Lonnie Wayne Tate v The State Of Oklahoma

F-2011-460

Filed: Aug. 13, 2012

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Lonnie Wayne Tate appealed his conviction for various offenses related to a police chase, including Attempting to Elude a Police Officer, Running a Roadblock, and Assault and Battery on a Police Officer. His convictions resulted in a total sentence of several years in prison and fines. The court affirmed some of his convictions and sentencing, but reversed and dismissed two of the counts related to obstructing and resisting an officer because they were ruled as double punishment for the same act. Judge Lumpkin dissented on this decision.

Decision

The Judgment and Sentence of the District Court of Washington County is AFFIRMED in part and REVERSED in part. Tate's CONVICTIONS and SENTENCES in Case No. CF-2010-71 are hereby AFFIRMED. In Case No. CM-2010-128, Tate's convictions for Obstructing an Officer (Count I) and Resisting an Officer (Count III) are REVERSED AND REMANDED to the trial court with instructions to DISMISS. Tate's conviction for Speeding in Excess of Lawful Maximum Limit (Count II) is AFFIRMED, but the fine is MODIFIED to $35.00.

Issues

• Was there a violation of double jeopardy due to multiple convictions stemming from a single act of fleeing from police?
• Did the evidence support the convictions for Running a Roadblock, given the absence of established roadblocks?
• Was the evidence insufficient to support the conviction for Attempting to Elude a Police Officer?
• Must the conviction for Speeding in Excess of Lawful Maximum Limit be vacated due to improper charging?

Findings

• the court erred in dismissing Counts I and III due to double jeopardy violations
• the evidence was sufficient to sustain the convictions for Running a Roadblock
• the evidence was sufficient to support the conviction for Attempting to Elude a Police Officer
• the jury was properly instructed regarding Speeding in Excess of Lawful Maximum Limit, but the fine was modified

F-2011-460

Aug. 13, 2012

Lonnie Wayne Tate

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Lonnie Wayne Tate was tried by jury and convicted of Attempting to Elude a Police Officer, in violation of 21 O.S.2001, § 540(A) (Count I); Running a Roadblock, in violation of 21 O.S.2001, § 540(B) (Counts II, IV, and V); and Assault and Battery Upon Police Officer, in violation of 21 O.S.2001, § 649 (Count VI), in the District Court of Washington County, Case No. CF-2010-71. Tate was acquitted of Count III, Running a Roadblock, in violation of 21 O.S.2001, § 540(B). On the same day, the jury also heard and convicted Tate of Obstructing an Officer in violation of 21 O.S.2001, § 540 (Count I); Speeding in Excess of Lawful Maximum Limit in violation of 47 O.S.Supp.2008, § 11-801 (B) (Count II); and Resisting an Officer in violation of 21 O.S.2001, § 268 (Count III), in Washington County District Court Case No. CM-2010-128.

In accord with the jury’s recommendation in Case No. CF-2010-71, the Honorable Curtis L. DeLapp sentenced Tate to two (2) years imprisonment on Count I; a $1,000 fine on Count II; a $5,000 fine on Count IV; one (1) year imprisonment and a $1,000 fine on Count V; and two (2) years imprisonment on Count VI. Counts I, V, and VI were ordered to run consecutively. Also in accord with the jury’s recommendation in Case No. CM-2010-128, Judge DeLapp sentenced Tate to a $250 fine on Count I; a $200 fine on Count II, and a $250 fine on Count III. Tate appeals from these convictions and sentences and raises four propositions of error in support of his appeal.

I. Because Mr. Tate engaged in a single act of fleeing from police, his conviction for eight separate offenses violated the prohibitions against double jeopardy and double punishment.

II. The evidence was insufficient to sustain the convictions for Running a Roadblock, as police never established roadblocks in this case.

III. The State’s evidence was insufficient to support Mr. Tate’s conviction for Aggravated Attempt to Elude a Police Officer.

IV. Mr. Tate’s conviction for Driving Too Fast for Conditions must be vacated because he was not charged with this offense.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that in CM-2010-128, Count I and III must be reversed with instructions to dismiss. The sentence on Count II should be modified to conform to the fine set by statute, $35.00. 47 O.S.Supp.2008, § 11-801(G). No other relief is required.

