Melvin Edward Dan v The State Of Oklahoma

F-2011-1047

Filed: Feb. 25, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Melvin Edward Dan appealed his conviction for robbery with a dangerous weapon, burglary in the first degree, and possession of a firearm after a previous juvenile adjudication. Conviction and sentence affirmed for the robbery and burglary, and Count 3 reversed. Judge A. Johnson dissented.

Decision

The Judgment and Sentence of the District Court of Tulsa County in Counts 1 and 2 is AFFIRMED. Count 3 is REVERSED and REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the one-person show-up in this case highly suggestive and tainted the at-trial identification?
• Did the evidence presented support the verdicts in the absence of the suggestive one-person show-up identifications?
• Do multiple convictions and punishments based on the same use of a firearm violate the prohibition against double jeopardy and double punishment?
• Did the admission of other crime evidence deprive Appellant of a fair trial?
• Was the jury misinstructed as to the available sentences for the charged crimes?
• Are the sentences imposed excessive?
• Did cumulative error deprive Appellant of a fair trial?

Findings

• The court did not err in admitting the suggestive one-person show-up identification, thus no plain error.
• The evidence was sufficient to support the convictions in Counts 1 and 2, but insufficient for Count 3, which was reversed.
• Propositions concerning double jeopardy and prosecutorial error were denied as moot.
• The jury instruction regarding sentencing for robbery with firearms was correct, and there was no error.
• The sentences imposed were not excessive and did not shock the court's conscience.
• No cumulative error requiring relief was found, aside from the reversal of Count 3.

F-2011-1047

Feb. 25, 2013

Melvin Edward Dan

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE:

Melvin Edward Dan, Appellant, was tried by jury and found guilty of Count 1, robbery with a dangerous weapon, in violation of 21 O.S.2001, § 801; Count 2, burglary in the first degree, in violation of 21 O.S.2001, § 1431; and Count 3, possession of a firearm after previous juvenile adjudication for a felony, in violation of 21 O.S.Supp.2009, § 1283(D); in the District Court of Tulsa County, Case No. CF-2010-2540. The jury sentenced Appellant to fifteen (15) years imprisonment in Count 1, ten (10) years imprisonment in Count 2, and six (6) years imprisonment in Count 3.1 The Honorable William J. Musseman, District Judge, pronounced judgment and sentence, ordering the sentences served consecutively. Mr. Dan appeals the following propositions of error:

I. Appellant must serve 85% of his sentences in Counts 1 and 2 before being eligible for consideration for parole. 21 O.S.Supp.2009, § 13.1(8) and (12).
1. The one-person show-up in this case was highly suggestive and tainted the at-trial identification;
2. Absent the identifications which stemmed from the suggestive one-person show-up, the evidence is insufficient to support the verdicts;
3. Multiple convictions and punishments based on the same use of a firearm violates the prohibition against double jeopardy and double punishment; either robbery with firearms or felony possession of a firearm must be dismissed;
4. The admission of other crime evidence deprived Appellant of a fair trial;
5. The jury was misinstructed as to the available sentences for the charged crimes;
6. The sentences are excessive;
7. Cumulative error deprived Appellant of a fair trial.

Appellant’s first proposition is that the in-court identifications by the eyewitnesses at trial were tainted by an unduly suggestive pre-trial show-up identification. By failing to object to the admission of this evidence at trial, Appellant waived all but plain error. Simpson v. State, 1994 OK CR 40, II 2, 12, 876 P.2d 690, 692, 695. To obtain relief for plain error, an appellant must show an actual error (i.e., deviation from a legal rule) that is plain or obvious; and that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. This Court will correct plain error when it seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Murphy v. State, 2012 OK CR 8, II 18, 281 P.3d 1283, 1290; 20 O.S.2011, § 3001.1. We find that the trial court’s admission of the show-up identifications and the subsequent in-court identifications was not error, and therefore not plain error. Young v. State, 2000 OK CR 17, II 30-33, 12 P.3d 20, 34. Proposition One is denied.

Appellant’s Proposition Two challenges the sufficiency of the evidence to support his convictions. We find that the evidence in Counts 1 and 2 meets the standard of legal sufficiency under Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203. However, in Count 3, the State failed to present sufficient evidence that Appellant was previously adjudicated a delinquent child for the commission of an offense, which would have constituted a felony offense if committed by an adult, as the charged crime is defined by 21 O.S.Supp.2009, § 1283(D)(emphasis added).2 The only evidence offered in support of the previous juvenile adjudication for a felony element in Count 3 was State’s Exhibit 19, which does not memorialize the nature of the offense.

