Scott Milton Donley v The State of Oklahoma

F-2017-1146

Filed: May 2, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Scott Milton Donley appealed his conviction for assault with a dangerous weapon and domestic abuse assault and battery. His conviction and sentence were 20 years in prison and a $100 fine for the first charge, plus 1 year in prison and a $100 fine for the second charge, with both sentences running at the same time. Judge Kuehn noted that Appellant's arguments were not enough to change the outcome. He found that the charges did not violate double punishment rules because they were separate crimes, and there was enough evidence to support the conviction of assault with a dangerous weapon. Appellant also waived his right to a jury trial appropriately. Judges Lewis, Lumpkin, Hudson, and Rowland agreed with the decision in different ways.

Decision

The Judgments and Sentences of the District Court of Lincoln County are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there a violation of the prohibitions against double punishment and double jeopardy in Appellant's convictions for assault and battery with a dangerous weapon and domestic abuse assault and battery?
• did the evidence presented at trial sufficiently support Appellant's conviction for assault with a dangerous weapon?
• was Appellant's waiver of his right to a jury trial knowing and intelligent?

Findings

• The court did not err; Appellant's convictions did not violate prohibitions against double punishment and double jeopardy.
• The court found that evidence was sufficient to support Appellant's conviction for assault with a dangerous weapon.
• The court determined that Appellant's waiver of a jury trial was competent, knowing, and intelligent.

F-2017-1146

May 2, 2019

Scott Milton Donley

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Scott Milton Donley was tried at a bench trial and convicted of Count I, Assault with a Dangerous Weapon After Former Conviction of Two or More Felonies in violation of 21 O.S.2011, § 645, and Count II, Domestic Abuse Assault and Battery (Misdemeanor) in violation of 21 O.S.Supp.2014, § 644(C), in the District Court of Lincoln County, Case No. CF-2016-309. The Honorable Cynthia Ferrell Ashwood sentenced Appellant to twenty (20) years imprisonment and a $100.00 fine (Count I); one (1) year imprisonment and a $100.00 fine (Count II). The sentences run concurrently. Appellant appeals from these convictions and sentences.

Appellant raises three propositions of error in support of his appeal:

I. Appellant’s convictions for assault and battery with a dangerous weapon and domestic abuse assault and battery violate the prohibitions against double punishment and double jeopardy.

II. Appellant’s conviction was obtained in violation of the 5th and 14th amendments to the United States Constitution and article II, section 7 of the Oklahoma Constitution, because the evidence was insufficient to prove that Appellant committed Count I: assault with a dangerous weapon.

III. The record is insufficient to demonstrate that Appellant knowingly and intelligently waived his right to a jury trial.

Therefore, Appellant’s convictions must be reversed. After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief.

We find in Proposition I that Appellant was not subjected to multiple punishment or double jeopardy. Appellant raised neither claim below, and has waived review of all but plain error. Logsdon U. State, 2010 OK CR 7, I 15, 231 P.3d 1156, 1164. The prohibition against double jeopardy provides that a person shall not be twice put in jeopardy for the same offense. U.S. Const. amend. V; Okl. Const. art. II, § 21. The issue is whether each charged offense requires proof that the other does not. Rousch U. State, 2017 OK CR 7, I 3, 394 P.3d 1281, 2 1282; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

Where double jeopardy is raised for the first time on appeal, we review the claim to determine whether the State has proved that any constitutional error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Oklahoma also provides, by statute, that a criminal act may not be punished under more than one section of law. 21 O.S.2011, § 11. This prohibition against double punishment turns on the relation between the crimes; the statute is violated where there is truly only one act, but will not apply where separate crimes, tangentially related to one another, occur during a continuing course of conduct. Irwin v. State, 2018 OK CR 21, I 5, 424 P.3d 675, 676.

We consider whether the facts of each case set out separate and distinct crimes, and the intent of the Legislature in enacting each crime. Sanders U. State, 2015 OK CR 11, I 8, 358 P.3d 280, 284. Where a Section 11 claim is raised for the first time on appeal, we review for plain error, considering whether a plain or obvious error affected the outcome of the proceeding. Irwin, 2018 OK CR 21, I 4, 424 P.3d at 676. We conduct a traditional double jeopardy analysis only if Section 11 does not apply. Mooney v. State, 1999 OK CR 34, I 14, 990 P.2d 875, 883.

Appellant claims his convictions were the result of a continuous, single transaction. This is, by its explicit language, a Section 11 claim. This Court has consistently held that a series of separate and distinct crimes, even occurring in a sequence close in time, do not violate Section 11. See, e.g., Davis v. State, 2018 OK CR 7, I 5, 419 P.3d 271, 276; State U. The Hon. Stephen Kistler, 2017 OK CR 24, I 8, 421 P.3d 899, 901; Logsdon, 2010 OK CR 7, I 18, 231 P.3d at 1165; Watts U. State, 2008 OK CR 27, 18-19, 194 P.3d 133, 139-40; Davis v. State, 1999 OK CR 48, I 14, 993 P.2d 124, 127.

