Phillip Ray Herndon v The State Of Oklahoma

F 2009-70

Filed: Nov. 3, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Phillip Ray Herndon appealed his conviction for Assault and Battery with a Dangerous Weapon. His conviction and sentence were for twenty years in prison. Judge Lewis dissented.

Decision

The Judgment and Sentence of the district court is AFFIRMED. The case is REMANDED to the district court for an Order Nunc Pro Tunc correcting the Judgment and Sentence to correctly reflect the sentence as imposed at Formal Sentencing. 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 there an abuse of discretion by the trial court in refusing to issue requested instructions on the lesser offense of Assault and Battery?
• Did the evidence support Appellant's conviction for Assault and Battery with a Dangerous Weapon beyond a reasonable doubt?
• Should the Judgment and Sentence be corrected to reflect that Appellant's sentence runs concurrently with another sentence, as indicated during formal sentencing?

Findings

• The trial court did not abuse its discretion in denying Appellant's requested instruction on the lesser offense of Assault and Battery.
• The evidence presented at trial was sufficient to support Appellant's conviction beyond a reasonable doubt.
• The case is remanded to the district court for an Order Nunc Pro Tunc correcting the Judgment and Sentence to correctly reflect the sentence as imposed at Formal Sentencing.

F 2009-70

Nov. 3, 2009

Phillip Ray Herndon

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE: Appellant, Phillip Ray Herndon, was convicted after jury trial in Ottawa County District Court, Case No. CF-2008-106, of Assault and Battery with a Dangerous Weapon, After Former Conviction of Two or More Felonies. The jury assessed punishment at twenty years imprisonment. The trial court sentenced Appellant accordingly. It is from this Judgment and Sentence that Appellant appeals to this Court. Appellant raises the following propositions of error:

1. The trial court’s refusal to issue requested instructions on the lesser offense of Assault and Battery was an abuse of discretion and it denied Appellant his fundamental fair trial rights under the 5th and 14th Amendments of the United States Constitution and under Art. II, § 7 of the Oklahoma Constitution.

2. Without proof either that the object allegedly used was a per se dangerous weapon or that it was used in a manner likely to produce death or great bodily harm, the evidence was insufficient to prove Appellant guilty of Assault and Battery with a Dangerous Weapon.

3. Appellant’s Judgment and Sentence fails to include the order that his sentence in this case run concurrently with his sentence in another case, as the trial court ordered it was to do at the time formal sentence was pronounced. This clerical error should be corrected by entry of a nunc pro tunc Judgment and Sentence.

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 affirm Appellant’s Judgment and Sentence. We find in Proposition I that the trial court did not abuse its discretion in denying Appellant’s requested instruction on the lesser offense of Assault and Battery. Jones v. State, 2006 OK CR 17, ¶ 6, 134 P.3d 150, 154; Harris v. State, 2004 OK CR 1, ¶ 50, 84 P.3d 731, 750. We find in Proposition II that the evidence presented at trial was sufficient to support Appellant’s conviction beyond a reasonable doubt. Head v. State, 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144. See also Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. Finally, the sentence imposed in this case was ordered by the trial court at Formal Sentencing to run concurrently with sentences imposed in Ottawa County District Court Case No. CF-2005-403. However the Judgment and Sentence did not reflect this. Accordingly, we remand this case to the District Court for an Order Nunc Pro Tunc correcting the Judgment and Sentence to correctly reflect the sentence as imposed.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. The case is REMANDED to the district court for an Order Nunc Pro Tunc correcting the Judgment and Sentence to correctly reflect the sentence as imposed at Formal Sentencing. 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.

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Footnotes:

1. Okla. Stat. tit. 22 § 1087
2. Jones v. State, 2006 OK CR 17, ¶ 6, 134 P.3d 150, 154
3. Harris v. State, 2004 OK CR 1, ¶ 50, 84 P.3d 731, 750
4. Head v. State, 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144
5. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04
6. Okla. Stat. tit. 22 § 1087
7. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 22 § 1064 (2011) - Nunc Pro Tunc Order

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:

• Jones v. State, 2006 OK CR 17, I 6, 134 P.3d 150, 154
• Harris v. State, 2004 OK CR 1, I 50, 84 P.3d 731, 750
• Head v. State, 2006 OK CR 44, I 6, 146 P.3d 1141, 1144
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04