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F-2012-170

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Darnell Lamar Wright v The State Of Oklahoma

F-2012-170

Filed: Feb. 4, 2014

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Darnell Lamar Wright appealed his conviction for robbery with a firearm, false personation, and assault while masked. The court affirmed his convictions and sentences for robbery with a firearm and false personation, but reversed the conviction for assault while masked. Judge A. Johnson dissented.

Decision

The Judgment and Sentence of the district court on Counts 1 and 3 is AFFIRMED. The Judgment and Sentence of the district on Count 6 is REVERSED with instructions to DISMISS. 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 the delivery and filing of this decision.

Issues

  • Was there fundamental error in the trial court's instruction regarding Appellant's parole eligibility on Counts 3 and 6?
  • Was there sufficient evidence to convict Appellant of falsely impersonating another to create liability?
  • Was the statute regarding false personation unconstitutionally vague, overbroad, or did it set up an unconstitutional presumption?
  • Did Appellant's convictions for robbery with a firearm and assault while masked violate the prohibition against double jeopardy?
  • Did prejudicial error in the admission of evidence deny Appellant a fair trial?
  • Were Appellant's rights to confrontation and a fair trial violated by the admission of cash not connected to him or the robbery?
  • Did cumulative error require reversal of Appellant's convictions and sentences?

Findings

  • the trial court did not err regarding the jury's question about parole eligibility
  • evidence was sufficient to support the conviction for false personation
  • the statute concerning false personation was not unconstitutionally vague or overbroad
  • Appellant’s convictions for robbery with a firearm and assault while masked violated Okla. Stat. tit. 21, § 11
  • no prejudicial error occurred in the admission of State's Exhibit No. 18
  • the trial court did not abuse its discretion in admitting State's Exhibit No. 1
  • cumulative error did not deny Appellant a fair trial

F-2012-170

Feb. 4, 2014

Darnell Lamar Wright

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LUMPKIN, JUDGE:

Appellant, Darnell Lamar Wright, was tried by jury and convicted of Robbery with a Firearm (Count 1) (21 O.S.2011, § 801); False Personation (Count 3) (21 O.S.2001, § 1531(4)); and Assault while Masked (Count 6) (21 O.S.2001, § 1303), After Former Conviction of Two or More Felonies, in the District Court of Tulsa County, Case Number CF-2010-599. The jury recommended as punishment imprisonment for life in Count 1, four (4) years in Count 3, and twenty (20) years in Count 6. The trial court sentenced accordingly and ordered the sentences to run consecutively. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of this appeal:

1. The magistrate sustained a demurrer to Counts 2, 4 and 5 at the close of the preliminary hearing.
2. Any person convicted of robbery with a firearm as defined in 21 O.S.2001, § 801 shall be required to serve not less than eighty-five percent of any sentence of imprisonment imposed prior to becoming eligible for consideration for parole. 21 O.S.Supp.2009, § 13.1(8).

I. The trial court committed fundamental error by issuing an inaccurate and confusing answer to the jury’s question regarding Appellant’s parole eligibility on Counts 3 and 6.

II. There was insufficient evidence upon which to convict Appellant of falsely impersonating another to create liability.

III. Appellant’s conviction for falsely personating another to create liability should be reversed because the statute, as instructed on by the trial court, is unconstitutionally vague, overbroad, and set up an unconstitutional presumption.

IV. Appellant’s convictions of Count 1 and 6 violate Okla. Stat. tit. 21, § 11, as well as the State and federal ban on double jeopardy.

V. Prejudicial error in the admission of evidence denied Appellant of a fair trial.

VI. Appellant’s rights to confrontation and a fair trial were violated by the erroneous admission of cash never connected to Appellant or the robbery.

VII. Cumulative error requires reversal of Appellant’s convictions and sentences.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts and briefs of the parties, we have determined that Appellant is entitled to relief as to Proposition Four, but otherwise affirm Appellant’s convictions and sentences.

