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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JIMMY DALE LUTTRELL, ) ) Appellant, ) NOT FOR PUBLICATION ) -VS- 1 No. M-2007-62 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) IN COURT OF CRIMINAL APPEALS FILED STATE OF OKLAHOMA SUMMARY OPINION JAN 2008 A. JOHNSON, JUDGE: MICHAEL S. RICHIE CLERK Appellant appeals from his misdemeanor Judgment and Sentence in Case No. CM-2006-645 in the District Court of Wagoner County. Appellant was convicted in a non-jury trial, conducted before the Honorable David Nelson, Special Judge, of Domestic Assault and Battery in the Presence of a Minor Child, and was sentenced to a term of one year in the Wagoner County Jail, with the sentence suspended, plus a fine of $250.00 and costs of $250.90. On appeal Appellant raises one proposition of error claiming the State’s evidence was insufficient to support Appellant’s conviction for Domestic Assault and Battery in the Presence of a Minor Child. In this case, Appellant’s wife, the victim of the alleged assault and battery, was called as a witness but did not appear or testify at the trial. Because the wife did not testify and because Judge Nelson sustained the hearsay objection and did not allow the police officer to testify about what the wife told him at the scene or introduce her written statement, there was no evidence admitted at trial, not even hearsay evidence, to establish what actually happened at the time of the alleged assault and battery, or to connect the Appellant directly to the assault and battery. Thus, as Appellant argues, all of the essential elements of the crime could not have been established, especially not beyond a reasonable doubt. Easlick v. State, 2004 OK CR 21, 95, 90 P.2d 556, 557-58; see also Spuehler v. State, 1985 OK CR 132, 17, 709 P.2d 202, 203-04. The State cites a not for publication opinion claiming this Court has found that even in the absence of the victim’s testimony, a rational trier of fact can determine that a defendant has committed the offense of Domestic Abuse / Assault and Battery. Littlesun v. State, No. F-2005-53 (Okl.Cr. January 27, 2006). Contrary to the State’s argument, however, the victim in Littlesun did testify and her out-of-court statements were admitted, thus there was evidence which could establish all essential elements of the crime. Because Appellant’s Judgment and Sentence is being reversed based upon insufficiency of the evidence presented at his trial to sustain guilt, double jeopardy precludes a second trial and this case must be remanded with instructions to dismiss. See Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). DECISION Appellant’s Judgment and Sentence in Case No. CM-2006-645 in the District Court of Wagoner County is REVERSED and REMANDED to the District Court with instructions to dismiss. Pursuant to Rule 3.15, Rules of the 2 Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF WAGONER COUNTY THE HONORABLE DAVID NELSON, SPECIAL JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL BEN STEVEN CHAPMAN BEN STEVEN CHAPMAN Attorney at Law Attorney at Law 320 East Cherokee Street 320 East Cherokee Street Wagoner, OK 74467 Wagoner, OK 74467 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT GRANT HUSKEY W. A. DREW EDMONDSON Assistant District Attorney Attorney General of Oklahoma 307 East Cherokee Street STEPHANIE D. JACKSON Wagoner, OK 74467 Assistant Attorney General COUNSEL FOR THE STATE 313 N.E. 21st Street Oklahoma City, OK 73015 COUNSEL FOR THE STATE OPINION BY: A. JOHNSON, J. LUMPKIN, P.J.: Concur in results C. JOHNSON, V.P.J.: Concur CHAPEL, J.: Concur LEWIS, J.: Concur RD 3

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