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F-2004-332

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Sheila Ann Sutton v The State Of Oklahoma

F-2004-332

Filed: Aug. 11, 2005

Not for publication

Prevailing Party: Sheila Ann Sutton

Summary

Sheila Ann Sutton appealed her conviction for Grand Larceny and Knowingly Concealing Stolen Property. The court modified her conviction to Petit Larceny and her sentence was changed to two years in prison. Judge Lumpkin dissented regarding the sentence and also the reversal of the second count.

Decision

The Judgment in Count I is MODIFIED to PETIT LARCENY. The Sentence in Count I is MODIFIED to TWO (2) years imprisonment. The Judgment and Sentence in Count II is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeal, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there sufficient evidence to prove Sutton knowingly concealed stolen property?
  • Should the court have sustained the demurrer to grand larceny since only petit larceny was proved?
  • Was Sutton improperly tried for "Grand Larceny" instead of the more specific crime of "Larceny of Merchandise from a Retailer"?
  • Did the court err in ruling that testimony regarding a prior inconsistent statement by the State's key witness was inadmissible as hearsay?
  • Did the jury instruction on evidence of flight violate Sutton's right to the presumption of innocence?
  • Were the jury instructions so incomplete that it cannot be said they fairly stated the applicable law?
  • Did the prosecutor deprive Sutton of a fair trial by misrepresenting the law and misstating evidence regarding the crime of "knowingly concealing stolen property"?
  • Should the written judgment and sentence be corrected to accurately reflect the oral pronouncement?
  • Did the cumulative trial errors deprive Sutton of a fair trial and reliable result?

Findings

  • the court erred in finding evidence sufficient to support the conviction for knowingly concealing stolen property
  • the court erred by denying the demurrer to grand larceny; the evidence supported petit larceny but not grand larceny
  • the court erred in charging for "Grand Larceny" instead of "Larceny of Merchandise from a Retailer"
  • the court erred in ruling prior inconsistent statements as inadmissible hearsay
  • the court erred by instructing the jury on evidence of flight, violating Sutton's presumption of innocence
  • the jury instructions were incomplete and did not fairly state the applicable law
  • the prosecutor's conduct deprived Sutton of a fair trial by misrepresenting the law and evidence
  • the written judgment and sentence require correction to reflect the oral pronouncement of the sentence imposed
  • cumulative trial errors deprived Sutton of a fair trial and reliable result

F-2004-332

Aug. 11, 2005

Sheila Ann Sutton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Sheila Ann Sutton was tried by jury and convicted of Count I, Grand Larceny in violation of 21 O.S.2001, § 1704, and Count II, Knowingly Concealing Stolen Property in violation of 21 O.S.2001, § 1713, both after two or more former convictions, in the District Court of Cherokee County, Case No. CF-2003-99. In accordance with the jury’s recommendation the Honorable Mark. L. Dobbins sentenced Sutton to five (5) years imprisonment on Count I and four (4) years imprisonment on Count II, to run concurrently. Sutton appeals from these convictions and sentences.

Sutton raises nine propositions of error in support of her appeal:
I. The mere evidence that stolen shoes were discovered in a car in which Sutton was a passenger was insufficient to prove Sutton knowingly concealed stolen property;
II. The Court should have sustained the demurrer to grand larceny as, at most, only petit larceny was proved;
III. Sutton was improperly tried for Grand Larceny rather than for the more specific crime of Larceny of Merchandise from a Retailer;
IV. The Court erred in ruling that testimony concerning a prior inconsistent statement by the State’s key witness was inadmissible as hearsay;
V. Because Sutton did not deny flight or offer evidence to explain her conduct in leaving the scene of the crime, instructing the jury on evidence of flight violated Sutton’s right to the presumption of innocence;
VI. The jury instructions were so incomplete that it cannot be said that the instructions fairly stated the applicable law;
VII. The prosecutor deprived Sutton of a fair trial by misrepresenting the law governing the crime of knowingly concealing stolen property and by grossly misstating the evidence supporting the crime;
VIII. The written judgment and sentence should be corrected to reflect accurately the oral pronouncement of the sentence imposed; and
IX. The trial errors cumulatively deprived Sutton of a fair trial and reliable result.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that Count II must be reversed with instructions to dismiss and Count I must be modified.