In Proposition One, Appellant challenges the trial court’s supplemental instruction that the jurors were not to consider parole in response to the jury’s question concerning Appellant’s parole eligibility as to the offenses of false personation and assault while masked. Appellant failed to challenge the instruction at trial, thus, he has waived appellate review of this claim for all but plain error.

We review Appellant’s claim for plain error pursuant to the test set forth in Hogan v. State, 2006 OK CR 19, 139 P.3d 907. To be entitled to relief for plain error, a defendant must show: (1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning that the error affected the outcome of the proceeding.

If these elements are met, this Court will correct plain error only if the error ‘seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings’ or otherwise represents a miscarriage of justice.

We find that Appellant has not shown the existence of an actual error. The jury instructions, as a whole, accurately stated the applicable law. The trial court properly informed the jury of the statutory requirement that a defendant must serve 85% of any sentence for the offense of robbery with a firearm before he or she can be considered for parole. Because the offenses of false personation and assault while masked are not subject to the 85% Rule, the issue of parole eligibility was not proper for the jury’s consideration as to those offenses. Taken in context, the supplemental instruction did not contradict the instruction on the 85% Rule and the instructions were not confusing.

The instruction on the 85% Rule explicitly stated it applied to the offense of robbery with a firearm. The trial court’s supplemental instruction explicitly addressed the jury’s question concerning Appellant’s parole eligibility as to the offenses of false personation and assault while masked. There was no error, thus plain error did not occur. Proposition One is denied.

In Proposition Two, Appellant challenges the sufficiency of the evidence supporting his conviction for false personation in Count 3. Reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt.

Proposition Two is denied.

In Proposition Three, Appellant challenges the constitutionality of the statutory provision that establishes the offense of false personation. Appellant failed to challenge the constitutionality of 21 O.S.2001, § 1531(4) before the trial court. Thus, he has waived appellate review of his claim for all but plain error. We review Appellant’s claim for plain error pursuant to the test set forth in Hogan v. State. Appellant has not overcome the presumption of constitutionality and shown the existence of an actual error.

As Appellant has not shown that the statute reaches a substantial amount of constitutionally protected conduct, we reject his overbreadth challenge. We have no difficulty concluding that § 1531(4) gives fair notice of the proscribed activity and is not void for vagueness on its face.

As § 1531(4) neither creates any evidentiary presumption nor requires the defendant to prove the existence of a fact or be guilty of a greater offense, we find that the statutory provision does not unconstitutionally shift the burden of proof onto the accused. There is no error, thus plain error did not occur. Proposition Three is denied.

In Proposition Four, Appellant contends that his convictions for robbery with a firearm and assault while masked violate 21 O.S.2001, § 11. We agree.

Reviewing the evidence we find that the offenses of robbery with a firearm and assault while masked were not a series of separate and distinct crimes. As the evidence does not reveal that Appellant committed an assault with a dangerous weapon, while masked, at a different time or upon a different victim than the robbery with a firearm, we find that the two offenses truly arose out of one act. Therefore, we reverse Appellant’s conviction for assault while masked in Count 6.

In Proposition Five, Appellant challenges the trial court’s admission of State’s Exhibit No. 18. Although Appellant objected to the admission of this video at trial, he failed to raise the challenge that he now asserts on appeal. Therefore, we find that he has waived appellate review of this issue for all but plain error. Reviewing Appellant’s claim for plain error pursuant to the test set forth in Hogan v. State, we find that Appellant has not shown the existence of an actual error.

Although photographs of an accused in pretrial restraints are inherently prejudicial, we find that, under the unique circumstances of this case, the probative value of the video was not substantially outweighed by its prejudicial effect. The video held excellent probative value. It corroborated the witnesses’ testimony and depicted the crime scene. There is no error, thus plain error did not occur. Proposition Five is denied.

In Proposition Six, Appellant challenges the trial court’s admission of State’s Exhibit No. 1, the currency recovered from the pockets of Appellant’s girlfriend. We find that the trial court did not abuse its discretion in the admission of the currency recovered from Daffney Gibbs’ pockets.

