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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA CHARLES EARL LINDSAY, ) ) Appellant, NOT FOR PUBLICATION V. ) Case No. F-2005-252 ) THE STATE OF OKLAHOMA, 1 ) FILED Appellee. IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA AUG 3 0 2006 SUMMARY OPINION MICHAEL S. RICHIE LUMPKIN, VICE-PRESIDING JUDGE: CLERK Appellant, Charles Earl Lindsay, was tried by jury in the District Court of Cleveland County, Case Number CF-2004-493, and convicted of Robbery with an Imitation Firearm, in violation of 21 O.S.2001, § 801, after former conviction of two or more felonies. 1 The jury set punishment at forty (40) years imprisonment. The trial judge sentenced Appellant in accordance with the jury’s determination. Appellant now appeals his conviction and sentence. Appellant raises the following propositions of error in this appeal: I. The State introduced insufficient evidence as a matter of law to sustain its burden of proof and the district court clearly erred in denying Appellant’s demurrer to the State’s evidence; II. The State improperly bolstered the complaining witness’s testimony by introducing testimony from a police officer that she identified Appellant in a photographic lineup; III. Appellant received constitutionally ineffective assistance of counsel as a result of counsel’s failure to suppress the videotaped interview of Appellant with Officer Uselton; 1 Appellant was originally charged with a second count, Assault and Battery with a Dangerous Weapon, but the State dismissed it at the preliminary hearing on the belief that it had merged with Count I. 1 IV. Appellant was denied a fundamentally fair trial when deputies brought him into the courtroom in handcuffs; V. Appellant received constitutionally ineffective counsel when trial counsel failed to request jury instructions on lesser included degrees of robbery; VI. Prosecutorial misconduct during closing arguments resulted in a fundamentally unfair trial; VII. The sentence imposed is excessive and must be modified; and VIII. The accumulation of errors resulted in a fundamentally unfair trial. After thoroughly considering these propositions and the entire record before us, we find modification is required. With respect to proposition one, we find Appellant’s claim has merit. The State sufficiently proved the first seven elements necessary for a conviction under 21 O.S.2001, § 801, i.e., (1) wrongful; (2) taking; (3) carrying away; (4) personal property; (5) of another; (6) from the person of another; and (7) by force or fear. However, the State failed to meet its burden of proof on the eighth element, i.e., “through use of a imitation firearm capable of raising in the mind of the person threatened with such device a fear that it is a real firearm.” Unquestionably, the imitation firearm was capable of convincing someone that it was a real firearm. However, the victim was never “threatened with such device.” The record reflects the victim never saw the imitation weapon, even though it was smashed against her head and knocked her unconscious. She was never made aware of the weapon in any way until after the crime was completed. This is insufficient under the statutory language. Therefore relief in 2 the form of modification is required. See McArthur v. State, 1993 OK CR 48, I 10, 862 P.2d 482, 484-85; 22 O.S.2001, § 1066. Reviewing the information filed in this case and the elements of robbery, which necessarily include the use of force or fear, we find it appropriate under these specific facts to modify Appellant’s conviction to First Degree Robbery, in violation of 21 O.S.2001, § 797, subsections (1) and (3). Appellant caused “serious bodily injury” to the victim by breaking her finger and striking her in the head with a weapon SO hard as to render her unconscious. His actions also intentionally put the victim in fear of serious bodily injury, as she attempted to flee in vain. Modification of Appellant’s sentence is also warranted for reasons set forth below. With respect to proposition two, we find this Court has condemned the practice of having third parties testify about extra-judicial identifications made by others in several cases, including Brownfield V. State, 1983 OK CR 125, 668 P.2d 1165. Some cases support a harmless error analysis regarding this issue. See, e.g., Trim V. State, 1991 OK CR 37, I 8, 808 P.2d 697, 699 (finding