Cristopher Lyn Kibbe v The State of Oklahoma

F-2011-1059

Filed: Oct. 25, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Cristopher Lyn Kibbe appealed his conviction for attempted second-degree burglary, second-degree burglary, and driving with a revoked license. His conviction and sentence were affirmed, but the sentence for attempted burglary was modified to ten years. Judge C. Johnson dissented. Kibbe was tried for trying to break into two places and driving without a valid license. The jury found him guilty and sentenced him to twenty years for the burglaries and a $100 fine for the driving charge. Kibbe raised several issues in his appeal, including unfair trial claims and errors in how evidence was handled. The court decided that there was no need to reverse the convictions, although they agreed the sentence for attempted burglary was too long. They reduced that sentence to ten years. The judges noted that while they found a couple of mistakes during the trial, they did not affect the overall fairness of the trial.

Decision

The Judgment and Sentence of the district court is AFFIRMED for Counts 2 and 3. The Judgment is AFFIRMED for Count 1, but the Sentence is MODIFIED to a term of imprisonment of ten years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there error in overruling the motion for mistrial after evidentiary harpoons by the prosecution rendered the trial fundamentally unfair?
• Did the convictions require reversal due to insufficient evidence to support them?
• Was there constitutional and reversible error in the trial court's exclusion of exculpatory statements made by Kibbe?
• Did errors in the admission of evidence require reversal of the convictions or modification of sentences?
• Is the sentence for attempted burglary in the second degree excessive as a matter of law and requiring modification?
• Were Kibbe's state and federal rights to due process and fair sentencing violated by the prosecutor's improper arguments and tactics?
• Does cumulative error require reversal of the convictions and sentences?

Findings

• the court did not err in denying the motion for mistrial
• the evidence was sufficient to support the convictions
• the trial court did not err in excluding certain exculpatory statements
• the errors in admission of evidence were not sufficient to require reversal
• the sentence for attempted burglary in the second degree was excessive and is modified to ten years
• the prosecutor did not violate due process rights or engage in misconduct
• cumulative error did not deny Kibbe a fair trial

F-2011-1059

Oct. 25, 2013

Cristopher Lyn Kibbe

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: Appellant Cristopher Lyn Kibbe was tried by jury in the District Court of Canadian County, Case No. CF-2010-220, for the crimes of Attempted Second Degree Burglary, After Former Conviction of Two or More Felonies in violation of 21 O.S.2001, § 1435 and 21 O.S.2001, § 42 (Count 1), Second Degree Burglary, After Former Conviction of Two or More Felonies in violation of 21 O.S.2001, § 1435 (Count 2), Driving with a Revoked License in violation of 47 O.S.Supp.2009, 6-303(B)(Count 3), and Conspiracy to Commit Second Degree Burglary, After Former Conviction of Two or More Felonies in violation of 21 O.S.2001, § 421 (Count 4). The Honorable Gary E. Miller, District Judge, presided at trial. Judge Miller affirmed Kibbe’s demurrer to Count 4 at the conclusion of the State’s case. The jury found Kibbe guilty on Counts 1, 2 and 3 and set punishment at twenty years imprisonment on Counts 1 and 2, and a $100 fine on Count 3. Judge Miller sentenced according to the jury’s verdict and ordered the sentences to be served concurrently. From this Judgment and Sentence Kibbe appeals, raising the following issues: (1) whether the trial court erred in overruling his motion for mistrial after evidentiary harpoons by the prosecution rendered his trial fundamentally unfair; (2) whether his convictions must be reversed with instructions to dismiss because they are based upon insufficient evidence; (3) whether constitutional and reversible error occurred when the trial court excluded exculpatory statements made by Kibbe and admitted only those that were inculpatory, forcing him into the unacceptable position of having to choose between exercising two constitutional rights; (4) whether errors in admission of evidence require reversal of his convictions or modification of his sentences; (5) whether his sentence for attempted burglary in the second degree is excessive as a matter of law and must be modified because the jury’s sentencing verdict is outside the statutory range; (6) whether his state and federal rights to due process and fair sentencing were violated by improper argument and tactics of the prosecutor; and (7) whether cumulative error requires reversal of his convictions and sentences. We find reversal is not required and affirm the Judgment and Sentence of the District Court on Counts 2 and 3. On Count 1 (attempted second degree burglary), we affirm the Judgment, but modify the Sentence to a term of imprisonment of ten years.

