Larry Roger Watts v The State Of Oklahoma

F-2005-963

Filed: May 25, 2007

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Larry Roger Watts appealed his conviction for using a vehicle to discharge a weapon. Conviction and sentence were modified to felony Malicious Injury to Property with a sentence of two years imprisonment and a $1,000 fine. Judge A. Johnson dissented.

Decision

The judgment is hereby MODIFIED to a conviction for felony Malicious Injury to Property, rather than Use of a Vehicle to Facilitate the Intentional Discharge of a Weapon. As such, the sentence is MODIFIED to two (2) years imprisonment and a $1,000 fine. 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.

Issues

• Was the evidence sufficient to support the charge of using a vehicle to discharge a firearm?
• Did the removal of "air guns" from the statute's list of instruments mean that the prosecution's evidence regarding an air gun could not support a conviction?
• Did the prosecutor's invocation of societal alarm deprive Appellant of a fair trial and result in an excessive sentence?
• Was the arrest of Appellant illegal, resulting in illegally seized evidence that warranted reversal of his conviction?
• Should the charge against Mr. Watts be dismissed due to the police erasing the dispatcher's tapes of the incident?

Findings

• The court erred by affirming the conviction under the drive-by shooting statute because there were no persons present, thus the conviction for that crime cannot stand.
• The charges under propositions two and four were rendered moot due to the modification of the conviction to felony Malicious Injury to Property.
• The record does not support a finding of plain error regarding the prosecution's invocation of societal alarm, and it did not inflame the jury.
• The claim regarding the destruction of the dispatcher's tapes was without merit as the appellant failed to demonstrate evidence was exculpatory or that the State acted in bad faith.
• The conviction is modified to felony Malicious Injury to Property, and the sentence is modified to two years imprisonment and a $1,000 fine.

F-2005-963

May 25, 2007

Larry Roger Watts

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant, Larry Roger Watts, was tried by jury in the District Court of Tulsa County, Case Number F-2003-508, and convicted of Use of a Vehicle to Facilitate the Intentional Discharge of a Weapon, after two former felony convictions, in violation of 21 O.S.2001, § 652. The jury set punishment at three (3) years imprisonment, plus an $8,000 fine. 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 evidence was insufficient to support the charge of using a vehicle to discharge a firearm;
II. Because the Legislature removed air guns from the statute’s list of instruments which could not be fired from a vehicle, the prosecution’s evidence that Appellant allegedly fired an air gun from a car does not support a conviction under the statute charged;
III. The prosecutor’s invocation of societal alarm deprived Appellant of a fair trial and resulted in the jury imposing an excessive sentence; 1
IV. Because Appellant’s arrest was illegal, the evidence obtained from his vehicle was illegally seized; therefore his conviction must be reversed; and
V. Because the police erased the dispatcher’s tapes of the incident, the charge against Mr. Watts should be dismissed.

After thoroughly considering these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal is not required, but we modify the conviction and sentence, as below.

With respect to proposition one, we agree that the drive-by shooting statute, 21 O.S.2001, § 652, is directed toward people, not property. See, e.g., Burleson v. State, 2002 OK CR 15, I 5, 46 P.3d 150, 152 (Drive-by shooting, like shooting with intent to kill or assault and battery with a deadly weapon, is indisputably a crime against the person.) Here, the undisputed fact was that there were no persons in the building, in front of it, or anywhere near where the shooting took place. As such, the conviction for that crime cannot stand.

However, Appellant was originally charged with felony Malicious Injury to Property as a second count, and, at one point, made that allegation as an alternative theory to drive-by shooting. Defense counsel and Appellant both vigorously defended against that charge, and the prosecutor began questioning his ability to proceed under alternate theories, despite the fact that this is clearly allowed under 22 O.S.2001, § 404. Ultimately, through a series of rulings requiring the State to elect and defense attacks on the alternate theory plan, the State settled upon and tried the case under the drive-by shooting statute. 1 Indeed, the provision is a subpart of a statute that otherwise deals with shooting with intent to kill or assault and batter with a deadly weapon. Also, the jury instructions for this crime are found under the subject heading crimes against the person.

We find the State should have been allowed to proceed under alternate theories in this case, and Appellant has suffered no surprise or prejudice by our decision to modify the conviction and sentence to a felony violation of the Malicious Injury to Property statute, 21 O.S.2001, § 1760. While it cannot be said that Malicious Mischief is a lesser included offense to drive-by shooting, by proving the intentional discharge of the weapon into the victim’s window, thereby shattering it, with a form of reckless disregard, all of the elements of Malicious Mischief were clearly proven, except value. However, at trial, the victim also testified that she had suffered $3,700 in damages to her business as a result of this act. Moreover, this was not the first time such injuries had been suffered.

With respect to proposition two and four, we find those claims have been rendered moot as per our decision above. With respect to proposition three, we find the record does not support plain error with respect to the incidents of alleged societal alarm invocation, and the one argument to which the defense did object only touched upon the issue at best; it did not decide the verdict or inflame the jury. Simpson U. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693. With respect to proposition five, we find Appellant has failed to demonstrate that the evidence was exculpatory or the State acted in bad faith.

DECISION

The judgment is hereby MODIFIED to a conviction for felony Malicious Injury to Property, rather than Use of a Vehicle to Facilitate the Intentional Discharge of a Weapon. As such, the sentence is MODIFIED to two (2) years imprisonment and a $1,000 fine. 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.

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Footnotes:

1. 21 O.S.2001, § 652.
2. 22 O.S.2001, § 404.
3. 21 O.S.2001, § 1760.
4. Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693.
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 - Use of a Vehicle to Facilitate the Intentional Discharge of a Weapon
• Okla. Stat. tit. 22 § 404 - Alternative Theories of Prosecution
• Okla. Stat. tit. 21 § 1760 - Malicious Injury to Property

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:

• Burleson v. State, 2002 OK CR 15, I 5, 46 P.3d 150, 152
• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693