Roy K. HUNNICUTT, Appellant, v. STATE of Oklahoma, Appellee.
No. F-85-309.
Court of Criminal Appeals of Oklahoma.
May 5, 1988.
Appellant‘s fourth assignment of error alleges that the evidence presented was insufficient to prove him guilty of the crimes charged beyond reasonable doubt. While appellant is correct that much of the State‘s evidence was circumstantial, elements of a crime may be proven by circumstantial evidence. Barrett v. State, 674 P.2d 59 (Okl.Cr. 1984). “The weight, credibility, and probative effect of such evidence is for the jury....” Burks v. State, 568 P.2d 322, 324 (Okl.Cr. 1977). In this case, the evidence was sufficient to sustain the verdicts. Spuehler v. State, 709 P.2d 202 (Okl.Cr. 1985).
In his fifth assignment of error, appellant maintains that his sentence is excessive due to prejudice on the part of the jury. However, the sentences imposed were well within the range provided by
Judgments and sentences are AFFIRMED.
BUSSEY, J., concurred.
PARKS, J., specially concurs.
PARKS, Judge, Specially Concurring:
I write separately to state that it is sufficient to deny appellant‘s second assignment by holding that the hostage incident was admissible to prove identity. The further analysis concerning the so-called “res gestae” exception is purely dicta, as it is unnecessary to the resolution of this issue. I therefore do not join in that part of the opinion.
Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Wellon B.
OPINION
PARKS, Judge:
Appellant, Roy K. Hunnicutt, was tried by jury in Muskogee County District Court, Case No. CRF-83-706, and convicted of two counts of Attempting to Knowingly Conceal Stolen Property (
Dick Huitt, who was associated with the Muskogee County Sheriff‘s Department at the time of the offenses, was contacted by an informant who told him that appellant had purchased stolen property on several occasions. Huitt then obtained an undercover officer from the Muskogee Police Department and set up a meeting time with appellant. Huitt and the undercover officer obtained two pistols from the evidence room of the sheriff‘s office to be used in the sale to appellant. A second call was placed to appellant, who told the men to bring the pistols. The undercover officer, wearing a transmitting device, accompanied the informant to the house in Warner where appellant was staying on December 12, 1983. Huitt and another officer remained in a vehicle nearby, listening to the transaction. The undercover officer showed the two pistols to appellant, who inspected them amd asked them where they came from, explaining that he did not like to sell items in the same area from which they were taken. Appellant told the officer he wanted to buy the weapons but had no money at that time. Appellant made a telephone call, then asked the men to return the next night. On December 13, 1983, the men returned and were informed by appellant that he had only eighty ($80) dollars. The undercover officer told appellant that would suffice, “because they were hot pistols.” Appellant again asked where the weapons had come from. After appellant paid for the weapons, other officers entered the house and arrested appellant. Appellant denied saying he was interested in purchasing the weapons. He also denied taking possession of the weapons and testified that he told the men he knew someone to whom the men could “hock” the guns. He denied any conversation concerning the guns being stolen. He also admitted that he had been convicted of a felony in 1980. He testified he also knew that he could not have a firearm in his possession while he was on probation.
I.
Appellant first claims his convictions for attempting to conceal stolen property must be reversed because the State failed to disprove entrapment. It is not entrapment1 for police to simply furnish a defendant with an opportunity to commit a crime. Willis v. State, 706 P.2d 167, 168 (Okla. Crim.App.1985). The jury was properly instructed on entrapment, but rejected it. Where the evidence indicates that entrapment may have occurred, “the issue of whether a defendant has been entrapped is
Appellant next claims the evidence was insufficient to convict him of attempting to knowingly conceal stolen property. The undercover officer did not tell appellant the guns were stolen, but he did say they were “hot” and would be difficult to resell. Concerning the firearms possession charge, there was conflicting testimony as to whether appellant took possession of the weapons. It is within the province of the jury to resolve conflicts in testimony. Truelove v. State, 545 P.2d 1270, 1271 (Okla.Crim.App.1976).
