Trevor Leif Toppah v The State Of Oklahoma

F-2021-512

Filed: Aug. 4, 2022

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Trevor Leif Toppah appealed his conviction for Burglary in the Second Degree and Obstructing an Officer. He was sentenced to ten years in prison for the burglary and received a $500 fine plus costs for the obstruction. The court found enough evidence to support his burglary conviction but decided that the fee for his legal representation was too high, so they changed it to $250. The court upheld the rest of the convictions and sentences. Judge Lumpkin disagreed with some parts of the decision.

Decision

The Judgment and Sentence of the district court is AFFIRMED except the indigent defense fee imposed is MODIFIED to $250.00 pursuant to our discussion in Proposition 3. 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 to support his conviction for second degree burglary?
• Did the trial court err when it assessed an indigent defense fee greater than allowed by statute?
• Did an accumulation of error deprive him of a fair trial?

Findings

• the evidence was sufficient to support the conviction for second degree burglary
• the trial court erred in assessing an indigent defense fee greater than allowed by statute
• the accumulation of error did not deprive appellant of a fair trial

F-2021-512

Aug. 4, 2022

Trevor Leif Toppah

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MUSSEMAN, JUDGE:

Appellant, Trevor Leif Toppah, appeals his Judgment and Sentence from the District Court of Comanche County, Case No. CF-2018-204, for Burglary in the Second Degree, After Three Prior Former Convictions (Count 1), in violation of 21 O.S.2011, § 1435; and Obstructing an Officer (Count 2), in violation of 21 O.S.2015, § 540. The Honorable Emmit Tayloe, District Judge, presided over Toppah’s non-jury trial and sentenced him to Ten Years imprisonment, with credit of time served, with one year post-imprisonment supervision upon release on Count 1; a Five Hundred Dollar fine plus costs and assessments to Count 2.

Toppah appeals his judgment and sentence raising the following issues: (1) whether the evidence was sufficient to support his conviction for second degree burglary; (2) whether the trial court erred when it assessed an indigent defense fee greater than allowed by statute; and (3) whether an accumulation of error deprived him of a fair trial. With exception to modifying the indigent defense fee, we affirm the Judgment and Sentence of the district court.

In Propositions 1 and 2 of Appellant’s brief, Toppah claims that there was insufficient evidence to prove burglary in the second degree, specifically breaking or intent to steal, beyond a reasonable doubt. The ultimate question of sufficiency of the evidence should be resolved with deference to the fact finder and in a light most favorable to the prevailing party below. Dodd v. State, 2004 OK CR 31, ¶ 80, 100 P.3d 1017, 1041. The breaking necessary to constitute burglary may be any act of physical force, however slight, by which obstructions to entering an automobile are removed. Williams v. State, 1988 OK CR 221, ¶ 11, 762 P.2d 983, 986 (citing Lewis v. State, 1987 OK CR 6, 732 P.2d 1, 2). Opening a closed door of an automobile is sufficient to constitute a breaking. Garruba v. State, 1970 OK CR 106, ¶ 12, 473 P.2d 317, 320. Breaking and entering an automobile with intent to steal, regardless of the value of the property sought to be taken, is burglary. Id. Intent is determined by the trier of fact and may be proven by direct or circumstantial evidence. Rowland v. State, 1991 OK CR 94, ¶ 7, 817 P.2d 263, 266 (citing Plunkett v. State, 1986 OK CR 77, 719 P.2d 834). Viewing the record evidence in the light most favorable to the State, we find a rational trier of fact could have found appellant guilty of second degree burglary of an automobile beyond a reasonable doubt. Propositions 1 and 2 are denied.

In Proposition 3, Toppah claims the trial court erred when it assessed a greater indigent defense fee than allowed by statute. Counsel at trial did not object and therefore the claim will be reviewed for plain error. Plain error review requires the defendant to prove: 1) the existence of an actual error; 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Even where this showing is made, this Court will correct plain error only where the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings or represented a miscarriage of justice. Id. Title 22 O.S. 2011 § 1355.14(E) provides that the court shall assess a fee for the cost of indigent representation. Section 1355.14 does not provide a specific fee for non-jury trials but does require assessment of a $250.00 fee for any proceedings not specifically provided for in the statute. The district court committed a plain error by imposing a $500.00 assessment for indigent defense—a point conceded by the State. The Judgment and Sentence must therefore be modified to reflect the appropriate indigent defense fee for this case. Relief is granted for Proposition 3.

In Proposition 4, Toppah claims that he was denied a fair trial due to an accumulation of errors. The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. Tafolla v. State, 2019 OK CR 15, ¶ 45, 446 P.3d 1248. Cumulative errors that do not affect the outcome of the proceeding do not deprive the defendant of a fair trial. Id. The only error found did not affect the outcome of the trial and is corrected by our modification of the indigent defense fee. There are no errors to accumulate. Proposition 4 is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED except the indigent defense fee imposed is MODIFIED to $250.00 pursuant to our discussion in Proposition 3. 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.

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Footnotes:

1. 21 O.S.2011, § 1435
2. 21 O.S.2015, § 540
3. Dodd v. State, 2004 OK CR 31, 80, 100 P.3d 1017, 1041.
4. Williams v. State, 1988 OK CR 221, 11, 762 P.2d 983, 986.
5. Lewis v. State, 1987 OK CR 6, 732 P.2d 1, 2.
6. Garruba v. State, 1970 OK CR 106, 12, 473 P.2d 317, 320.
7. Rowland v. State, 1991 OK CR 94, 7, 817 P.2d 263, 266.
8. Plunkett v. State, 1986 OK CR 77, 719 P.2d 834.
9. Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923.
10. Title 22 O.S. 2011 § 1355.14(E)
11. Tafolla v. State, 2019 OK CR 15, 45, 446 P.3d 1248.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 - Burglary in the Second Degree
• Okla. Stat. tit. 21 § 540 - Obstructing an Officer
• Okla. Stat. tit. 22 § 1355.14 - Indigent Defense Fees

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:

• Dodd v. State, 2004 OK CR 31, I 80, 100 P.3d 1017, 1041.
• Williams v. State, 1988 OK CR 221, I 11, 762 P.2d 983, 986.
• Lewis v. State, 1987 OK CR 6, 732 P.2d 1, 2.
• Garruba v. State, 1970 OK CR 106, I 12, 473 P.2d 317, 320.
• Rowland v. State, 1991 OK CR 94, I 7, 817 P.2d 263, 266.
• Plunkett v. State, 1986 OK CR 77, 719 P.2d 834.
• Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923.
• Tafolla v. State, 2019 OK CR 15, I 45, 446 P.3d 1248.