In Proposition I Sutton correctly claims the evidence was insufficient to support her conviction for knowingly concealing stolen property, the Reebok shoes stolen from Stages. To secure that conviction the State must show (a) a defendant knew the property was stolen and (b) acted in some way to conceal the property from its rightful owner. The first element is satisfied by evidence that the boys stole the shoes and put them in the car, in Sutton’s presence. Sutton claims the State failed to show she concealed the property. This element is not committed by the mere acquisition of stolen property, but depends upon acts after such acquisition in contravention of another’s ownership. It requires a continuing act of concealing or withholding property. Concealing does not require actual hiding of the property, but can include anything a defendant does to prevent its recovery by its owner. The question is whether Sutton acted to conceal the property. Mere presence at a crime scene does not make a person liable for a crime. The evidence showed that, when the car was stopped, Sutton was sitting in the back passenger seat and the shoes were on the passenger floorboard. Sutton did not own the car and was not driving it. No evidence showed she either stole or moved the shoes, or did anything other than sit near them. This Court has held a person could not be prosecuted for concealing stolen property where a stolen tractor was placed in his garage, he looked in the garage, and subsequently bought the tractor, since the act of concealing had occurred before he became involved. We have found concealment where a defendant had constructive control over stolen guns by hiding them near his motel room and retaining the keys to the room. No such evidence of constructive control or any action aiding in concealment was presented here.

The State argues that Sutton’s subsequent involvement in the Wal-Mart larceny showed her guilty knowledge regarding the Stages loot. This Court has held that evidence of other property stolen at the same time as the charged property is appropriate other crimes evidence on a charge of concealing stolen property. However, generally, other crimes evidence of a similar crime committed soon before or after the charged crime should not be admitted where the crimes are independent and were separately completed. Such evidence may be admissible if the two crimes are so similar as to show a distinctive pattern or method of operation. Sutton’s alleged involvement in the Stages incident is not comparable to her involvement in the Wal-Mart larceny and the two crimes do not show a distinctive pattern or method. Identity is not an issue in this case; Sutton was certainly in the car and the only issue is whether she concealed the Stages shoes. Even if this Court agreed that Sutton’s subsequent adventures at Wal-Mart were relevant to show guilty knowledge of the Stages loot, that would not settle the question. As we discuss above, sufficient evidence showed Sutton knew the shoes were stolen. The only question is whether she concealed them, and the Wal-Mart evidence sheds no light on that issue. Insufficient evidence was presented to show that Sutton concealed the Stages merchandise. The Count II conviction for Knowingly Concealing Stolen Property is reversed with instructions to dismiss.

In Proposition II Sutton claims the demurrer to Count I should have been sustained, as the evidence proved petit larceny but not grand larceny. Sutton was charged with stealing DVD players and monitors. The evidence showed that she stole one DVD player worth $487. The boys each took a DVD player worth $296. Adding the total of all three DVD players, the $500 limit for grand larceny is surpassed. The Information need not specifically allege that a defendant aided and abetted others in committing a crime, and this Information did not name any other defendant. The State argued at trial that this was group grand larceny, and that Sutton and the boys acted as a team. Had the jury known what to do with this information, that would indeed have supported a grand larceny conviction. However, the trial court denied the State’s request for OUJI-CR (2nd) 2-5, 2-6 and 2-9, defining principals, aiding and abetting, and merely standing by. The jury thus had no guidance as to how to get to grand larceny, at $500, where the evidence showed Sutton only stole something worth $487. The evidence was not insufficient to support grand larceny. However, the jury was not properly instructed on the crime of grand larceny and was unable to properly consider the evidence supporting that charge.