Appellant also claims the State failed to prove the pistols were capable of discharging a lethal projectile, citing Nelson v. State, 687 P.2d 744 (Okla.Crim.App.1984). We agree. Here, the only evidence offered by the State to prove this element was that appellant inspected the weapons, said he could get a certain price for them, and reportedly remarked that he would like to keep one of the pistols for himself. When viewed in the light most favorable to the State, we cannot say that a rational trier of fact could have found this essential element of the crime charged beyond a reasonable doubt. See Spuehler v. State, 709 P.2d 202, 203-04 (Okla.Crim.App.1985);
II.
Appellant next claims that, because the weapons were not stolen, it was legally impossible for him to be convicted of attempting to knowingly conceal stolen property. The statute defining “attempt” states that a defendant can be convicted of attempting a crime if he “purposely engages in conduct which would constitute a crime if the attendant circumstances were as he believes them to be.”
is unsound in that it seeks to evaluate a mental attitude-‘intent’ or ‘purpose‘-not by looking to the actor‘s mental frame of reference, but to a situation wholly at variance with the actor‘s beliefs. In so doing, the courts exonerate defendants in situations where attempt liability most certainly should be imposed. In all of these cases the actor‘s criminal purpose has been clearly demonstrated; he went as far as he could in implementing that purpose; and, as a result, his ‘dangerousness’ is plainly manifested.
Accordingly, we reject appellant‘s contention.
Appellant next claims that the trial court erred in refusing his motion for a lengthy continuance. He claims that because his second court-appointed attorney was appointed only eight days before trial, there was insufficient time for him to prepare. We are not convinced. Appellant admits that the trial court gave his attorney a three-day continuance. He also admits that he failed to file a written motion or attach a written affidavit as required by
IV.
Appellant claims that he was unlawfully convicted twice for one act of attempting to conceal stolen property. He claims that such a conviction violates the prohibitions against double jeopardy of the
On numerous occasions, this Court has addressed the problem that surfaces when one transaction gives rise to two separate and distinct charges. Here, we do not address the problems that arise when all offenses are not joined at one trial, nor do we address the problems associated with successive prosecutions. We are concerned only with the situation that arises when a defendant is charged with two counts of the same crime arising out of one incident. We hold that, under the circumstances of this case, it was improper.
The
When the pros and cons of each test were considered in Johnson, it was noted that just “because we treat the double jeop-
[W]e merely follow the collective wisdom of this Court‘s prior decisions and elect the course which allows this Court to utilize the necessary tools to accomplish the task before it. In taking this course, we do nothing more than elevate the distinct purposes of the Double Jeopardy Doctrine to the equal dignity and reverence each [test] deserves.
Id. Based on the foregoing, we examine appellant‘s situation to determine which test best serves the underlying purposes of the double jeopardy prohibition against multiple punishments for the same offense.
The concept of double jeopardy has been used as a tool of statutory construction to determine “what [the legislature] has made the allowable unit of prosecution.” United States v. Universal C.I.T. Corp., 344 U.S. 218, 221 (1952). More recently, the Supreme Court held that the “Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). The Court noted that its underlying assumption was that a legislative body ordinarily does not intend to punish the same offense under two different statutes, and such punishments should not be authorized “in the absence of a clear indication of contrary legislative intent.” Id. (citing Whalen v. United States, 445 U.S. 684, 691-92 (1980)). That is similar to what appellant is arguing here. He argues both that he should not be prosecuted for two crimes arising from one act; and that he should not be charged with the same crime two times as a result of one act.
As we have dismissed the charges of felonious possession of a weapon, we need not address the problems that occur when one act leads to charges under different criminal statutes. The question remains, however, whether appellant can be convicted of two counts of one offense arising out of the same transaction. The answer depends on whether one determines that the “criminal episode involves separate and distinct offenses, consisting of different elements or dissimilar proof.” Weatherly v. State, 733 P.2d 1331, 1336 (Okla.Crim.App.1987). See Starnes v. State, 507 P.2d 920, 921-22 (Okla.Crim.App.1973). Offenses are distinct and separate if they “are not mere means to some other ultimate objective, nor are they offenses included in some other offense, nor are they merely different incidents or facets of some primary offense.” Weatherly, 733 P.2d at 1336-37 (citing Clay v. State, 593 P.2d 509, 510 (Okla.Crim.App.1979)).