Appellant first pushed the victim and slapped her across the face. Then, he pulled a knife and threatened her. The record thus shows separate and distinct offenses committed in rapid succession and requiring different proof. Davis, 2018 OK CR 7, I 5, 419 P.3d at 276. There is no Section 11 violation, no error, and we need not conduct any further plain error analysis. There is no violation of double jeopardy. Each charged crime requires separate proof that the other does not: domestic assault and battery requires that the victim was in a romantic relationship, while assault with a dangerous weapon requires proof of both those eponymous elements. Rousch, 2017 OK CR 7, I 3, 394 P.3d at 1282; 21 O.S.Supp.2014, § 644(C); 21 O.S.2011, § 645. This proposition is denied.

We find in Proposition II that sufficient evidence supported Appellant’s conviction in Count I. The State was required to show that Appellant assaulted the victim with a sharp or dangerous weapon, without justifiable or excusable cause, intending to do bodily harm. 21 O.S.2011, § 645. The State did not have to prove that Appellant actually touched the victim with the knife. 21 O.S.2011, § 641. Appellant claims the State failed to show that his knife was sharp, and thus failed to show it was a dangerous weapon. He also claims he did not intend any bodily harm. The trial court, acting as the trier of fact, was presented with conflicting evidence, including the weapon and testimony from Appellant, the victim, and investigating officers. The finder of fact determines the weight and credibility to give the evidence. Rutan v. State, 2009 OK CR 3, 49, 202 P.3d 839, 849.

Where the evidence conflicts, we will not disturb a verdict supported by competent evidence, and we accept all reasonable inferences tending to support the verdict. Id. Taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that the knife was a dangerous weapon, and that Appellant intended to do the victim bodily harm. Easlick U. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559. This proposition is denied.

We find in Proposition III that the record clearly shows Appellant’s waiver of a jury trial was competent, knowing, and intelligent. Hinsley U. State, 2012 OK CR 11, IT 5, 280 P.3d 354, 355; Long v. State, 2003 OK CR 14, I 3, 74 P.3d 105, 107. The record of the hearing on Appellant’s waiver shows it was done by Appellant personally in open court, orally, after inquiry by the trial court. Hinsley, 2012 OK CR 11, I 5, 280 P.3d at 355; Kerr v. State, 1987 OK CR 136, 11, 738 P.2d 1370, 1372. The prosecutor also waived a jury trial on the record. Valega v. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119. This proposition is denied.

DECISION
The Judgments and Sentences of the District Court of Lincoln County are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Logsdon U. State, 2010 OK CR 7, "I 15, 231 P.3d 1156, 1164.
2. U.S. Const. amend. V; Okl. Const. art. II, § 21.
3. Rousch U. State, 2017 OK CR 7, I 3, 394 P.3d 1281, 1282; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
4. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
5. Irwin v. State, 2018 OK CR 21, I 5, 424 P.3d 675, 676.
6. Sanders U. State, 2015 OK CR 11, I 8, 358 P.3d 280, 284.
7. Mooney v. State, 1999 OK CR 34, I 14, 990 P.2d 875, 883.
8. Hale v. State, 1995 OK CR 7, I 3, 888 P.2d 1027, 1029, overruled on other grounds by Davis v. State, 1999 OK CR 48, 993 P.2d 124.
9. Davis v. State, 2018 OK CR 7, I 5, 419 P.3d 271, 276.
10. State U. The Hon. Stephen Kistler, 2017 OK CR 24, I 8, 421 P.3d 899, 901.
11. Watts U. State, 2008 OK CR 27, 18-19, 194 P.3d 133, 139-40.
12. Davis v. State, 1999 OK CR 48, I 14, 993 P.2d 124, 127.
13. Easlick U. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559.
14. Hinsley U. State, 2012 OK CR 11, IT 5, 280 P.3d 354, 355.
15. Long v. State, 2003 OK CR 14, I 3, 74 P.3d 105, 107.
16. Kerr v. State, 1987 OK CR 136, 11, 738 P.2d 1370, 1372.
17. Valega v. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 (2011) - Assault with a dangerous weapon
• Okla. Stat. tit. 21 § 644(C) (2014) - Domestic abuse assault and battery (Misdemeanor)
• Okla. Stat. tit. 21 § 11 - Prohibition against multiple punishment
• Okla. Stat. tit. 21 § 641 (2011) - Assault defined

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
• Rousch v. State, 2017 OK CR 7, I 3, 394 P.3d 1281, 1282
• Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)
• Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)
• Irwin v. State, 2018 OK CR 21, I 5, 424 P.3d 675, 676
• Sanders v. State, 2015 OK CR 11, I 8, 358 P.3d 280, 284
• Mooney v. State, 1999 OK CR 34, I 14, 990 P.2d 875, 883
• Davis v. State, 2018 OK CR 7, I 5, 419 P.3d 271, 276
• State v. The Hon. Stephen Kistler, 2017 OK CR 24, I 8, 421 P.3d 899, 901
• Watts v. State, 2008 OK CR 27, 18-19, 194 P.3d 133, 139-40
• Davis v. State, 1999 OK CR 48, I 14, 993 P.2d 124, 127
• Hale v. State, 1995 OK CR 7, I 3, 888 P.2d 1027, 1029
• Rutan v. State, 2009 OK CR 3, 49, 202 P.3d 839, 849
• Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
• Hinsley v. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355
• Long v. State, 2003 OK CR 14, I 3, 74 P.3d 105, 107
• Kerr v. State, 1987 OK CR 136, I 1, 738 P.2d 1370, 1372
• Valega v. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119