Anthony Kejuan Day v The State Of Oklahoma

F-2018-341

Filed: Sep. 26, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Anthony Kejuan Day appealed his conviction for multiple crimes, including assault and battery on a police officer and possession of a firearm after a felony. Conviction and sentence: 25 years for assault on an officer, 20 years for conspiracy to commit violence, 30 years for firearm possession, and 1 year each for obstructing and resisting an officer. Judge William D. LaFortune ordered some sentences to be served one after the other (consecutively) and some at the same time (concurrently). No judges dissented.

Decision

The judgment and sentence is 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 Equal Protection Clause in the prosecution's use of peremptory strikes?
• did the trial court err in relation to the amendments to the charge in Count 2?
• did Appellant's convictions for assault and battery upon a police officer and resisting an officer violate double jeopardy or the statutory prohibition against multiple punishment?
• did the trial court abuse its discretion in ordering consecutive sentences?

Findings

• The court erred in upholding the trial court's findings regarding the Batson challenge.
• The evidence was sufficient to deny modification of Count 2 conviction.
• The convictions for both assault and battery upon a police officer and resisting an officer do not violate double jeopardy.
• The trial court did not abuse its discretion in ordering consecutive sentences.

F-2018-341

Sep. 26, 2019

Anthony Kejuan Day

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Anthony Kejuan Day, Appellant, was tried by jury and found guilty of Count 1, assault and battery on a police officer, in violation of 21 O.S.Supp.2015, § 649(B), Count 2, plan, attempt, endeavor, or conspire to perform an act of violence, in violation of 21 O.S.2011, § 1378(A); Count 3, possession of a firearm after former conviction of a felony, in violation of 21 O.S.Supp.2014, § 1283; Count 4, obstructing an officer, a misdemeanor, in violation of 21 O.S.Supp.2015, § 540; and Count 5, resisting an officer, a misdemeanor, in violation of 21 O.S.2011, § 268, in the District Court of Tulsa County, Case No. CF-2017-3342. The jury found Appellant guilty after former conviction of two (2) or more felonies and sentenced him to twenty-five (25) years imprisonment on Count 1, twenty (20) years imprisonment on Count 2, thirty (30) years imprisonment on Count 3, and one (1) year each on Counts 4 and 5. The Honorable William D. LaFortune, District Judge, pronounced judgment and ordered the sentences on Counts 1 through 3 served consecutively to one another, and the sentences on Counts 4 and 5 to run concurrently to one another and concurrently to Count 3.

Mr. Day appeals in the following propositions of error:
1. The trial court failed to follow the procedure required by Batson v. Kentucky after Appellant challenged the State’s exclusion of all African-American panelists;
2. Appellant’s Count 2 conviction under 21 O.S.2011, § 1378 must be reversed or modified to a misdemeanor;
3. Appellant’s convictions for both assault and battery upon a police officer and resisting an officer violate double jeopardy and/or the statutory prohibition against multiple punishment;
4. The trial court abused its discretion when it ordered Appellant’s felony sentences to be served consecutively.

In Proposition One, Appellant argues that the prosecution used peremptory strikes in a racially discriminatory manner in violation of the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court’s findings in denying a Batson challenge to the prosecution’s use of peremptory challenges are entitled to great deference, and we review the record in the light most favorable to the trial court’s ruling. Mitchell v. State, 2011 OK CR 26, I 41, 270 P. 3d 160, 173, overruled on other grounds by Nicholson U. State, 2018 OK CR 10, 421 P.3d 890. Applying this standard, we find no error in the trial court’s conclusion that no purposeful discrimination occurred in the State’s use of peremptory challenges. Proposition One is denied.

In Proposition Two, Appellant argues that his conviction in Count 2 should be reversed or modified to a misdemeanor, because the State’s amendments to the charge at trial were prejudicial; the State failed to elect a specific act; and that the instructions were improper. He failed to raise any of these objections at trial, waiving all but plain error. Appellant must therefore show that a plain or obvious error affected the outcome. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. This Court will correct plain error only where it seriously affects the fairness, integrity, or public reputation of the proceeding. Simpson v. State, 1994 OK CR 40, T 30, 876 P.2d 690, 701. We find no plain or obvious error, and no relief is required. Proposition Two is denied.

In Proposition Three, Appellant argues that his convictions for both assault and battery upon a police officer and resisting an officer violate double jeopardy and/or the statutory prohibition against multiple punishment. Reviewing these convictions and sentences according to the controlling section 11 and double jeopardy analyses set forth in Davis v. State, 1999 OK CR 48, 11 4, 13, 993 P.2d 124, 125-27, we find no error. Proposition Three is without merit.

Finally, in Proposition Four, Appellant argues the trial court erred by ordering consecutive sentences. This determination is left to the sound discretion of the trial court. 22 O.S. 1991, § 976; Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534. An abuse of discretion is a clearly erroneous conclusion, contrary to the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170. Appellant has shown no abuse of discretion. Proposition Four is denied.

DECISION The judgment and sentence is 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. 21 O.S.Supp.2015, § 649(B)
2. 21 O.S.2011, § 1378(A)
3. 21 O.S.Supp.2014, § 1283
4. 21 O.S.Supp.2015, § 540
5. 21 O.S.2011, § 268
6. Batson v. Kentucky, 476 U.S. 79 (1986)
7. Mitchell v. State, 2011 OK CR 26, I 41, 270 P. 3d 160
8. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907
9. Simpson v. State, 1994 OK CR 40, T 30, 876 P.2d 690
10. Davis v. State, 1999 OK CR 48, 11 4, 993 P.2d 124
11. 22 O.S. 1991, § 976
12. Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530
13. Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161
14. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 649(B) (2015) - Assault and battery on a police officer
• Okla. Stat. tit. 21 § 1378(A) (2011) - Conspiracy to perform an act of violence
• Okla. Stat. tit. 21 § 1283 (2014) - Possession of a firearm after former conviction of a felony
• Okla. Stat. tit. 21 § 540 (2015) - Obstructing an officer
• Okla. Stat. tit. 21 § 268 (2011) - Resisting an officer
• Okla. Stat. tit. 22 § 976 (1991) - Sentencing 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:

• Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
• Mitchell v. State, 2011 OK CR 26, I 41, 270 P. 3d 160, 173
• Nicholson v. State, 2018 OK CR 10, 421 P.3d 890
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Simpson v. State, 1994 OK CR 40, T 30, 876 P.2d 690, 701
• Davis v. State, 1999 OK CR 48, 11 4, 13, 993 P.2d 124, 125-27
• Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170