Here, appellant paid the undercover officer $80.00 and was given a sack containing two pistols. The State prosecuted appellant on two charges of attempting to conceal stolen property simply because law enforcement officers had taken two pistols out of the evidence room to use in the transaction. Presumably, had five pistols been involved, appellant would have been charged with five counts of the crime; had there been twenty weapons in the sack, appellant would have been charged with 20 counts of each crime. We find nothing in our statutes to indicate our legislature intended such a result. See
In Weatherly, 733 P.2d at 1337, we upheld the convictions based on the circumstances surrounding the case, but noted that such might not always be the case:
The prosecution asserts, however, that each of the blows delivered by the defendant may serve as the basis for a separate offense.... According to the argument, the defendant could have been convicted of and concurrently sentenced for numerous counts of [the same crime]. Such suggestion is inane. Only a single defendant and a single victim were involved. The offenses at issue, ... arose from a series of blows to the victim which were not separated by an [sic] significant amount of time.
Weatherly, 733 P.2d at 1337 (citation omitted).
[T]he same evidence test must be applied with some discrimination. Merely because one element of a single criminal act embraces two persons or things, a prosecutor may not carve out two offenses by charging the several elements of the single offense in different counts and designating only one of the persons or things in one count and designating only the other person or thing in the other count.
Robinson v. United States, 143 F.2d 276, 277 (10th Cir.1944), modified on other grounds, 147 F.2d 915 (10th Cir.1945).
The same reasoning was used by Judge Brett writing for a unanimous Court in Gentry v. State, 562 P.2d 1170 (Okla.Crim.App.1977), when two of three convictions for receiving stolen property were reversed. There, the evidence showed that three guns from three separate thefts were “bargained for and sold as a unit, and ... a single price was paid for the entire unit.” The Court said that, even though three separate thefts were involved, only one sale of stolen goods to the defendant was shown. “Accordingly, only one offense was proven, and the verdicts of guilty on two of the three counts were not supported by the evidence.” Id. at 1175. We find the Gentry rationale controlling here.
Nor does this holding run contrary to the reasoning in Hill v. State, 511 P.2d 604 (Okla.Crim.App.1973), where this Court said that double jeopardy was not intended as “a method of carte blanche extending to the accused the prerogative of committing as many offenses as he desired within the same transaction with the protective shield of permitting only one prosecution to arise and be pursued from that transaction.” Id. at 606. We are simply saying that a prosecutor cannot stack multiple charges in situations such as this, to “offer[] the jury a choice-a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence.” Cichos v. Indiana, 385 U.S. 76, 81 (1966) (Fortas, J., dissenting from dismissal of certiorari).
Therefore, Counts II, III and IV are REVERSED and REMANDED with instructions to DISMISS, and Count I is AFFIRMED.
BRETT, P.J., concurs.
BUSSEY, J., concurs in part/dissents in part.
BUSSEY, Judge, specially concurring in part and dissenting in part:
I must dissent to the reversal of Counts III and IV.
It shall be unlawful for any person having previously been convicted of any felony in any court of a state or the United States to have in his possession or under his immediate control, or in any vehicle which he is operating, or in which, he is riding as a passenger, any pistol, imitation or homemade pistol, machine gun, sawed-off shotgun or rifle, or any other dangerous or deadly firearm which could be easily concealed on the person, in personal effects or in an automobile. (Emphasis Added)
Under this statute, I am of the opinion, that the State is not required to prove that the pistols were capable of discharging a lethal projective. The statute clearly states that even possessing an “imitation or homemade pistol” is unlawful for a convicted felon. Clearly, an imitation pistol will not fire a lethal projectile. Moreover, even in Nelson v. State, 687 P.2d 744 (Okl. Cr.1984), cited by the majority, Judge Parks, in his opinion, did not require the State to prove by direct evidence that the pistol was capable of firing a lethal projectile but allowed it to be proven by the surrounding circumstances. I would af-
While I agree that Count II should be reversed, I limit my concurrence to the specific facts of this case where the two pistols from the police evidence room were sold to the defendant for one price, in one unit, by two police officers.