For the first time on appeal, Tate argues that his eight convictions are actually separate punishments for one single act, fleeing the police, in violation of 21 O.S.2011, § 11 and the double jeopardy prohibitions. Okla. Const. art. II, § 21; U.S. Const. amend. V, XIV. We review this claim for plain error only. Logsdon v. State, 2010 OK CR 7, ¶ 15, 231 P.3d 1156, 1164; 20 O.S.2011, § 3001.1. Section 11 prohibits prosecution for multiple crimes arising out of one act unless the Legislature clearly intended otherwise. In analyzing claims under Section 11, we focus on the relationship between the crimes. Davis v. State, 1999 OK CR 48, ¶¶ 11-13, 993 P.2d 124, 126-27 (citation omitted). There is no prohibition against punishing a series of separate and distinct crimes committed during a course of conduct. Ziegler v. State, 1980 OK CR 23, ¶¶ 9-10, 610 P.2d 251, 253-54. In analyzing double jeopardy claims, we apply the Blockburger test, examining whether each offense requires proof of an additional fact not required by the other. Watts v. State, 2008 OK CR 27, ¶ 16, 194 P.3d 133, 138-139 (citing Blockburger v. United States, 248 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)).

We find, in CM-2010-128, punishment for Count I, Obstructing an Officer, and Count III, Resisting an Officer, violates Section 11. The remaining counts in both cases do not offend Section 11 or principles of double jeopardy. First, we conclude that the Obstructing an Officer and Attempting to Elude a Police Officer charges are duplicative, arising from one act: eluding. Once Tate failed to yield to Police Officer Bullen’s lights and sirens, Tate was engaging in the act of eluding police. The State attempts to isolate Tate’s actions during the course of his flight, when he was forced to stop at the intersection of Frank Phillips Boulevard and Cherokee. Tate’s refusal to heed the orders of police to exit his car at that intersection, and then his resumed flight, was a continuation of his act of eluding. Tate did obstruct the officers in their attempt to halt his flight, but this act was part and parcel of his ongoing flight. This error was plain and obvious and affected Tate’s substantial rights. Simpson v. State, 1994 OK CR 40, ¶¶ 3, 11, 23, 876 P.2d 690, 694, 695, 698; 20 O.S.2011, § 3001.1. Because the error resulted in double punishment for one act, we find relief warranted.

Section 11 also bars the punishment of Tate for both the crimes of Resisting an Officer and Felony Assault and Battery Upon a Police Officer. When Tate’s car was finally disabled, several officers, including Bullen and Shelts, struggled to remove Tate from his car. Tate resisted forcefully. As Bullen tried to gain control of Tate through the driver’s side window, Tate grabbed Bullen’s arm and tried to pull Bullen toward the car. Shortly thereafter, Tate was pulled out of the passenger side of the car and placed on the ground. Officer Shelts testified that Tate continued to resist arrest as he lay on the ground; kicking and flailing his arms. Shelts moved to restrain Tate’s legs and was kicked in the groin area. Through the cooperation of several officers, Tate was soon handcuffed. The kicking of Shelts was part and parcel of the conduct that supported the Resisting an Officer charge. Punishing Tate for both crimes violates Section 11. See Ajeani v. State, 1980 OK CR 29, ¶¶ 5-7, 610 P.2d 820, 823 (dismissing assault charge where the same conduct supported both resisting and assault charges). We further find that this error was plain and obvious and affected Tate’s substantial rights. Simpson v. State, 1994 OK CR 40, ¶¶ 3, 11, 23, 876 P.2d at 694, 695, 698; 20 O.S.2011, § 3001.1.

