429 P.3d 690
Okla. Crim. App.2018Background
- On Nov. 25, 2015, Roy Dale Thompson and an accomplice attempted to burglarize a vehicle/home in Davenport, OK; Thompson shot through a truck windshield at the victim, who returned fire and wounded Thompson.
- Thompson escaped, was later found injured, arrested, and treated for a gunshot wound; his gun was not recovered.
- He was charged and convicted by jury of: second-degree burglary (Count 1); assault with a deadly weapon (Count 2); felon in possession of a firearm (Count 3); and possession of a firearm during the commission of a felony (Count 4).
- At sentencing the jury found he had two or more prior felonies; the court imposed life sentences and $10,000 fines on Counts 1–4 to run concurrently.
- Thompson appealed raising six propositions: (1) Count 2 convicted a non-existent crime; (2) double punishment (Counts 3 & 4); (3) insufficiency of evidence for Counts 1 and 4; (4) ineffective assistance of trial counsel; (5) excessive sentences; (6) cumulative error.
Issues
| Issue | Thompson's Argument | State's Argument | Held |
|---|---|---|---|
| Whether conviction under 21 O.S. §652(C) (assault with a deadly weapon) is legally cognizable absent a battery | §652(C) conviction is improper because subsection requires assault plus battery; Count 2 must be vacated | Jury convicted assault; any error was waived absent plain error; evidence supports assault-level offense | Court found plain error: §652(C) has historically required assault+battery; modified Count 2 to conviction under §645 (assault with dangerous weapon/shooting with intent to injure) and affirmed life sentence |
| Double punishment under 21 O.S. §11 for Counts 3 (felon-in-possession) and 4 (use during felony) | Punishing possession as both felon-in-possession and use-during-felony impermissibly punishes same act twice | Possession during burglary is a distinct, separable offense from mere felonious possession | Court rejected double-punishment claim; held the possession during the burglary was sufficiently separate to permit both convictions |
| Sufficiency of evidence for burglary (Count 1) and possession of firearm during felony (Count 4) | Evidence insufficient to prove burglary or that he possessed firearm during burglary | Evidence (shooting at victim while burglarizing truck, presence at scene, later apprehension injured) supports elements | Court held evidence sufficient for each conviction; denied relief |
| Ineffective assistance of counsel for failing to object to issues above | Trial counsel deficient for not objecting to Count 2 error, §11 violations, and evidentiary insufficiency | Any failure was not prejudicial because errors are meritless or were corrected on appeal | Court applied Strickland, found no prejudice (issues moot or without merit) and denied claim |
Key Cases Cited
- Avants v. State, 660 P.2d 1051 (Okla. Crim. App. 1983) (interpreting 21 O.S. §652(C) to require assault plus battery)
- Meggett v. State, 599 P.2d 1110 (Okla. Crim. App. 1979) (assault by firearm without intent to kill is prosecuted under §645)
- Hogan v. State, 139 P.3d 907 (Okla. Crim. App. 2006) (plain-error standard on appeal)
- Sanders v. State, 358 P.3d 280 (Okla. Crim. App. 2015) (when separate offenses arise from possession/use of same weapon)
- Spuehler v. State, 709 P.2d 202 (Okla. Crim. App. 1985) (standard for reviewing sufficiency of evidence)
- Washington v. State, 729 P.2d 509 (Okla. Crim. App. 1986) (accepting favorable inferences supporting verdict)
- Anderson v. State, 130 P.3d 273 (Okla. Crim. App. 2006) (parole computation and related sentencing considerations)
- Birdine v. State, 85 P.3d 284 (Okla. Crim. App. 2004) (modification of conviction where instruction error rendered original charge doubtful)
- Pullen v. State, 387 P.3d 922 (Okla. Crim. App. 2016) (review of whether a sentence within statutory limits shocks the conscience)
- Barnett v. State, 263 P.3d 959 (Okla. Crim. App. 2011) (cumulative error doctrine)