Against Double Punishment
• Okla. Stat. tit. 22 § 3.15 (2006) - Mandate Issuance
• Okla. Stat. tit. 21 § 9 (2001) - Continuity of Acts

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:

• Gille v. State, 1987 OK CR 196, 743 P.2d 654, 657.
• State v. Browne, 854 A.2d 13, 29 (Conn. App. 2004).
• Custer U. State, 1986 OK CR 159, 727 P.2d 973, 975.
• Peacock v. State, 2002 OK CR 21, 46 P.3d 713, 714.
• Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126.
• Spuehler U. State, 1985 OK CR 132, 709 P.2d 202, 203-04.
• Dill v. State, 2005 OK CR 20, 122 P.3d 866, 869.
• Hale v. State, 1995 OK 7, 888 P.2d 1027.