We reject Tate’s claim that Section 11 is violated by the punishment of both Assault and Battery Upon Police Officer and Attempting to Elude a Police Officer. At most, they are separate crimes which [are] only tangentially relate[d] to one or more crimes committed during a continuing course of conduct. Davis, 1999 OK CR 48, ¶ 13, 993 P.2d at 127. When Tate’s car was disabled, the flight was over. The exercise of force against officers to resist arrest was a separate act. There is no plain error. Nor is punishing Tate for both Attempting to Elude a Police Officer and Assault and Battery Upon Police Officer a violation of double jeopardy. Assault and battery requires a battery. Eluding requires that the defendant receive a visual or audible warning to stop. Watts, 2008 OK CR 27, ¶ 16, 194 P.3d at 138-139; Blockburger, 248 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. 306. There is no plain error.

Finally, Tate argues that the acts of speeding and running roadblocks were not distinct from the act of eluding, and therefore punishment for each offense violates Section 11. Because Tate was speeding prior to his attempt to elude the police, speeding is rightfully charged and punished separately. There is no plain error. The Legislature clearly intended Running a Roadblock to be a separate crime. See 21 O.S.2001, § 540B – Roadblocks (emphasis added) (Any operator of a motor vehicle approaching such roadblock has a duty to stop at the roadblock and the willful violation hereof shall constitute a separate offense from any other offense committed.). It is within the province of the Legislature to ensure that this offense is punished as a separate crime. Davis, 1999 OK CR 48, ¶ 13, 993 P.2d at 126-27. There is no plain error. Nor is there a double jeopardy violation as a result of Tate’s conviction for Attempting to Elude a Police Officer, Running a Roadblock and Speeding. Felony eluding requires that Tate put others in danger by his actions. Running a Roadblock requires the establishment of a roadblock. Speeding requires acceleration above the posted speed limit. Watts, 2008 OK CR 27, ¶ 16, 194 P.3d at 138-139; Blockburger, 248 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. 306. There is no plain error.

Thus, Proposition I is denied in part and granted in part. Count I, Obstructing an Officer, and Count III, Resisting an Officer, in Case No. CM-2010-128, must be dismissed because punishment for these acts violates Section 11. 21 O.S.2011, § 11. The errors were plain and affected Tate’s substantial rights. Simpson v. State, 1994 OK CR 40, ¶¶ 3, 11, 23, 876 P.2d at 694, 695, 698; 20 O.S.2011, § 3001.1. The remaining counts in both cases do not violate Section 11 or principles of double jeopardy. 21 O.S.2011, § 11; Okla. Const. art. II, § 21; U.S. Const. amend. V, XIV.

In Proposition II, Tate challenges the sufficiency of the evidence supporting the three counts of Running a Roadblock. The elements of Running a Roadblock are: 1) A driver of a motor vehicle; 2) While attempting to elude the officer; 3) Willfully fails to stop at a roadblock or passes by or through such roadblock without receiving permission from a peace officer in attendance thereto. 21 O.S.2001, § 540B. A roadblock is a barricade, sign, standing motor vehicle, or similar obstacle temporarily placed upon or adjacent to a public street with one or more peace officers in attendance thereof directing each operator of approaching motor vehicles to stop or proceed. Id. Tate argues that the roadblock was legally insufficient because no officer stood on the road directing traffic. We disagree. In each roadblock, a manned patrol car was in the road, partially obstructing the traffic flow, with lights and sirens activated. To require police to stand on the road, directing traffic, during the course of a high speed chase would be to place police in grave and unnecessary danger. Viewing the evidence in the light most favorable to the State and accepting all inferences that support the verdict, we find sufficient evidence for a rational jury to convict Tate of three counts of Running a Roadblock. Warner v. State, 2006 OK CR 40, ¶ 35, 144 P.3d 838, 863; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. This Proposition is denied.

In Proposition III, Tate argues that there was insufficient evidence to support his felony conviction for Attempting to Elude a Police Officer. Specifically, Tate claims that there was no evidence that anyone was actually endangered by his actions. Tate’s claim, however, minimizes the evidence supporting the verdict and fails to recognize the seriousness of his actions. Viewing the evidence in the light most favorable to the State, we find that there is ample, competent evidence to support the conclusion of the jury that officers and/or other drivers were endangered by Tate’s actions. Warner, 2006 OK CR 40, ¶ 35, 144 P.3d at 863; Spuehler, 1985 OK CR 132, ¶ 7, 709 P.2d at 203-04. This Proposition is denied.

