Airick William Fuller v State Of Oklahoma

F-2021-123

Filed: Jul. 7, 2022

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Airick William Fuller appealed his conviction for kidnapping and robbery. Conviction and sentence for kidnapping were ten years each for two counts, and thirty years for robbery. The judges agreed with the decision, but one judge, Musseman, disagreed.

Decision

The Judgment and Sentence of the district court is AFFIRMED. However, this matter is REMANDED to the District Court with instructions to enter an order nunc pro tunc correcting the judgment and sentence document to reflect the trial court's order for concurrent sentences if this matter has not already been addressed. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there sufficient evidence presented at trial to support Appellant's conviction for first-degree robbery?
• Did the trial court err by failing to instruct the jury on the lesser-included offense of second-degree robbery?

Findings

• Evidence was sufficient to support Appellant's conviction for first-degree robbery.
• The trial court did not err by failing to instruct the jury on the lesser-included offense of second-degree robbery.
• The judgment and sentence of the district court is affirmed.
• The matter is remanded to the District Court to correct the judgment and sentence document to reflect the trial court's order for concurrent sentences.

F-2021-123

Jul. 7, 2022

Airick William Fuller

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, VICE PRESIDING JUDGE: Appellant, Airick William Fuller, was tried and convicted by a jury in the District Court of Custer County, Case No. CF-2019-283, of Counts 1-2: Kidnapping, After Two Prior Felony Convictions, in violation of 21 O.S.Supp.2012, § 741; and Count 3: Robbery in the First Degree, After Two Prior Felony Convictions, in violation of 21 O.S.2011, § 797. The jury sentenced Fuller to ten years imprisonment each on Counts 1-2 and thirty years imprisonment on Count 3. The Honorable Jill C. Weedon, District Judge, pronounced judgment and sentence in accordance with the jury’s verdict and ordered credit for time served. Judge Weedon further ordered that the sentences for all three counts run concurrently. Fuller now appeals alleging the following propositions of error:

I. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR FIRST-DEGREE ROBBERY; and

II. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SECOND-DEGREE ROBBERY.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED. However, we REMAND this matter to the District Court with instructions to enter an order nunc pro tunc correcting the judgment and sentence document to reflect the trial court’s order for concurrent sentences if this matter has not already been addressed.

Proposition I. Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of first degree robbery as charged in this case. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Davis v. State, 2011 OK CR 29, ¶ 74, 268 P.3d 86, 111; Young v. State, 2000 OK CR 17, ¶ 35, P.3d 20, 35. Taken in the light most favorable to the State, the record evidence allowed the jury to infer that Jason White didn’t fight back while being beaten and having his shoes taken off his feet because Appellant put the gun to White’s head earlier during the kidnapping and had threatened to shoot him. Evidence of the beating Appellant inflicted on White and Jalen Hernandez without resistance demonstrated the immediate nature of the threat of serious bodily injury White faced and the fear induced from the total circumstances presented. Although White never saw the gun while being beaten, the most that can be made of this fact is that White simply didn’t know where the gun was. Sufficient evidence was therefore presented to show beyond a reasonable doubt that Appellant threatened White with immediate serious bodily injury during the commission of the robbery in order to overcome any resistance to the taking of the shoes from his person. 21 O.S.2011, § 797(2). See Owens v. State, 2010 OK CR 1, ¶ 8, 229 P.3d 1261, 1264-65; 10A O.S.2021, § 1-1-105(35); 27A O.S.2021, § 2-6-202(7). Proposition I is denied.