The State argues that the omission of proper instructions was not error since the evidence was in line with the law. That is of no help if the jury is not properly instructed on the law. The State also argues this error was harmless as Sutton cannot show prejudice – the sentence she received was within the range of sentencing for both grand and petit larceny. We disagree. Sutton was sentenced to five years, the minimum possible sentence, for grand larceny after two or more priors. Five years is the maximum sentence for petit larceny after priors. Despite the State’s request for a twenty-year sentence, the jury gave Sutton the minimum sentence she could receive under their incomplete instructions. Due to improper instruction, the jury could not have found Sutton guilty of grand larceny. However, the evidence and instructions support a conviction for petit larceny. Rather than remand this case, in the interests of justice and judicial economy this Court will modify Sutton’s conviction in Count I to petit larceny. Petit larceny after two or more prior offenses has no minimum sentence and is punishable by up to five years imprisonment. Sutton’s sentence is modified to two years imprisonment.

Sutton correctly claims in Proposition V that the jury was improperly instructed on flight. Witnesses testified that Sutton and the boys fled Wal-Mart. Contrary to the State’s assertion on appeal, Veron Sutton offered no explanation for his mother’s flight. When asked whether his mother said to let her out of the car, she didn’t want any part of this, Veron replied that Sutton said something similar but had not said that. To call this ambiguous comment a defendant’s explanation of her flight is to stretch the term beyond all meaning. Case law and the OUJI comments clearly state that this instruction is not to be given under these circumstances, and the trial court should not have given it. The State argues that this error was harmless given the evidence of Sutton’s guilt. On the contrary, in Mitchell this Court stated, [W]e believe the violation of a defendant’s fundamental presumption of innocence to be far more grave; and, thus the error to be fundamental. Given our resolution of other issues, reversal is not necessary.

In Proposition VI Sutton argues that the trial court failed to give numerous standard instructions which are designed to assist the jury in every case. The State does not dispute this, but argues that this failure is harmless given the evidence of guilt. No matter how strong the evidence of guilt, it simply cannot outweigh the importance of a fairly instructed tribunal. Sutton did not receive that, and her right to a fair trial was hopelessly compromised. These errors in instruction contribute to our resolution of the case. The trial court should give the standard jury instructions unless they do not fairly and accurately state the law which applies to a particular case. Sutton argues, without the general instructions introducing the charged crimes, the jury could have convicted her of concealing the stolen DVD players, with which she was not charged.

Sutton also complains that the trial court modified the standard instruction on the presumption of innocence. Rather than saying the defendant, the court modified OUJI-CR(2nd) by saying a and any defendant. While pointless, the modifications did not erode Sutton’s presumption of innocence – the instruction clearly referred, in the context of the trial, to Sutton. Sutton also claims the trial court should have instructed on her theory of defense on Count II – that mere proximity to stolen goods was not enough to show concealment of stolen property. Our resolution of Proposition I, dismissing Count II, renders this argument moot.

Our resolution of this case renders the remaining propositions moot.