As Gibbs was discovered at the scene of the robbery, in close proximity to Appellant, and had in her possession torn bills which matched those found on the ground and in Appellant’s possession, we find that the currency was sufficiently connected to the charged offense. We further find that the probative value of the currency found on Gibbs’ person was not substantially outweighed by its prejudicial effect.

We further find that Appellant was not denied a meaningful opportunity to present a complete defense. Appellant was not denied the opportunity to call Gibbs as a witness or otherwise respond to the State’s introduction of the currency. Proposition Six is denied.

In Proposition Seven, Appellant contends that the combined errors in his trial denied him the right to a constitutionally guaranteed fair trial. We find Appellant was not denied a fair trial by cumulative error. However, this sole error cannot support an accumulation of error claim. Therefore, no new trial or modification of sentence is warranted and this assignment of error is denied.

DECISION

The Judgment and Sentence of the district court on Counts 1 and 3 is AFFIRMED. The Judgment and Sentence of the district on Count 6 is REVERSED with instructions to DISMISS.

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 the delivery and filing of this decision.

Footnotes:

  1. 2 The magistrate sustained a demurrer to Counts 2, 4 and 5 at the close of the preliminary hearing.
  2. 21 O.S.Supp.2009, § 13.1(8).
  3. Burgess U. State, 2010 OK CR 25, "I 21, 243 P.3d 461, 465;
  4. Romano v. State, 1995 OK CR 74, " 80, 909 P.2d 92, 120.
  5. Eizember v. State, 2007 OK CR 29, I 111, 164 P.3d 208, 236.
  6. Florez v. State, 2010 OK CR 21, "I 4, 239 P.3d 156;
  7. Anderson v. State, 2006 OK CR 6, "I 24, 130 P.3d 273, 282-83;
  8. Skinner v. State, 2009 OK CR 19, I 41, 210 P.3d 840, 854-55;
  9. Watts v. State, 2008 OK CR 27, "I 9, 194 P.3d 133, 137;
  10. Scott v. State, 2005 OK CR 3, I 6, 107 3 P.3d 605, 606-07.
  11. But Cf. Lewis v. State, 1998 OK CR 24, 99 22-23, 970 P.2d 1158, 1168.
  12. Anderson U. State, 2010 OK CR 26, I 11, 252 P.3d 211, 213;
  13. Frederick V. State, 1983 OK CR 114, " 6, 667 P.2d 988, 991.
  14. State v. Hall, 2008 OK CR 15, I 23, 185 P.3d 397, 403;
  15. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982);
  16. Howard v. City of Tulsa, 1986 OK cR 5, "I 5, 8, 712 P.2d 797, 798;
  17. Profit v. City of Tulsa, 1978 OK CR 9, II 8, 574 P.2d 1053, 1055.
  18. Wilkins v. State, 1999 OK CR, IT 8, 985 P.2d 184, 186.
  19. Mullaney v. Wilbur, 421 U.S. 684, 692, 703-04, 95 S.Ct. 1881, 1886, 1892, 44 L.Ed.2d 508 (1975);
  20. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970);
  21. Birdine v. State, 2004 OK CR 7, I 3, 85 P.3d 284, 285, quoting Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985).
  22. Watts, 2008 OK CR 27, 9 16, 194 P.3d 133, 139;
  23. Davis v. State, 1999 OK CR 48, 11 12-13, 993 P.2d 124, 126-27.
  24. Logsdon v. State, 2010 OK CR 7, II 17- 18, 231 P.3d 1156, 1164-65;
  25. Ziegler U. State, 1980 OK CR 23, I 10, 610 P.2d 251, 254;
  26. Inst. No. 5-50, OUJI-CR(2d) (Supp.2010).
  27. Marshall v. State, 2010 OK CR 8, I 24, 232 P.3d 467, 474;
  28. Neloms U. State, 2012 OK CR 7, "I 35, 274 P.3d 161, 170.
  29. Harmon v. State, 2011 OK CR 6, II 50-51, 248 P.2d 918, 937.
  30. Postelle v. State, 2011 OK CR 30, I 31, 267 P.3d 114, 131, cert. denied, U.S. , 133 S.Ct. 282, 184 L.Ed.2d 165 (2012);
  31. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986).
  32. Lott v. State, 2004 OK CR 27, I 81, 98 P.3d 318, 342.
  33. Ashinsky v. State, 1989 OK CR 59, I 31, 780 P.2d 201, 209;
  34. Bechtel v. State, 1987 OK CR 126, 738 P.2d 559, 561;
  35. Hope v. State, 1987 OK CR 24, "I 12, 732 P.2d 905, 908.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 801 - Robbery with a Firearm
  • Okla. Stat. tit. 21 § 1531(4) - False Personation
  • Okla. Stat. tit. 21 § 1303 - Assault while Masked
  • Okla. Stat. tit. 21 § 11 - Double Jeopardy
  • Okla. Stat. tit. 21 § 13.1(8) - Parole Eligibility

