Cleon Christopher Johnson v The State Of Oklahoma

F-2004-691

Filed: Feb. 2, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Cleon Christopher Johnson appealed his conviction for several crimes, including third-degree arson, robbery with a firearm, and other charges. He was convicted and sentenced to a total of 89 years in prison. The court reversed his conviction for third-degree arson because the evidence did not prove that the property burned was worth at least $50, which is required for that charge. The convictions for the other crimes were upheld. Judge Lumpkin disagreed with reversing the arson conviction, believing there was enough evidence to support it.

Decision

The Judgment and Sentence for count two shall be REVERSED and REMANDED with instructions to DISMISS. The Judgment and Sentence of the remainder of the counts shall be AFFIRMED. 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 the evidence sufficient to establish the offense of arson in the third degree?
• Was the evidence sufficient to convict Appellant Johnson of robbery with a firearm as charged in the Information?
• Did prosecutorial misconduct require modification of the sentences imposed?

Findings

• the court erred, evidence was not sufficient for third degree arson
• the evidence was sufficient to convict Appellant Johnson of robbery with a firearm
• the comments did not rise to the level of plain error

F-2004-691

Feb. 2, 2006

Cleon Christopher Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE:

Cleon Christopher Johnson, Appellant, was charged in a multi-count Information with, count two, Third Degree Arson in violation of 21 O.S. 1991, § 1403; count three, Robbery with a Firearm in violation of 21 O.S.2001, § 801; count four, Accessory after the Fact to Shooting with Intent to Kill in violation of 21 O.S.2001, §§ 175 and 652; and, count five, Possession of a Stolen Vehicle in violation of 21 O.S.2001, § 1720, all after former conviction of two or more felonies, in the District Court of Tulsa County, Case No. CF-2003-1748. Johnson was tried by jury and convicted of all four counts before the Honorable Tom C. Gillert, District Judge. The jury assessed punishment at count two – four (4) years, count three – thirty (30) years, count four – forty (40) years, and count five – fifteen (15) years. Judge Gillert sentenced accordingly, ordering that all of the sentences be served consecutively. Johnson has perfected an appeal of the District Court’s Judgments and Sentences.

In support of the appeal, Johnson raises the following propositions of error:

1. The evidence was insufficient to establish the offense of arson in the third degree.
2. The evidence was insufficient to convict Appellant Johnson of robbery with a firearm as charged in the Information.
3. Prosecutorial misconduct requires modification of the sentences imposed.

After thorough consideration of Johnson’s propositions of error and the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we have determined that the error raised in proposition one has merit, thus the conviction for third degree arson, count two of the Judgment and Sentence must be reversed and remanded with instructions to dismiss. The remainder of the Judgments and Sentences of the District Court shall be affirmed.

We find, in proposition one, that the State failed to produce any evidence about the value of the property burned. Third degree arson requires that the state prove that the item burned be valued at not less than fifty dollars ($50.00). 21 O.S.1991, § 1403. Jackson v. State, 1991 OK CR 103, IT 6, 818 P.2d 910, 911-12. One witness testified that she purchased the property, but she never gave a price paid or an estimated value of the property. [T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). [T]he question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials. Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 406, 90 L.Ed. 350 (1946).

In proposition two, we find, viewed in a light most favorable to the State, the evidence was sufficient for any rational jury to find the existence of the elements of robbery with a firearm beyond a reasonable doubt, and to find that Johnson was a principal to that crime. Easlick v. State, 2004 OK CR 21, 99 9 and 15, 90 P.3d 556, 559 and 559; Bonner v. State, 1981 OK CR 27, I 3, 625 P.2d 1267, 1268.

In proposition three, we find that trial counsel failed to object to the alleged misconduct. This Court, therefore, is limited to review for plain error only. Pickens v. State, 2001 OK CR 3, I 38, 19 P.3d 866, 879. The comments did not rise to the level of plain error. 12 O.S.2001, § 2104(D); See United States V. Olano, 507 U.S. 725, , 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993); also see Charm v. State, 1996 OK CR 40, I 62, 924 P.2d 754, 770.

