STATE v. TUBBY
2016 OK CR 17
Okla. Crim. App.2016Background
- Defendants Michael Tubby and Rusty Wooten were tried jointly and charged with First Degree Felony Murder; jury acquitted them of that charge but convicted them of Accessory to First Degree Felony Murder (a lesser instruction given over the State’s objection).
- The convictions became final because defendants did not appeal their convictions; the State reserved a question of law under 22 O.S. § 1053(3) and sought review on whether Accessory to First Degree Felony Murder is a legally recognized lesser included offense of First Degree Felony Murder.
- The central legal question requires applying either the elements (statutory) test or the Shrum/evidence (prima facie) test to determine whether a lesser offense is legally included in a greater offense.
- The State relied on the elements-test line of authority (e.g., Cummings) to argue accessory is not a lesser included offense; defendants and some precedent applied the Shrum evidence/prima facie approach under which related offenses may be submitted if trial evidence supports them.
- The Court declined to resolve the legal question on the merits because the State’s designated record lacked the trial evidence necessary to apply the evidence/prima facie test and contained other procedural deficiencies (missing final judgment/sentence and lack of on-the-record notice of intent to appeal).
- Result: the State’s reserved-question appeal was dismissed for failure to provide a sufficient record and procedural noncompliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Accessory to First Degree Felony Murder is a legally recognized lesser included offense of First Degree Felony Murder | Accessory is not a lesser included offense under the strict statutory elements test (Cummings) | Under Shrum/evidence test, accessory may be a lesser/related offense if prima facie evidence at trial supports it | Dismissed for inadequate record; Court did not decide the legal question on merits because State failed to provide trial evidence needed for the prima facie (evidence) analysis |
| Whether the State preserved a reviewable reserved question of law | State claimed reservation under 22 O.S. § 1053(3) | Defendants relied on insufficiency of the appellate record | Held: waiver/dismissal — State failed to include necessary trial transcript portions, the final judgment, and proof of required on-the-record appeal notice, so review was waived and appeal dismissed |
Key Cases Cited
- Shrum v. State, 991 P.2d 1032 (Okla. Crim. App. 1999) (endorsing the evidence/prima facie test for lesser/related-offense instructions)
- Cummings v. State, 968 P.2d 821 (Okla. Crim. App. 1998) (holding accessory after the fact is a separate substantive offense under the elements test)
- Glossip v. State, 29 P.3d 597 (Okla. Crim. App. 2001) (applying Shrum and finding accessory-after-the-fact could be a related offense when prima facie evidence exists)
- Davis v. State, 268 P.3d 86 (Okla. Crim. App. 2011) (explaining the prima facie evidence standard for lesser-included instructions)
- Miller v. State, 313 P.3d 934 (Okla. Crim. App. 2013) (distinguishing Glossip where trial evidence did not establish prima facie case for accessory)
- Hiler v. State, 796 P.2d 346 (Okla. Crim. App. 1990) (appellant must ensure record is sufficient to decide issues on appeal)
- State v. Anderson, 972 P.2d 32 (Okla. Crim. App. 1998) (State’s reserved-question review limited to the legal question presented)
- Hill v. State, 898 P.2d 155 (Okla. Crim. App. 1995) (failure to provide adequate record waives appellate review)