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:

  • Burgess v. State, 2010 OK CR 25, I 21, 243 P.3d 461, 465
  • Romano v. State, 1995 OK CR 74, I 80, 909 P.2d 92, 120
  • Eizember v. State, 2007 OK CR 29, I 111, 164 P.3d 208, 236
  • Florez v. State, 2010 OK CR 21, I 4, 239 P.3d 156
  • Anderson v. State, 2006 OK CR 6, I 24, 130 P.3d 273, 282-83
  • Skinner v. State, 2009 OK CR 19, I 41, 210 P.3d 840, 854-55
  • Watts v. State, 2008 OK CR 27, I 9, 194 P.3d 133, 137
  • Scott v. State, 2005 OK CR 3, I 6, 107 P.3d 605, 606-07
  • Lewis v. State, 1998 OK CR 24, I 22-23, 970 P.2d 1158, 1168
  • Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
  • Barkus v. State, 1996 OK CR 45, II 3-4, 926 P.2d 312, 312-13
  • Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
  • Anderson v. State, 2010 OK CR 26, I 11, 252 P.3d 211, 213
  • Frederick v. State, 1983 OK CR 114, I 6, 667 P.2d 988, 991
  • State v. Hall, 2008 OK CR 15, I 23, 185 P.3d 397, 403
  • Hilliary v. State, 1981 OK CR 78, I 12, 630 P.2d 791, 794
  • Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)
  • Howard v. City of Tulsa, 1986 OK CR 5, I 5, 8, 712 P.2d 797, 798
  • Wilkins v. State, 1999 OK CR, I 8, 985 P.2d 184, 186
  • Mullaney v. Wilbur, 421 U.S. 684, 692, 703-04, 95 S.Ct. 1881, 1886, 1892, 44 L.Ed.2d 508 (1975)
  • In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970)
  • Birdine v. State, 2004 OK CR 7, I 3, 85 P.3d 284, 285
  • Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 690, 701
  • Bechtel v. State, 1987 OK CR 126, 738 P.2d 559, 561
  • Hope v. State, 1987 OK CR 24, I 12, 732 P.2d 905, 908
  • Davis v. State, 1999 OK CR 48, II 12-13, 993 P.2d 124, 126-27
  • Logsdon v. State, 2010 OK CR 7, II 17-18, 231 P.3d 1156, 1164-65
  • Ziegler v. State, 1980 OK CR 23, I 10, 610 P.2d 251, 254
  • Marshall v. State, 2010 OK CR 8, I 24, 232 P.3d 467, 474
  • Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
  • Harmon v. State, 2011 OK CR 6, II 50-51, 248 P.2d 918, 937
  • Postelle v. State, 2011 OK CR 30, I 31, 267 P.3d 114, 131
  • Washington v. State, 1999 OK CR 22, 26, 989 P.2d 960, 971
  • Dodd v. State, 2004 OK CR 31, II 34-36, 100 P.3d 1017, 1031
  • Lott v. State, 2004 OK CR 27, I 81, 98 P.3d 318, 342
  • Ashinsky v. State, 1989 OK CR 59, I 31, 780 P.2d 201, 209

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