Jacinda Simone Osborne v The State Of Oklahoma

F-2009-530

Filed: Jul. 22, 2010

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Jacinda Simone Osborne appealed her conviction for First Degree Robbery. The court modified the conviction and sentenced her to Second Degree Robbery. Judge Lumpkin dissented.

Decision

The judgment of the district court is MODIFIED to the crime of Second Degree Robbery. The sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the trial court's failure to instruct the jury on the definition of "serious bodily injury" an error?
• Did the trial court err in not instructing on the lesser-included offense of Second Degree Robbery?
• Was the evidence sufficient to support Appellant's conviction for First Degree Robbery?

Findings

• the trial court erred in failing to instruct the jury on the definition of "serious bodily injury" (moot)
• the trial court erred in not instructing on the lesser-included offense of Second Degree Robbery (moot)
• the evidence was insufficient to support Appellant's conviction for First Degree Robbery

F-2009-530

Jul. 22, 2010

Jacinda Simone Osborne

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE:

Appellant, Jacinda Simone Osborne, was convicted by a jury in Tulsa County District Court, Case No. CF-2008-5721, of First Degree Robbery, After Conviction of a Felony (21 O.S.2001, § 797). On June 1, 2009, the Honorable Clancy Smith, District Judge, sentenced Appellant in accordance with the jury’s recommendation to fifteen years imprisonment and fined her $5000. This appeal followed. Appellant raises the following propositions of error:

1. The trial court erred in failing to instruct the jury on the definition of serious bodily injury.
2. The trial court erred in not instructing on the lesser-included offense of Second Degree Robbery.
3. The evidence was insufficient to support Appellant’s conviction for First Degree Robbery.

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 find merit to Proposition 3 and MODIFY the judgment herein. The State alleged that Appellant, acting in concert with others, committed First Degree Robbery using force and/or fear to take property from the person of another. Although the victim was beaten during the robbery, the State never alleged, and the evidence did not establish, any of the aggravating factors which would elevate the offense from Second Degree Robbery to First Degree Robbery, such as the infliction or threat of serious bodily injury. See 21 O.S.2001, §§ 791, 797; Owens v. State, 2010 OK CR 1, 229 P.3d 1261. However, viewed in a light most favorable to the State, the evidence clearly supported a conviction for Second Degree Robbery. We therefore MODIFY the Judgment to Second Degree Robbery, After Conviction of a Felony. 21 O.S.2001, §§ 797, 799; 21 O.S.Supp.2002, § 51.1(A)(1)); 22 O.S.2001, § 1066; McArthur U. State, 1993 OK CR 48, 11 4-10, 862 P.2d 482, 483-85. Our resolution of Proposition 3 renders Propositions 1 and 2 moot.

DECISION

The judgment of the district court is MODIFIED to the crime of Second Degree Robbery. The sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 797
2. 21 O.S.2001, §§ 791, 797
3. Owens v. State, 2010 OK CR 1, 229 P.3d 1261
4. 21 O.S.2001, §§ 797, 799
5. 21 O.S.Supp.2002, § 51.1(A)(1)
6. 22 O.S.2001, § 1066
7. McArthur U. State, 1993 OK CR 48, 11 4-10, 862 P.2d 482, 483-85
8. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 797 (2001) - First Degree Robbery, After Conviction of a Felony
• Okla. Stat. tit. 21 § 791 (2001) - Robbery
• Okla. Stat. tit. 21 § 799 (2001) - Second Degree Robbery, After Conviction of a Felony
• Okla. Stat. tit. 21 § 51.1(A)(1) (Supp. 2002) - Sentencing Enhancements
• Okla. Stat. tit. 22 § 1066 (2001) - Instructions to Jury

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:

• Owens v. State, 2010 OK CR 1, 229 P.3d 1261
• McArthur v. State, 1993 OK CR 48, 862 P.2d 482