State Of Oklahoma v Christopher Daniel Welch

S-2015-568

Filed: Mar. 23, 2016

Not for publication

Prevailing Party: Christopher Daniel Welch

Summary

# Christopher Daniel Welch appealed his conviction for possession of a firearm after a felony conviction. Conviction and sentence dismissed. Judge Lumpkin did not participate in the decision.

Decision

The order of the District Court of Carter County dismissing Case No. CF-2014-723 is AFFIRMED. Pursuant to Rule 3.15, Rules, supra, the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was the magistrate's ruling clearly erroneous in finding the black CO2 pistol did not constitute an imitation pistol?
• did the State establish that Appellee's possession of the unaltered air pistol is prohibited pursuant to 21 O.S.Supp.2014, § 1283?
• did the trial court abuse its discretion in dismissing Case No. CF-2014-723?

Findings

• the court erred
• evidence was not sufficient
• the dismissal of the case was affirmed

S-2015-568

Mar. 23, 2016

State Of Oklahoma

Appellant

v

Christopher Daniel Welch

Appellee

SUMMARY OPINION

The State of Oklahoma appeals to this Court from an order of the reviewing judge affirming an adverse ruling of the preliminary hearing magistrate in Case No. CF-2014-723 in the District Court of Carter County. On December 2, 2014, Appellee was charged with Possession of a Firearm After Former Felony Conviction. On March 26, 2015, the preliminary hearing was conducted before the Honorable Carson M. Brooks, Special Judge. After the State rested, Appellee demurred to the evidence, alleging that the air pistol possessed in this case did not come within the meaning of 21 O.S.Supp.2014, § 1283. Judge Brooks sustained Appellee’s demurrer to the evidence and dismissed the Information. The State announced its intent to appeal pursuant to 22 O.S.2011, §§ 1098.1 – 1089.7 and Rule 6, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016). The State’s appeal was assigned to a reviewing judge, the Honorable D. Clay Mowdy, Associate District Judge. Judge Mowdy considered the preliminary hearing transcript and the State’s brief and on June 8, 2015, affirmed Judge Brooks’s order sustaining Appellee’s demurrer to the evidence. The State brings this appeal from the rulings of the District Court judges. The State asserts the following proposition of error:

1. The magistrate’s ruling is clearly erroneous in finding the black CO2 pistol did not constitute an imitation pistol.

This appeal was automatically assigned to the Accelerated Docket of this Court pursuant to Rule 11.2(A)(4), Rules, supra. The propositions or issues were presented to this Court in oral argument on February 4, 2016, pursuant to Rule 11.2(E), Rules, supra. At the conclusion of oral argument, this Court affirmed the rulings of the District Court judges. In State appeals, this Court reviews the trial court’s decision to determine if the trial court abused its discretion. See State v. Salathiel, 2013 OK CR 16, I 7, 313 P.3d 263, 266. The State has not established that Appellee’s possession of the unaltered air pistol in this case is prohibited pursuant to 21 O.S.Supp.2014, § 1283. As a result, the State has failed to establish an abuse of discretion.

DECISION

The order of the District Court of Carter County dismissing Case No. CF-2014-723 is AFFIRMED. Pursuant to Rule 3.15, Rules, supra, the MANDATE is ORDERED issued upon the filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CARTER COUNTY

THE HONORABLE D. CLAY MOWDY, ASSOCIATE DISTRICT JUDGE

APPEARANCES IN TRIAL COURT
HEATHER COOPER
First Assistant District Attorney
Carter County
20 B Street Southwest
Ardmore, OK 73401

APPEARANCES ON APPEAL
JACK COPPEDGE
Assistant District Attorney
Carter County
20 B Street Southwest
Ardmore, OK 73401

COUNSEL FOR APPELLANT
JASON D. MAY
Attorney at Law
222 Stanley Southwest
Ardmore, OK 73401

COUNSEL FOR APPELLEE
OPINION BY: LEWIS, J.

SMITH, P.J.: Concur
LUMPKIN, V.P.J.: Not Participating
JOHNSON, J.: Not Participating
HUDSON, J.: Concur

Click Here To Download PDF

Footnotes:

1. 21 O.S.Supp.2014, § 1283
2. 22 O.S.2011, §§ 1098.1 - 1089.7
3. Rule 6, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016)
4. State v. Salathiel, 2013 OK CR 16, ¶ 7, 313 P.3d 263, 266
5. Rule 11.2(A)(4), Rules
6. Rule 11.2(E), Rules
7. Rule 3.15, Rules

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1283 (2014) - Possession of Firearm After Former Felony Conviction
• Okla. Stat. tit. 22 § 1098.1 (2011) - Appeals
• Okla. Stat. tit. 22 § 1089.7 (2011) - Appeals

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:

• State v. Salathiel, 2013 OK CR 16, I 7, 313 P.3d 263, 266