Thomas Clinton Ledgerwood v The State Of Oklahoma

F-2008-579

Filed: Aug. 19, 2009

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Thomas Clinton Ledgerwood appealed his conviction for maiming, domestic abuse with great bodily injury, and kidnapping. His conviction and sentence included seven years imprisonment and a fine for maiming, seven years for domestic abuse, and one year for kidnapping, all to be served one after the other. The court decided that his conviction for kidnapping should be reversed because it was too closely related to the other charges, which is not allowed under Oklahoma law. The court found no error with the other convictions, so they were upheld. Judge Lumpkin agreed with the overall decision but provided a separate opinion.

Decision

Appellant's conviction for Kidnapping (Count 3) is REVERSED WITH INSTRUCTIONS TO DISMISS. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the Information insufficient to support a charge of Kidnapping?
• Was the evidence insufficient to support a conviction for Kidnapping?
• Did the trial court err in subjecting Appellant to prosecution for multiple crimes which arose from one set of facts?
• Was Appellant denied his right to confront witnesses when the State failed to show a witness's unavailability?
• Was Appellant denied a fair trial before an impartial court?
• Did cumulative error deny Appellant a fair trial?

Findings

• Reversed conviction for Kidnapping (Count 3) due to violation of Oklahoma's ban on multiple punishments for a single act.
• Mooted Proposition 1 regarding the sufficiency of the Information for the Kidnapping charge.
• Mooted Proposition 2 regarding the sufficiency of the evidence for the Kidnapping charge.
• Denied Proposition 4 regarding the trial court's finding of witness unavailability.
• Denied Proposition 5 regarding judicial bias as no bias was demonstrated.
• Found Proposition 6 without merit as the only error identified was resolved by the reversal of Count 3.

F-2008-579

Aug. 19, 2009

Thomas Clinton Ledgerwood

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE:

Appellant, Thomas Clinton Ledgerwood, was convicted by a jury in Seminole County District Court, Case No. CF-2007-246A, of Count 1: Maiming (21 O.S.2001, § 751); Count 2: Domestic Abuse Involving Great Bodily Injury (21 O.S.Supp.2006, § 644(D)); and Count 3: Kidnapping (21 O.S.Supp.2004, § 741). 1 On June 3, 2008, the Honorable George Butner, District Judge, sentenced Appellant in accordance with the jury’s recommendation: Count 1, seven years imprisonment and a $1000 fine; Count 2, seven years imprisonment; and Count 3, one year imprisonment. The court ordered the sentences to be served consecutively. This appeal followed.

Appellant raises the following propositions of error:

1. The Information was insufficient to support a charge of Kidnapping.
2. The evidence was insufficient to support a conviction for Kidnapping.
1 Appellant was tried jointly with co-defendant William Dewey Livesay, whose appeal is before the Court in Case No. F-2008-580. By order issued February 12, 2009, Appellants’ joint motion to cross-reference the records in the two appeals was granted. Their motion to consolidate the appeals for disposition in a single opinion is hereby DENIED.
3. The trial court erred in subjecting Appellant to prosecution for multiple crimes which arose from one set of facts.
4. Appellant was denied his right to confront witnesses when the State failed to show a witness’s unavailability.
5. Appellant was denied a fair trial before an impartial court.
6. Cumulative error denied Appellant a fair trial.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we reverse Appellant’s conviction on Count 3, and affirm in all other respects. As to Proposition 3, the facts which give rise to the charge of Kidnapping (Count 3) are inseparable from facts which comprise the charges of Maiming (Count 1) and Domestic Assault and Battery (Count 2). Accordingly, a separate conviction for this offense violates Oklahoma’s ban on multiple punishments for a single act. 21 O.S.2001, § 11; Davis v. State, 1999 OK CR 48, II 13, 993 P.2d 124, 126. Appellant’s conviction for Kidnapping is therefore REVERSED. Dismissal of Count 3 on these grounds renders Propositions 1 and 2 moot.

As to Proposition 4, the trial court did not abuse its discretion in finding witness Robert Akin unavailable, so that the State could offer his testimony from a prior hearing into evidence at trial. Cleary v. State, 1997 OK CR 35, TT 16-18, 942 P.2d 736, 744; Dilworth v. State, 1980 OK CR 33, T 10, 611 P.2d 256, 259. Further, Appellant has demonstrated no unfair prejudice from the 2 admission of this prior testimony. Proposition 4 is denied.

As to Proposition 5, Appellant did not ask the trial court to recuse, so we review his claim of judicial bias only for plain error. Alexander v. State, 2002 OK CR 23, 1 18, 48 P.3d 110, 114. The record evinces no bias on the part of the trial court. The court chided both parties for not complying with the court’s discovery order, and the court’s questioning of a witness was entirely proper and did not prejudice Appellant.³ 12 O.S.2001, § 2614; Allen v. State, 1993 OK CR 49, T 4, 862 P.2d 487, 489. Proposition 5 is denied.

As to Proposition 6, the only error identified on appeal has been resolved by the reversal of Count 3. Finding no other error, Proposition 6 is without merit. Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627.

DECISION

Appellant’s conviction for Kidnapping (Count 3) is REVERSED WITH INSTRUCTIONS TO DISMISS. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
JAMES R. NEAL
JAMES R. NEAL
ATTORNEY AT LAW
ATTORNEY AT LAW
P.O. BOX 1628
P.O. BOX 1628
ADA, OK 74820
ADA, OK 74820
ATTORNEY FOR DEFENDANT
ATTORNEY FOR APPELLANT
JAMES E. TILLISON
W. A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL
P.O. BOX 1300
CHRISTY A. BAKER
WEWOKA, OK 74884
ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR THE STATE
313 N. E. 21st ST.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, P.J.
A. JOHNSON, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULTS
CHAPEL, J.: CONCUR
LEWIS, J.: CONCUR

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Footnotes:

1. 1 Appellant was tried jointly with co-defendant William Dewey Livesay, whose appeal is before the Court in Case No. F-2008-580.
2. 21 O.S.2001, § 11; Davis v. State, 1999 OK CR 48, II 13, 993 P.2d 124, 126.
3. Cleary v. State, 1997 OK CR 35, TT 16-18, 942 P.2d 736, 744; Dilworth v. State, 1980 OK CR 33, T 10, 611 P.2d 256, 259.
4. Alexander v. State, 2002 OK CR 23, 1 18, 48 P.3d 110, 114.
5. 12 O.S.2001, § 2614; Allen v. State, 1993 OK CR 49, T 4, 862 P.2d 487, 489.
6. Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627.
7. 2 Appellant claims the unavailable witness provided evidence of motive and intent.
8. 3 The court questioned a witness called by the defense at a pretrial hearing.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 751 - Maiming
• Okla. Stat. tit. 21 § 644 - Domestic Abuse Involving Great Bodily Injury
• Okla. Stat. tit. 21 § 741 - Kidnapping
• Okla. Stat. tit. 21 § 11 - Multiple Punishments
• Okla. Stat. tit. 12 § 2614 - Witness Unavailability

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:

• Davis v. State, 1999 OK CR 48, II 13, 993 P.2d 124, 126
• Cleary v. State, 1997 OK CR 35, TT 16-18, 942 P.2d 736, 744
• Dilworth v. State, 1980 OK CR 33, T 10, 611 P.2d 256, 259
• Alexander v. State, 2002 OK CR 23, 1 18, 48 P.3d 110, 114
• Allen v. State, 1993 OK CR 49, T 4, 862 P.2d 487, 489
• Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627