Decision

The Judgment in Count I is MODIFIED to PETIT LARCENY. The Sentence in Count I is MODIFIED to TWO (2) years imprisonment. The Judgment and Sentence in Count II is REVERSED with instructions to DISMISS.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeal, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 21 § 1704
  2. Okla. Stat. tit. 21 § 1713
  3. Antrobus v. State, 1995 OK CR 41, 900 P.2d 1003, 1005; Eslinger v. State, 1987 OK CR 53, 734 P.2d 830, 832; Fields v. State, 1983 OK CR 106, 666 P.2d 1301, 1303; 21 O.S. 2001, § 1713; OUJI-CR(2nd) 5-113.
  4. McMillan v. State, 1986 OK CR 94, 720 P.2d 1274, 1276 (proof that accused had reasonable cause to believe property was stolen is sufficient).
  5. Nowlin v. State, 2001 OK CR 32, 34 P.3d 654, 656, quoting Bussett v. State, 1982 OK CR 79, 646 P.2d 1293, 1295 (Cornish, J., specially concurring).
  6. Nowlin, 34 P.3d at 656.
  7. Nipps v. State, 1978 OK CR 30, 576 P.2d 310, 311.
  8. Hackney v. State, 1994 OK CR 29, 874 P.2d 810, 814.
  9. 21 O.S. 2001, § 172.
  10. Stotts v. State, 1969 OK CR 57, 452 P.2d 164, 166.
  11. Wyatt v. State, 1988 OK CR 58, 752 P.2d 1131, 1133.
  12. Lister v. State, 1988 OK CR 136, 758 P.2d 831, 833-34.
  13. Brewer v. State, 1976 OK CR 183, 554 P.2d 18, 21-22.
  14. Brewer, 554 P.2d at 20.
  15. Taylor v. State, 1982 OK CR 88, 646 P.2d 615, 616; see also Payne v. State.
  16. Jones v. State, 1995 OK CR 34, 899 P.2d 635, 649, cert. denied, 517 U.S. 1122, 116 S.Ct. 1357, 134 L.Ed.2d 524 (1996).
  17. Lott v. State, 2004 OK CR 27, 98 P.3d 318, 334, cert. denied, U.S., 125 S.Ct. 1699, L.Ed.2d (2005).
  18. Mitchell v. State, 1993 OK CR 56, 876 P.2d 682, 685.
  19. 12 O.S. 2001, § 577.2.
  20. OUJI-CR (2nd) 10-23 and 10-24.
  21. OUJI-CR (2nd) 9-44.
  22. OUJI-CR (2nd) 9-20.
  23. OUJI-CR (2nd) 9-1.
  24. OUJI-CR (2nd) 9-2.
  25. OUJI-CR (2nd) 9-3.
  26. OUJI-CR (2nd) 9-7.
  27. OUJI-CR (2nd) 9-20.
  28. OUJI-CR (2nd) 10-23.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1704 (2001) - Grand Larceny
  • Okla. Stat. tit. 21 § 1713 (2001) - Knowingly Concealing Stolen Property
  • Okla. Stat. tit. 21 § 172 (2001) - Liability for Concealment
  • Okla. Stat. tit. 12 § 577.2 (2001) - General Jury Instructions
  • Okla. Stat. tit. 22 § 3.15 (2005) - Mandate of the Court
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing After Two or More Prior Convictions

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:

  • Antrobus v. State, 1995 OK CR 41, 900 P.2d 1003, 1005
  • Eslinger v. State, 1987 OK CR 53, 734 P.2d 830, 832
  • Fields v. State, 1983 OK CR 106, 666 P.2d 1301, 1303
  • McMillan v. State, 1986 OK CR 94, 720 P.2d 1274, 1276
  • Nowlin v. State, 2001 OK CR 32, 34 P.3d 654, 656
  • Bussett v. State, 1982 OK CR 79, 646 P.2d 1293, 1295
  • Nipps v. State, 1978 OK CR 30, 576 P.2d 310, 311
  • Hackney v. State, 1994 OK CR 29, 874 P.2d 810, 814
  • Stotts v. State, 1969 OK CR 57, 452 P.2d 164, 166
  • Wyatt v. State, 1988 OK CR 58, 752 P.2d 1131, 1133
  • Lister v. State, 1988 OK CR 136, 758 P.2d 831, 833-34
  • Brewer v. State, 1976 OK CR 183, 554 P.2d 18, 21-22
  • Taylor v. State, 1982 OK CR 88, 646 P.2d 615, 616
  • Payne v. State
  • Jones v. State, 1995 OK CR 34, 899 P.2d 635, 649
  • Lott v. State, 2004 OK CR 27, 98 P.3d 318, 334
  • Welch v. State, 2000 OK CR 8, 2 P.3d 356
  • McCarty v. State, 2002 OK CR 4, 41 P.3d 981, 984-85
  • Mitchell v. State, 1993 OK CR 56, 876 P.2d 682, 685
  • Rea v. State, 2001 OK CR 28, 34 P.3d 148
  • Pinkley v. State, 2002 OK CR 26, 49 P.3d 756, 760

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