Proposition II. We review the trial court’s decision on instructions for abuse of discretion. Davis v. State, 2018 OK CR 7, ¶ 7, 419 P.3d 271, 277. Our review of this claim is limited to plain error, however, because Appellant did not request instructions on second degree robbery. Leech v. State, 2003 OK CR 4, ¶ 4, 66 P.3d 987, 989. To prove plain error, Appellant must show an actual or obvious error affected his substantial rights. Williams v. State, 2021 OK CR 19, ¶ 4, 496 P.3d 621, 623. Even then, we will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. (quoting Lamar v. State, 2018 OK CR 8, ¶ 40, 419 P.3d 283, 294); 20 O.S.2011, § 3001.1. Appellant fails to show an actual or obvious error affecting his substantial rights. We require prima facie evidence of the lesser offense to support giving a lesser included instruction. Davis, 2018 OK CR 7, ¶ 7, 419 P.3d at 277. Prima facie evidence in this context means evidence that would allow a jury rationally to convict on the lesser offense and acquit the defendant of the charged crime. Id. While trial counsel could have requested instructions on second degree robbery based on the record evidence, see 21 O.S.2011, §§ 791, 794, 797, it appears that trial counsel made a strategic decision to request lesser offense instructions on the misdemeanor crime of assault and battery—as opposed to robbery in the second degree which in this case carried the same enhanced sentence of 20 to life as robbery in the first degree due to Appellant’s priors. See 21 O.S.Supp.2018, § 51.1(B); 57 O.S.Supp.2020, § 571(2)(s),(t). This was consistent with Appellant’s trial defense that this case involved a street fight broadcast on the internet that undoubtedly embarrassed the victims but the State simply did not present enough evidence to prove beyond a reasonable doubt the charged crimes of kidnapping and robbery. Under our case law, the district court has a duty to instruct on all requested lesser-included or lesser-related offenses when there is evidence to support it. Ball v. State, 2007 OK CR 42, ¶ 31, 173 P.3d 81, 90. When the defendant fails to request the instruction, relief will be granted only if the failure to submit the instruction goes to the foundation of the case or takes from the defendant a right essential to his defense. Grissom v. State, 2011 OK CR 3, ¶ 28, 253 P.3d 969, 980; Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695. Under the total circumstances presented here, Appellant fails to show the trial court committed an actual or obvious error affecting Appellant’s substantial rights by failing sua sponte to instruct on second degree robbery. There was no plain error. Proposition II is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. However, this matter is REMANDED to the District Court with instructions to enter an order nunc pro tunc correcting the judgment and sentence document to reflect the trial court’s order for concurrent sentences if this matter has not already been addressed. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. Appellant must serve 85% of the sentence imposed on Count 3 before becoming parole eligible. 21 O.S.Supp.2015, § 13.1.
2. The judgment and sentence document in the record on appeal does not reflect the trial court's pronouncement at formal sentencing that Appellant's sentences run concurrently. We address this matter infra.
3. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Davis v. State, 2011 OK CR 29, ¶ 74, 268 P.3d 86, 111; Young v. State, 2000 OK CR 17, ¶ 35, P.3d 20, 35.
4. See 21 O.S.2011, § 797(2). See Owens v. State, 2010 OK CR 1, ¶ 8, 229 P.3d 1261, 1264-65; 10A O.S.2021, § 1-1-105(35); 27A O.S.2021, § 2-6-202(7).
5. Davis v. State, 2018 OK CR 7, ¶ 7, 419 P.3d 271, 277.
6. Leech v. State, 2003 OK CR 4, ¶ 4, 66 P.3d 987, 989.
7. Williams v. State, 2021 OK CR 19, ¶ 4, 496 P.3d 621, 623.
8. Lamar v. State, 2018 OK CR 8, ¶ 40, 419 P.3d 283, 294; 20 O.S.2011, § 3001.1.
9. Id. (quoting Lamar v. State, 2018 OK CR 8, ¶ 40, 419 P.3d 283, 294).
10. Davis, 2018 OK CR 7, ¶ 7, 419 P.3d at 277.
11. See 21 O.S.2011, §§ 791, 794, 797.
12. See 21 O.S.Supp.2018, § 51.1(B); 57 O.S.Supp.2020, § 571(2)(s),(t).
13. Ball v. State, 2007 OK CR 42, ¶ 31, 173 P.3d 81, 90.
14. Grissom v. State, 2011 OK CR 3, ¶ 28, 253 P.3d 969, 980; Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 741 - Kidnapping
• Okla. Stat. tit. 21 § 797 - Robbery in the First Degree
• Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
• Okla. Stat. tit. 20 § 3001.1 - Error Affecting Substantial Rights
• Okla. Stat. tit. 21 § 791 - Robbery Definitions
• Okla. Stat. tit. 21 § 794 - Robbery Theories
• Okla. Stat. tit. 21 § 51.1(B) - Enhanced Sentences
• Okla. Stat. tit. 57 § 571(2)(s) - Sentencing Enhancements

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:

• Jackson v. Virginia, 443 U.S. 307, 319 (1979)
• Davis v. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111
• Young v. State, 2000 OK CR 17, I 35, P.3d 20, 35
• Owens v. State, 2010 OK CR 1, I 8, 229 P.3d 1261, 1264-65
• Davis v. State, 2018 OK CR 7, I 7, 419 P.3d 271, 277
• Leech v. State, 2003 OK CR 4, I 4, 66 P.3d 987, 989
• Lamar v. State, 2018 OK CR 8, IT 40, 419 P.3d 283, 294
• Ball v. State, 2007 OK CR 42, IT 31, 173 P.3d 81, 90
• Grissom v. State, 2011 OK CR 3, I 28, 253 P.3d 969, 980
• Simpson v. State, 1994 OK CR 40, I 12, 876 P.2d 690, 695