Finally, in Proposition IV, Tate argues that he was not properly charged and the jury was not properly instructed on Count II of CM-2010-128, Speeding in Excess of Lawful Maximum Limit, 47 O.S.Supp.2008, § 11-801(B). Tate argues two infirmities in his conviction. First, the State never alleged how fast Tate was traveling, as it is required to do pursuant to 47 O.S.2001, § 11-807. Tate did not object to this failure at trial, so we review for plain error. 20 O.S.2001, § 3001.1. Tate does raise an actual, obvious error. He cannot, however, demonstrate that the error affected his substantial rights because Tate had notice of the alleged speeding violation in discovery, specifically the affidavit of arrest. There is no plain error. Simpson v. State, 1994 OK CR 40, ¶¶ 3, 11, 23, 876 P.2d at 694, 695, 698; 20 O.S.2011, § 3001.1.

Second, Tate argues that the trial court erroneously instructed the jury that Speeding in Excess of Lawful Maximum Limit carried a fine of not less than $10 or more than $200. The State concedes that 47 O.S.Supp.2008, § 11-801(G) dictates the fine for any person convicted of speeding up to 20 miles over the speed limit is $35.00. Tate was fined $200.00. We modify that fine, to $35.00.

DECISION

The Judgment and Sentence of the District Court of Washington County is AFFIRMED in part and REVERSED in part. Tate’s CONVICTIONS and SENTENCES in Case No. CF-2010-71 are hereby AFFIRMED. In Case No. CM-2010-128, Tate’s convictions for Obstructing an Officer (Count I) and Resisting an Officer (Count III) are REVERSED AND REMANDED to the trial court with instructions to DISMISS. Tate’s conviction for Speeding in Excess of Lawful Maximum Limit (Count II) is AFFIRMED, but the fine is MODIFIED to $35.00.

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Footnotes:

1. 21 O.S.2001, § 540(A)
2. 21 O.S.2001, § 540(B)
3. 21 O.S.2001, § 649
4. 47 O.S.Supp.2008, § 11-801(B)
5. 47 O.S.Supp.2008, § 11-801(G)
6. 21 O.S.2011, § 11
7. Okla. Const. art. II, § 21
8. U.S. Const. amend. V, XIV
9. 20 O.S.2011, § 3001.1
10. 21 O.S.2011, § 11
11. 20 O.S.2011, § 3001.1
12. 21 O.S.2001, § 540B
13. 47 O.S.2001, § 11-807

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 540(A) (2001) - Attempting to Elude a Police Officer
• Okla. Stat. tit. 21 § 540(B) (2001) - Running a Roadblock
• Okla. Stat. tit. 21 § 649 (2001) - Assault and Battery Upon Police Officer
• Okla. Stat. tit. 21 § 268 (2001) - Resisting an Officer
• Okla. Stat. tit. 47 § 11-801(B) (Supp. 2008) - Speeding in Excess of Lawful Maximum Limit
• Okla. Stat. tit. 47 § 11-801(G) (Supp. 2008) - Penalty for Speeding
• Okla. Stat. tit. 21 § 11 (2011) - Prohibition Against Multiple Punishments
• Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error Review
• Okla. Const. art. II, § 21 - Double Jeopardy

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:

• Logsdon v. State, 2010 OK CR 7, I 15, 231 P.3d 1156, 1164
• Davis v. State, 1999 OK CR 48, T11-13, 993 P.2d 124, 126-27
• Ziegler v. State, 1980 OK CR 23, II 9-10, 610 P.2d 251, 253-54
• Watts v. State, 2008 OK CR 27, II 16, 194 P.3d 133, 138-139
• Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694, 695, 698
• Warner v. State, 2006 OK CR 40, I 35, 144 P.3d 838, 863
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Ajeani v. State, 1980 OK CR 29, II 5-7, 610 P.2d 820, 823
• Parker v. State, 1996 OK CR 19, 19 23-24, 917 P.2d 980, 986
• Kinchion v. State, 2003 OK CR 28, I 11, 81 P.3d 681, 685