2 We are cognizant that appellate counsel failed to raise this particular challenge to the sufficiency of the evidence in Count 3, and thus waived the error. Rule 3.5(A)(5), 22 O.S.Supp.2012, Ch. 18, App. The Court noticed the error in the course of its examination of Appellant’s Proposition Four. The failure of the State’s proof here is obvious from the record, and the conviction and punishment of six (6) years imprisonment, upon legally insufficient proof, would violate Appellant’s substantial statutory and constitutional rights. Lockhart v. State, 10 Okl.Cr. 582, 587, 139 P. 1156, 1158 (1914) (In a case like this, where the evidence is SO plainly insufficient to show the necessary elements of the offense charged, there should be no hesitation in reversing the judgment of conviction). Such a conviction also adversely impacts the fairness, integrity, and public reputation of judicial proceedings. Murphy, supra; 20 O.S.2011, § 3001.1. We therefore reverse this conviction for plain error.

3 Count 3 will be reversed. Kinchion U. State, 2003 OK CR 28, I 13, 81 P.3d 681, 685.

Appellant’s Proposition Three, challenging his convictions for robbery with firearms and possession of a firearm after previous juvenile adjudication for a felony as violative of 21 O.S.2001, § 11, and the constitutional prohibitions against double jeopardy; and Proposition Four, alleging error in the prosecutor’s statement to the jury concerning the nature of his prior juvenile adjudication, are moot, and therefore, denied.

In Proposition Five, Appellant claims the trial court’s instruction that the punishment for robbery with firearms was not less than five (5) years, nor more than life imprisonment, was erroneous. Counsel failed to object to the instruction at trial, and thus waived all but plain error. Simpson, 1994 OK CR 40, I 2, 876 P.2d 690, 692. Section 801 of Title 21 provides that any person convicted of robbery with a firearm shall suffer punishment by imprisonment for life in the State Penitentiary, or for a period of time not less than five (5) years, at the discretion of the court, or the jury trying the same. (emphasis added). Robbery with firearms is punishable by any term of years not less than five, or by life imprisonment. Rogers v. State, 1969 OK CR 251, I 5, 462 P.2d 313, 314 (finding the maximum years of punishment is [sic] unlimited under robbery with firearms statute). The instruction on this point was entirely accurate. There is no error, and no plain error. Proposition Five is denied.

In Proposition Six, Appellant challenges his sentences as excessive. Considering the facts and circumstances, the sentences imposed do not shock the Court’s conscience. Proposition Six is without merit. Rea U. State, 2001 OK CR 28, IT 5, 34 P.3d 148.

In Proposition Seven, Appellant seeks reversal or modification due to cumulative error. Appellant was erroneously convicted upon insufficient evidence in Count 3, which will be reversed. We find no other significant errors, and therefore no accumulation of errors requiring relief. Proposition Seven is denied. Mitchell v. State, 2010 OK CR 14, I 129, 235 P.3d 640, 665.

DECISION

The Judgment and Sentence of the District Court of Tulsa County in Counts 1 and 2 is AFFIRMED. Count 3 is REVERSED and REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 801
2. 21 O.S.2001, § 1431
3. 21 O.S.Supp.2009, § 1283(D)
4. 21 O.S.Supp.2009, § 13.1(8) and (12)
5. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203
6. 21 O.S.Supp.2009, § 1283(D)
7. Rule 3.5(A)(5), 22 O.S.Supp.2012, Ch. 18, App.
8. Lockhart v. State, 10 Okl.Cr. 582, 587, 139 P. 1156, 1158 (1914)
9. Murphy v. State, 2012 OK CR 8, II 18, 281 P.3d 1283, 1290
10. Kinchion v. State, 2003 OK CR 28, I 13, 81 P.3d 681, 685
11. Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 692
12. Rogers v. State, 1969 OK CR 251, I 5, 462 P.2d 313, 314
13. Rea v. State, 2001 OK CR 28, IT 5, 34 P.3d 148
14. Mitchell v. State, 2010 OK CR 14, I 129, 235 P.3d 640, 665

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a dangerous weapon
• Okla. Stat. tit. 21 § 1431 (2001) - Burglary in the first degree
• Okla. Stat. tit. 21 § 1283(D) (Supp. 2009) - Possession of a firearm after previous juvenile adjudication
• Okla. Stat. tit. 21 § 13.1(8) (Supp. 2009) - Parole eligibility
• Okla. Stat. tit. 20 § 3001.1 (2011) - Plain error
• Okla. Stat. tit. 21 § 11 (2001) - Firearm use in crimes

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:

• Simpson v. State, 1994 OK CR 40, II 2, 876 P.2d 690, 692
• Murphy v. State, 2012 OK CR 8, II 18, 281 P.3d 1283, 1290
• Young v. State, 2000 OK CR 17, II 30-33, 12 P.3d 20, 34
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203
• Lockhart v. State, 10 Okl.Cr. 582, 587, 139 P. 1156, 1158 (1914)
• Kinchion v. State, 2003 OK CR 28, I 13, 81 P.3d 681, 685
• Rogers v. State, 1969 OK CR 251, I 5, 462 P.2d 313, 314
• Rea v. State, 2001 OK CR 28, IT 5, 34 P.3d 148
• Mitchell v. State, 2010 OK CR 14, I 129, 235 P.3d 640, 665