such testimony may be, but is not necessarily reversible error). Here, we find any such error was harmless, if error at all, as the defense strategy was clearly to attack the identification procedures, which resulted in one misidentification and one with conflicts. Indeed, defense counsel himself cross-examined the police officer vigorously concerning the lineup and procedures used. With respect to proposition three, we find defense counsel’s performance in this case, including the issue of the admissibility of Appellant’s statement, 3 did not rise to the level of constitutionally-ineffective assistance under Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) or violate Appellant’s Fifth and Sixth Amendment rights. Michigan v. Jackson, 475 U.S. 625, 632, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986); Miller v. State, 2001 OK CR 17, 9 12-13, 29 P.3d 1077, 1081; and Patterson v. Illinois, 487 U.S. 285, 291, 108 S.Ct. 2389, 2394, 101 L.Ed.2d 261 (1988). The motion to supplement the record and application for evidentiary hearing are hereby DENIED. 12 O.S.Supp.2002, § 2606. With respect to proposition four, we find error occurred when Appellant was brought into court and escorted out of court in handcuffs in the presence of jurors. Deck V. Missouri, 487 U.S. 285, 125 S.Ct 2007, 161 L.Ed2d 953 (2005). Even though this was not a capital case and the incidents occurred only during sentencing, these events may have impacted the sentence by affecting negatively the jury’s perception of Appellant. We take this in consideration with respect to the modification of Appellant’s sentence. With respect to proposition five, we find lesser-included offense instructions were not warranted as Appellant’s defense was innocence/alibi. See Hooker v. State, 1994 OK CR 75, I 31, 887 P.2d 1351, 1361. With respect to proposition six, we find no prosecutorial misconduct warranting relief. Garrison v. State, 2004 OK CR 35, I 122, n. 35, 103 P.3d 590, 611, n.35; Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693. With respect to proposition seven, we find, consistent with contemporaneous cases before this Court, that the jury should have been 4 instructed on the applicability of the 85% rule, i.e., 21 O.S.2001, § 13.1. Anderson v. State, 2006 OK CR 6, P.3d We take this into account with respect to the modification of Appellant’s sentence.2 And finally, we find proposition eight, cumulative error, to be moot, considering the relief granted. DECISION Appellant’s conviction is hereby REVERSED and MODIFIED to the crime of First-Degree Robbery, in violation of 21 O.S.2001, § 797 (1) and (3), and to correct each of the errors discussed, Appellant’s sentence is hereby MODIFIED to twenty (20) years imprisonment. The case is REMANDED to the District Court of Cleveland County with instructions to enter a corrected Judgment and Sentence in conformity with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY THE HONORABLE TOM A. LUCAS, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL ELTON JENKINS JAMES L. HANKINS 303 SOUTH PETERS HANKINS LAW OFFICE NORMAN, OK 73069 119 N. ROBINSON, SUITE 320 COUNSEL FOR APPELLANT OKLAHOMA CITY, OK 73102 2 Based upon the principle of stare decisis, I accede to the application of Anderson to cases pending on appeal at the time of that decision. However, I believe the Court should apply the plain language of Anderson, which states: While this decision gives effect to the legislative intent to provide juries with pertinent information about sentencing options, it does not amount to a substantive change in the law. A trial court’s failure to instruct on the 85% Rule in cases before this decision will not be grounds for reversal. 2006 OK CR 6, 125, – P.3d at – (emphasis added). The plain reading of the decision reveals it is not a substantive change in the law, only a procedural change, and it should only be applied in a prospective manner. 5 R. RICHARD SITZMAN W.A. DREW EDMONDSON DAVID BRITTON ATTORNEY GENERAL OF OKLAHOMA VICTORIA GILLISPIE JENNIFER B. MILLER ASSISTANT DISTRICT ATTORNEYS ASSISTANT ATTORNEY GENERAL DISTRICT ATTORNEY’S OFFICE 112 STATE CAPITOL BUILDING 128 SOUTH PETERS OKLAHOMA CITY, OK 73105 NORMAN, OK 73069 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: LUMPKIN, V.P.J. CHAPEL, P.J.: CONCUR C. JOHNSON, J.: CONCUR A. JOHNSON, J.: CONCUR LEWIS, J.: CONCUR RC 6

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