BRINK v. STATE
481 P.3d 1267
| Okla. Crim. App. | 2021Background
- Brink fired multiple shots from a moving pickup at three persons standing on a mobile-home porch; he was on probation at the time.
- Charges: Counts 1–3 — Assault With a Dangerous Weapon (one per victim); Count 4 — Using a Vehicle to Facilitate the Intentional Discharge of a Firearm (drive-by statute); Count 5 — Possession of a Firearm While on Probation.
- Jury convicted on all five counts; recommended sentences (Counts 1–3: five years each; Count 4: ten years; Count 5: six years). Trial court ran Counts 1–4 concurrently and consecutive to Count 5.
- Brink appealed solely arguing double punishment under 21 O.S. § 11; he did not raise the claim below, so review is for plain error.
- The court found Counts 1–4 arose from the same act and presented a Section 11 double-punishment issue; Count 5 presented a separate status-crime question.
Issues
| Issue | Brink's Argument | State's Argument | Held |
|---|---|---|---|
| Whether convicting/sentencing under both assault counts (Counts 1–3) and the drive-by statute (Count 4) for the same event violates 21 O.S. § 11 (double punishment) | Convictions on Counts 1–4 punish the same act; Counts 4 (drive-by) and 1–3 must be dismissed to avoid double punishment | Drive-by statute is a separately defined crime; Legislature intended it to be charged independently of other shooting offenses | Counts 1–4 arise from one act; Section 11 bars punishing the same act under multiple sections absent express legislative intent. Sentences vacated and case remanded for the district court to dismiss either Counts 1–3 or Count 4 and resentence accordingly. |
| Whether Possession of a Firearm While on Probation (Count 5) is impermissibly duplicative of the shooting offenses | The possession conviction duplicates the shooting offenses because it concerns the same weapon and same incident | Possession-while-on-probation is a status crime completed before the shooting; it is separate from subsequent violent acts | Count 5 is a status crime completed prior to the shooting; convictions for Count 5 do not violate Section 11 and are AFFIRMED. |
Key Cases Cited
- Burleson v. Saffle, 46 P.3d 150 (2002) (held §652 may be charged multiple times where multiple victims are involved)
- Frazier v. State, 470 P.3d 296 (2020) (discusses status-possession crimes and plain-error review; temporal break required to avoid §11 violation)
- Sanders v. State, 358 P.3d 280 (2015) (possession of same firearm can produce §11 violation absent evidence of temporal break)
- Barnard v. State, 290 P.3d 759 (2012) (Section 11 prohibits multiple punishments for the same act absent express legislative intent)
- Lavorchek v. State, 443 P.3d 573 (2019) (reiterates single-act analysis under §11)
- Anderson v. State, 502 P.2d 1299 (1972) (remedy for §11 violations: dismiss the lesser-punished charge)