DECISION

The Judgment and Sentence for count two shall be REVERSED and REMANDED with instructions to DISMISS. The Judgment and Sentence of the remainder of the counts shall be AFFIRMED. 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.

APPEARANCES AT TRIAL

DAVID C. PHILLIPS
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY
PYTHIAN BUILDING
423 SOUTH BOULDER, STE 300
TULSA, OK 74103
ATTORNEY FOR DEFENDANT

WILLIAM J. MUSSMAN
ASSISTANT DISTRICT ATTORNEY
TULSA COUNTY
406 COURTHOUSE
500 SOUTH DENVER AVENUE
TULSA, OK 74103
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

STEPHEN J. GREUBEL
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY
PYTHIAN BUILDING
423 SOUTH BOULDER, STE 300
TULSA, OK 74103
ATTORNEY FOR APPELLANT

W. A. DREW EDMONDSON
OKLAHOMA ATTORNEY GENERAL
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73104
ATTORNEYS FOR APPELLEE

OPINION BY: LEWIS, J.

CHAPEL, P.J.: Concurs
LUMPKIN, V.P.J.: Concurs in Part/Dissents in Part
C. JOHNSON, J.: Concurs
A. JOHNSON, J.: Concurs

LUMPKIN, V.P.J.: CONCUR IN PART/DISSENT IN PART

I agree with the Summary Opinion’s resolution of propositions two and three. However, I dissent to the decision to reverse and dismiss Appellant’s conviction for third degree arson. I find the circumstantial, as well as direct, evidence at trial was more than sufficient to support the conviction, as did twelve competent jurors. It is common sense that a 1997 Cadillac that is in working condition, has custom rims, and has stereo speakers worthy of being stripped (by Appellant) from the car, has a value on more than $50.00. When a jury is provided with evidence of a car’s make and model, as well as information that the car is drivable and has valuable features (rims and speakers), then they have everything they need in order to sustain a verdict such as that reached in the instant case. This opinion does not give jurors the credit that they deserve as the finders of fact.

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Footnotes:

1. 21 O.S. 1991, § 1403.
2. Jackson v. State, 1991 OK CR 103, IT 6, 818 P.2d 910, 911-12.
3. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).
4. Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 406, 90 L.Ed. 350 (1946).
5. Easlick v. State, 2004 OK CR 21, 99 9 and 15, 90 P.3d 556, 559 and 559.
6. Bonner v. State, 1981 OK CR 27, I 3, 625 P.2d 1267, 1268.
7. Pickens v. State, 2001 OK CR 3, I 38, 19 P.3d 866, 879.
8. 12 O.S.2001, § 2104(D); See United States V. Olano, 507 U.S. 725, , 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993).
9. also see Charm v. State, 1996 OK CR 40, I 62, 924 P.2d 754, 770.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1403 - Third Degree Arson
• Okla. Stat. tit. 21 § 801 - Robbery with a Firearm
• Okla. Stat. tit. 21 § 175 - Accessory After the Fact
• Okla. Stat. tit. 21 § 652 - Accessory After the Fact
• Okla. Stat. tit. 21 § 1720 - Possession of a Stolen Vehicle
• Okla. Stat. tit. 12 § 2104(D) - Plain Error Review

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• In re Winship - Due Process Clause
• United States v. Olano - Plain Error Review

Other citations:

No other rule citations found.

Case citations:

• Jackson v. State, 1991 OK CR 103, I 6, 818 P.2d 910, 911-12
• Easlick v. State, 2004 OK CR 21, I 9 and 15, 90 P.3d 556, 559
• Bonner v. State, 1981 OK CR 27, I 3, 625 P.2d 1267, 1268
• Pickens v. State, 2001 OK CR 3, I 38, 19 P.3d 866, 879
• Charm v. State, 1996 OK CR 40, I 62, 924 P.2d 754, 770