1. Kibbe claims that a police officer injected prejudicial evidentiary harpoons into the trial and that the trial judge erred by not ordering a mistrial in response to those harpoons. Some of the testimony was objected to and some was not. We find that the trial judge neither committed plain error nor abused his discretion by denying Kibbe’s motions for a mistrial.

2. Kibbe claims the evidence was insufficient to support his convictions because the testimony of his accomplice Charles King was not sufficiently corroborated and because there was no evidence of his intent to steal or commit a felony inside either of the two businesses he was accused of breaking into. We find that King’s testimony was sufficiently corroborated. We also find that there was sufficient evidence to establish facts from which the jury could reasonably infer the requisite intent.

3. Kibbe claims that the trial court erred by denying him the opportunity to inquire during cross-examination of a police officer about exculpatory statements Kibbe made to him and his partner. The trial transcript shows that the trial court allowed defense counsel to question the officers extensively about exculpatory statements made to them by Kibbe during the course of their interview with him. After all these exculpatory statements were allowed into evidence by the judge, it is not clear just what additional exculpatory statements were excluded by the judge’s ruling. Kibbe did not make an offer of proof identifying additional statements he hoped to elicit from the officers.

4. Kibbe claims he was denied a fair sentencing proceeding as a result of the prosecutor’s cross-examination of his wife. Kibbe did not object to the questions or answers about children and possible child support arrearages. He did, however, move for a mistrial on the grounds that the question about the child support lien was an evidentiary harpoon. While the trial court judge denied the motion, he did instruct the jury to disregard the question about child support because it was not relevant to the case.

5. Kibbe claims that his sentence on the attempted burglary charge (Count 1) is excessive because he was sentenced outside the statutory range for attempted second degree burglary after conviction of one felony. The State concedes the error, and agrees that Kibbe’s sentence on this count should be reduced from twenty years to ten years. Because the sentence imposed exceeds the statutory maximum, it is evident that the sentence was the result of plain or obvious legal error and that the error was a substantial violation of Kibbe’s due process right to be punished for his crime with a term of imprisonment within the statutory range.

6. Kibbe claims the prosecutor engaged in prosecutorial misconduct by: (1) introducing an evidentiary harpoon about back child support; (2) introducing improper penitentiary pack material as evidence; (3) raising improper argument about multiple prior convictions arising from a single transaction. As discussed above, the evidence of Kibbe’s back child support was introduced by Kibbe, not the prosecutor. The prosecutor’s questioning of a witness about it, therefore, cannot constitute an evidentiary harpoon or prosecutorial misconduct.

7. Kibbe claims that an accumulation of error denied him a fair trial. Although we have found two errors, one (improper pen pack evidence) is clearly harmless and the other (sentence length), will be fully remedied by modifying Kibbe’s sentence to ten years for Count 1. Accordingly, we find that in the aggregate, these errors did not render Kibbe’s trial fundamentally unfair or taint the jury’s verdict.

