Holt v. StateHolt v. State
- Reporters:
- , , ,
- Before:
- Parks
OPINION
PARKS, Vice Presiding Judge:
Everett Charles Holt, appellant, was tried by jury and convicted of First Degree Burglary (
Around 5:00 a.m. on July 5, 1986, appellant ripped off a screen and entered his ex-wife’s apartment through the window. Appellant found Mrs. Holt alone in her bedroom and began beating her with his fists. When a female friend intervened, appellant struck the guest. Mrs. Holt suffered injuries including a concussion, a broken cheek bone, a fractured nose, and two black eyes. Appellant defended at trial on the theories he was intoxicated and could not burglarize his own dwelling.
The sole issue presented is whether the trial court erred in admitting evidence that appellant had twice violated a protective order issued pursuant to the Protection from Domestic Abuse Act [hereinafter the Act],
First, we must decide whether the violation of a protective order is evidence of “other crimes or acts” governed by
A Court of Appeals decision held the Act to be civil in nature in
Marquette v. Marquette,
686 P.2d 990, 993-94 (Okla.App.1984). However,
Marquette
is not controlling here for several reasons: (1)
Marquette
involved an appeal from the
issuance
of a protective order, whereas the instant case involves the
violation
of a protective order; (2) A plain reading of the Act shows that the violation of a protective order is a misdemeanor under
Second, we must address admission of the evidence under
Burks.
Appellant concedes the prosecutor timely filed a
Burks
notice, but complains it did not specify what exception would be relied upon for admission. There is no such requirement in
Burks,
which compels the prosecutor to specify the exception under which the evidence is sought to be admitted “[a]t the time the evidence is offered....”
Burks,
594 P.2d at 774. On the morning of trial, during an
in camera
hearing on appellant’s motion in limine, the prosecutor offered the evidence to prove motive and/or intent. The trial judge admitted it to prove motive, absence of mistake, and common scheme.
See
In addition, we believe appellant’s prior contacts with the victim were relevant to prove motive and/or intent.
See Russell v. State,
654 P.2d 1058, 1064 (Okla.Crim.App.1982). Such relevancy demonstrates a “visible connection” between the other crime evidence and the charged offenses.
See Henderson v. State,
695 P.2d 879, 882 (Okla.Crim.App.1985). Contrary to appellant’s assertions, we do not agree the evidence was merely cumulative and unnecessary to support the State’s burden of proof.
Burks,
594 P.2d at 775. Further, we cannot say the probative value of the evidence was substantially outweighed by its prejudicial effect.
Id. See
Finally, appellant claims the trial court committed reversible error in failing to admonish the jury at the time the other crime evidence was admitted and in failing to give a limiting instruction. We hold that where a defendant fails to object to the lack of admonishment or instruction and does not request a limiting instruction, all but fundamental error is waived. See Jones v. State, 772 P.2d 922, 924-25 (Okla.Crim.App.1989); Drew v. State, 771 P.2d 224, 230 (Okla.Crim.App.1989); Hainey v. State, 740 P.2d 146, 151 (Okla.Crim.App.1987); Sweatte v. State, 732 P.2d 476, 477 (Okla.Crim.App.1987). We find no fundamental error here.
The judgment and sentence is AFFIRMED.
BRETT, P.J., and BUSSEY, LANE and LUMPKIN, JJ., concur.