Dominic Ty-Rell Thompson v The State Of Oklahoma

F-2015-933

Filed: Sep. 16, 2016

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Dominic Ty-Rell Thompson appealed his conviction for Unauthorized Use of a Motor Vehicle and Knowingly Concealing Stolen Property. His conviction and sentence were six years in prison for the motor vehicle charge and eight years for each of the two counts of concealing stolen property. However, the sentences for the two concealing counts were ordered to run together and after the vehicle charge. Judge Russell C. Vaclaw presided over the trial. Thompson raised several issues on appeal, including arguments that he was punished twice for one action concerning the stolen property. The court agreed that it was wrong to have two counts when it involved only one act of concealment and reversed the second count, telling the lower court to dismiss it. They found that the evidence was strong enough to uphold the vehicle charge and ruled that the jury's decisions on sentencing and fines were correct. There was no abuse of discretion in how the judge ordered the prison time. The judgment was mostly affirmed, except for the one count which was reversed. Judge Lumpkin concurred in the decision with some agreement on the outcomes.

Decision

The Judgment and Sentence of the district court is AFFIRMED as to Counts 1 and 2. The Judgment and Sentence on Count 3 is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there a violation of constitutional and statutory protections against double jeopardy and double punishment for the convictions of knowingly concealing stolen property?
• did the evidence presented at trial support the convictions on Counts 1 and 3?
• did the cumulative effect of prosecutorial misconduct deny Thompson a fair trial?
• did the trial court violate Thompson's due process rights by imposing a fine?
• did the trial court abuse its discretion by ordering the sentences to be served consecutively?
• did cumulative errors deprive Thompson of a fair trial and a reliable outcome?

Findings

• the trial court erred in denying the motion to consolidate the two counts of concealing stolen property
• the evidence was sufficient to sustain the conviction for unauthorized use of a vehicle
• the prosecutorial misconduct did not deprive Thompson of a fair trial
• the trial court's assessment of fines was not error
• the trial court did not abuse its discretion in ordering sentences to run consecutively
• there were no errors that merit relief

F-2015-933

Sep. 16, 2016

Dominic Ty-Rell Thompson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, JUDGE:

Appellant Dominic Ty-Rell Thompson was tried by jury in the District Court of Washington County, Case No. CF-2014-526 and convicted of Unauthorized Use of a Motor Vehicle (Count 1), in violation of 47 O.S.2011, § 4-102; and Knowingly Concealing Stolen Property (Counts 2 and 3), in violation of 21 O.S.2011, § 1713. The jury assessed punishment at six years imprisonment on Count 1 and eight years imprisonment on each of Counts 2 and 3. The Honorable Russell C. Vaclaw, Associate District Judge, who presided at trial, sentenced Thompson accordingly and ordered the sentences on Counts 2 and 3 to run concurrently with one another and consecutively to the sentence in Count 1. The trial court also sentenced him to a $100.00 fine on each of Counts 1 through 3. Thompson appeals, raising the following issues:

1. The jury acquitted Thompson of Count 4 – Possession of a Firearm After Former Conviction of a Felony.
(1) whether his convictions and sentences for knowingly concealing stolen property in Counts 2 and 3 violate his constitutional and statutory protections against double jeopardy and double punishment;
(2) whether the evidence was sufficient to convict him on Counts 1 and 3;
(3) whether the cumulative effect of prosecutorial misconduct denied him a fair trial;
(4) whether the trial court violated his due process rights by imposing a fine;
(5) whether the trial court abused its discretion in ordering his sentences to be served consecutively; and
(6) whether the cumulative errors deprived him of a fair trial and a reliable outcome.

We find reversal is not required on Counts 1 and 2 and we affirm the Judgment and Sentence of the district court on those counts. The Judgment and Sentence on Count 3 is reversed with instructions to dismiss.

1. Thompson was charged with two counts of knowingly concealing stolen property because items found in the gray Malibu had been stolen from two different people on two different dates. Defense counsel argued below that the two counts should be consolidated because there was only one alleged act of knowingly concealing stolen property. He claimed that failure to merge the two counts would violate Thompson’s constitutional protection against Double Jeopardy and his statutory protection against double punishment. This request was denied and Thompson argues on appeal that this ruling was error. This allegation of error was preserved for consideration on appeal. In support of his argument Thompson cites to Antrobus v. State, 1995 OK CR 41, ¶ 6, 900 P.2d 1003, 1004, where this Court held:

[T]he crime of Concealing Stolen Property in Oklahoma requires a defendant to have knowledge that the property was stolen and have the intent to deprive the owner of that property permanently. Therefore, in order to prove separate counts of concealing stolen property, the State must be able to establish the defendant had knowledge that the stolen property came from multiple sources. Simply establishing that the concealed property belonged to more than one owner or was obtained from multiple thefts is not enough to infer this knowledge. However, when this information is combined with other relevant facts, such as the defendant received the property on different dates or was actually involved in the thefts, it is proper to conclude the defendant had knowledge that the property came from multiple sources.