DECISION

The Judgment and Sentence of the district court is AFFIRMED for Counts 2 and 3. The Judgment is AFFIRMED for Count 1, but the Sentence is MODIFIED to a term of imprisonment of ten years.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. See Knighton v. State, 1996 OK CR 2, I 64, 912 P.2d 878, 894.
2. See Pink v. State, 2004 OK CR 37, I 15, 104 P.3d 584, 590.
3. See Cummings v. State, 1998 OK CR 45, I 20, 968 P.2d 821, 830.
4. See Rogers v. State, 1995 OK CR 8, I 32, 890 P.2d 959, 974.
5. See Sellers v. State, 1991 OK CR 41, I 31, 809 P.2d 676, 686.
6. See Morrison v. State, 1990 OK CR 33, 99, 792 P.2d 1189, 1192.
7. See Bellows v. State, 1976 OK CR 26, T5, 545 P.2d 1303, 1304.
8. See Simpson v. State, 1994 OK CR 40, q13, 876 P.2d 690, 695.
9. See McIntire v. State, 1946 OK CR 16, 166 P.2d 111.
10. See Ellis v. State, 1992 OK CR 45, I 28, 867 P.2d 1289, 1299.
11. See Pierce v. State, 1990 OK CR 7, I 10, 786 P.2d 1255, 1259.
12. See Hunter v. State, 2009 OK CR 17, I 9, 208 P.3d 931, 933.
13. See Marks v. State, 1981 OK CR 134, 91 4-5, 636 P.2d 349, 350-351.
14. See Stringfellow v. State, 1987 OK CR 233, I 5, 744 P.2d 1277, 1279-1280.
15. See Mornes v. State, 1988 OK CR 78, q13, 755 P.2d 91, 95.
16. See Hogan v. State, 2006 OK CR 27, I 38, 139 P.3d 907, 923.
17. See 21 O.S.2001, § 1436.
18. See 21 O.S.2001, § 42.
19. See 21 O.S.Supp.2002, § 51.1(A)(3).
20. See 22 O.S.2001, § 1066.
21. See 22 O.S.2001, § 928.1.

Oklahoma Statutes citations:

• 21 O.S. § 1435 - Attempted Burglary and Burglary
• 47 O.S. Supp. 2009 § 6-303(B) - Driving with a Revoked License
• 21 O.S. § 421 - Conspiracy to Commit a Crime
• 21 O.S. § 51.1(B) - Sentencing for Subsequent Felonies
• 21 O.S. § 1436 - Punishment for Second Degree Burglary
• 21 O.S. § 42 - Punishment for Attempt
• 22 O.S. § 1066 - Authority of Appellate Court
• 22 O.S. § 928.1 - Correcting Excessive Punishments

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:

• Knighton v. State, 1996 OK CR 2, I 64, 912 P.2d 878, 894
• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693
• Pink v. State, 2004 OK CR 37, I 15, 104 P.3d 584, 590
• Cummings v. State, 1998 OK CR 45, I 20, 968 P.2d 821, 830
• Rogers v. State, 1995 OK CR 8, I 32, 890 P.2d 959, 974
• Sellers v. State, 1991 OK CR 41, I 31, 809 P.2d 676, 686
• Morrison v. State, 1990 OK CR 33, 99, 792 P.2d 1189, 1192
• Lindsey v. State, 1983 OK CR 147, I 5, 671 P.2d 57, 59
• Bellows v. State, 1976 OK CR 26, I 5, 545 P.2d 1303, 1304
• McIntire v. State, 1946 OK CR 16, 166 P.2d 111
• Ellis v. State, 1992 OK CR 45, I 28, 867 P.2d 1289, 1299
• Pierce v. State, 1990 OK CR 7, I 10, 786 P.2d 1255, 1259
• Hunter v. State, 2009 OK CR 17, I 9, 208 P.3d 931, 933
• Marks v. State, 1981 OK CR 134, 91, 636 P.2d 349, 350-351
• Stringfellow v. State, 1987 OK CR 233, I 5, 744 P.2d 1277, 1279-1280
• Mornes v. State, 1988 OK CR 78, I 13, 755 P.2d 91, 95
• Hogan v. State, 2006 OK CR 27, I 38, 139 P.3d 907, 923
• Brewer v. State, 2006 OK CR 16, I 13, 133 P.3d 892, 895