Daniel Terrell Smith v The State Of Oklahoma

F-2017-724

Filed: Jul. 26, 2018

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Daniel Terrell Smith appealed his conviction for several crimes, including Assault and Battery With a Dangerous Weapon and Burglary. His conviction and sentence included ten years in prison for two counts, fines for two other counts, and twenty years for Maiming, totaling a significant prison time. The court decided to dismiss one of the charges due to double jeopardy because Smith was punished for two offenses that resulted from the same act. Judge Kuehn and other judges agreed with this decision, but one judge, Jones, disagreed.

Decision

The Judgments and Sentences of the District Court of Oklahoma County in Counts II, III, IV and V are AFFIRMED. The Judgment and Sentence in Count I is DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. -- (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in admitting evidence for which the unfair prejudicial effect substantially outweighed the probative value?
• Did the appellant's convictions for both maiming and assault and battery with a dangerous weapon violate his constitutional and statutory protections against double jeopardy?

Findings

• The court did not err in admitting evidence of bad acts or other crimes.
• Appellant's convictions for maiming and assault and battery with a dangerous weapon constituted double punishment, leading to the dismissal of one charge.
• The Judgment and Sentence in Count I is dismissed.
• The Judgments and Sentences of the District Court in Counts II, III, IV and V are affirmed.

F-2017-724

Jul. 26, 2018

Daniel Terrell Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, JUDGE: Daniel Terrell Smith was tried by jury and convicted of Count I, Assault and Battery With a Dangerous Weapon in violation of 21 O.S.2011, § 645, Count II, Burglary in the First Degree in violation of 21 O.S.2011, § 1431, Count III, Domestic Abuse Assault and Battery in violation of 21 O.S.2011, § 644(C), Count IV, Violation of a Protective Order in violation of 22 O.S.2011, § 60.6, and Count V, Maiming in violation of 21 O.S.2011, § 751, in the District Court of Oklahoma County, Case No. CF-2014-7327. In accordance with the jury’s recommendation the Honorable Timothy R. Henderson sentenced Appellant to ten (10) years imprisonment on each of Counts I and II, a fine of $5000.00 (Count III), a fine of $1000.00 (Count IV), and twenty (20) years imprisonment (Count V), to run consecutively. Appellant appeals from these convictions and sentences. Appellant raises two propositions of error in support of his appeal:

I. The trial court erred in admitting evidence for which the unfair prejudicial effect substantially outweighed the probative value.

II. Appellant’s convictions for both maiming and assault and battery with a dangerous weapon violated his constitutional and statutory protections against double jeopardy.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that Appellant’s conviction and sentence in Count I must be dismissed. We find in Proposition I that the trial court did not abuse its discretion in admitting evidence of bad acts or other crimes. Kirkwood v. State, 2018 OK CR 9, ¶ 3, P.3d An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. A person should be convicted only by evidence of the crimes charged. Welch v. State, 2000 OK CR 8, ¶ 8, 2 P.3d 356, 365. However, evidence of other bad acts may be admissible to show, for example, motive, intent, identity and absence of mistake or accident. 12 O.S.2011, § 2404(B). The evidence (a) must be probative of a disputed issue; (b) there must be a visible connection between the charged crimes and the other crimes evidence; (c) the evidence must be necessary to support the State’s burden of proof; (d) it must be clear and convincing; and (e) the evidence’s probative value must outweigh its prejudicial effect. Miller v. State, 2013 OK CR 11, ¶ 89, 313 P.3d 934, 966. When other crimes evidence is admitted, the trial court must instruct jurors on its limited use at the time and again at the close of trial. Id. The evidence of the nightclub encounter showed that Appellant blamed the victim in Count I for the failure of his relationship with his ex-girlfriend, and that he had previously sought her out in anger. This was relevant to show motive, and was not provided through any other testimony. Eizember v. State, 2007 OK CR 29, ¶ 83, 164 P.3d 208, 231. This proposition is denied.

In Proposition II the State concedes that Appellant’s convictions for maiming and assault and battery with a dangerous weapon constitute double punishment because they each arose from the same act. As a remedy this Court must dismiss one of the charges. Generally, this Court will dismiss the charge carrying the lesser punishment. Anderson v. State, 1972 OK CR 289, ¶ 6, 502 P.2d 1299, 1301. This proposition is granted, and Appellant’s conviction and sentence on Count I is vacated and dismissed.

DECISION

The Judgments and Sentences of the District Court of Oklahoma County in Counts II, III, IV and V are AFFIRMED. The Judgment and Sentence in Count I is DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. — (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE

ATTORNEYS AT TRIAL

JAMES SHAW
1900 NW EXPRESSWAY, SUITE 608
OKLAHOMA CITY, OK 73118
COUNSEL FOR APPELLANT

DAVID C. HAMEL
HAMEL LAW FIRM, PLLC
625 NORTHWEST 13TH STREET
OKLAHOMA CITY, OK 73103
COUNSEL FOR DEFENDANT

AMBER MASTERS
ATTORNEY GENERAL OF OKLA.
313 NE 21ST STREET
OKLAHOMA CITY, OK 73105
ASST. ATTORNEY GENERAL

SUSAN STALLINGS
COUNSEL FOR APPELLEE

NIKKI KIRKPATRICK
ASST. DISTRICT ATTORNEYS
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE

OPINION BY KUEHN, J.
LUMPKIN, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
HUDSON, J.: CONCUR
ROWLAND, J.: CONCUR

Click Here To Download PDF

Footnotes:

1. 21 O.S.2011, § 645
2. 21 O.S.2011, § 1431
3. 21 O.S.2011, § 644(C)
4. 22 O.S.2011, § 60.6
5. 21 O.S.2011, § 751
6. 12 O.S.2011, § 2404(B)
7. 313 P.3d 934
8. 164 P.3d 208
9. 502 P.2d 1299
10. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. -- (2018)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery With a Dangerous Weapon
• Okla. Stat. tit. 21 § 1431 (2011) - Burglary in the First Degree
• Okla. Stat. tit. 21 § 644(C) (2011) - Domestic Abuse Assault and Battery
• Okla. Stat. tit. 22 § 60.6 (2011) - Violation of a Protective Order
• Okla. Stat. tit. 21 § 751 (2011) - Maiming
• Okla. Stat. tit. 12 § 2404(B) (2011) - Other Crimes Evidence

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:

• Kirkwood v. State, 2018 OK CR 9, I 3, P.3d
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
• Welch v. State, 2000 OK CR 8, I 8, 2 P.3d 356, 365.
• Miller v. State, 2013 OK CR 11, I 89, 313 P.3d 934, 966.
• Eizember v. State, 2007 OK CR 29, I 83, 164 P.3d 208, 231.
• Anderson v. State, 1972 OK CR 289, I 6, 502 P.2d 1299, 1301.