As in Antrobus, Thompson was charged with multiple counts of concealing stolen property simply because the various concealed stolen items belonged to different property owners; there was no evidence that Thompson was involved in the burglaries nor was there evidence showing when he received the stolen property. Under these circumstances, Thompson argues, and the State agrees, the trial court erred in denying Thompson’s motion to consolidate the two counts of concealing stolen property. Thompson’s argument has merit. He was punished twice for the single act of concealing stolen property, and Count 3 is reversed with instructions to dismiss.

2. Thompson claims the evidence presented at trial was insufficient to support his conviction for unauthorized use of a vehicle and his conviction for knowingly concealing stolen property in Count 3. Because Thompson’s conviction for knowingly concealing stolen property in Count 3 is reversed with instructions to dismiss based upon error raised in Proposition 1, this Court need only address whether the evidence was sufficient to sustain his conviction for unauthorized use of a vehicle in Count 1. After reviewing the evidence in the light most favorable to the State, we find that any rational trier of fact could find beyond a reasonable doubt that Thompson was guilty of unauthorized use of a vehicle based on the evidence presented at trial. See Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204. The evidence was sufficient to sustain Thompson’s conviction on Count 1.

3. Thompson complains that multiple instances of prosecutorial misconduct deprived him of his right to a fair trial. This Court will not grant relief based on prosecutorial misconduct unless the State’s argument is so flagrant and that it so infected the defendant’s trial that it was rendered fundamentally unfair. Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230. Reviewing for plain error only, we reject Thompson’s claim that prosecutorial misconduct denied him a fair trial. This claim is denied.

4. The jury assessed punishment at six years imprisonment on Count 1 and eight years imprisonment on each of Counts 2 and 3. It did not assess any fines. At sentencing, however, the trial court sentenced Thompson in accordance with the jury’s verdict and, additionally, imposed a fine of $100.00 on each count. Thompson argues that because the jury did not assess fines on the verdict forms the trial court erred in assessing fines at sentencing. Because defense counsel did not object to this at sentencing, all but review for plain error has been waived. See Hubbard v. State, 2002 OK CR 8, ¶ 7, 45 P.3d 96, 99. Title 22 O.S.2011, 991a(A)(2) provides that the trial court may [i]mpose a fine prescribed by law for the offense and this Court has held that this section authorizes the trial court to impose a fine when such is allowed by law even when the jury did not. Fite v. State, 1993 OK CR 58, ¶ 11, 873 P.2d 293, 295. The trial court’s assessment of fines was a sanction prescribed by law and was not error. Relief is not required.

5. Thompson claims the trial judge abused his discretion when ordering his sentences on Counts 2 and 3 to run consecutively to his sentence on Count 1. This Court reviews a trial court’s decision to run sentences consecutively or concurrently for an abuse of discretion. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. While there is no absolute statutory or constitutional right to receive concurrent sentences, the trial court is statutorily granted the discretion to impose concurrent sentences. 22 O.S.2011, § 976. The judge exercised his discretion and his exercise of this discretion was not an abuse of discretion.

6. There are no errors, considered individually or cumulatively, that merit relief in this case. Jones v. State, 2009 OK CR 1, ¶ 104, 201 P.3d 869, 894; DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157. This claim is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED as to Counts 1 and 2. The Judgment and Sentence on Count 3 is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 47 O.S.2011, § 4-102
2. 21 O.S.2011, § 1713
3. Antrobus v. State, 1995 OK CR 41, ¶ 6, 900 P.2d 1003, 1004
4. Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161
5. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204
6. Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230
7. Hubbard v. State, 2002 OK CR 8, ¶ 7, 45 P.3d 96, 99
8. Fite v. State, 1993 OK CR 58, ¶ 11, 873 P.2d 293, 295
9. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170
10. 22 O.S.2011, § 976
11. Jones v. State, 2009 OK CR 1, ¶ 104, 201 P.3d 869, 894
12. DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157
13. 22 O.S. Ch. 18, App. (2016)

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 4-102 - Unauthorized Use of a Motor Vehicle
• Okla. Stat. tit. 21 § 1713 - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 22 § 991a - Authority to Impose Fines
• Okla. Stat. tit. 22 § 976 - Concurrent and Consecutive Sentences

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:

• Antrobus v. State, 1995 OK CR 41, I 6, 900 P.2d 1003, 1004
• Logsdon v. State, 2010 OK CR 7, I 5, 231 P.3d 1156, 1161
• Spuehler v. State, 1985 OK CR 132, "I 7, 709 P.2d 202, 203-204
• Williams v. State, 2008 OK CR 19, I 124, 188 P.3d 208, 230
• Hubbard v. State, 2002 OK CR 8, 1 7, 45 P.3d 96, 99
• Fite v. State, 1993 OK CR 58, 9 11, 873 P.2d 293, 295
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Jones v. State, 2009 OK CR 1, "I 104, 201 P.3d 869, 894
• DeRosa v. State, 2004 OK CR 19, "I 100, 89 P.3d 1124, 1157