Lopez v. StateLopez v. State
- Reporters:
- , ,
- Before:
- Parks
*371OPINION
PARKS, Presiding Judge:The appellant, Charles Henry Lopez, Jr., was tried by jury for the crimes of Burglary in the Second Degree and Assault and Battery With Intent to Kill, both After Former Conviсtion of Two or More Felonies, in the District Court of Comanche County, Case No. CRF-83-163. The jury returned verdicts of guilty on each count, and set punishment at thirty (30) and forty-five (45) years imprisonment. The trial court sentenced the appellant in accordance with the jury’s verdict. From this judgment and sentence, the appellant has perfected his appeal to this Court. We affirm.
At approximately 6:40 p.m. on March 7, 1983, Jimmy Byrd returned to his furniture store in Lawton, after having been away from the store for some forty minutes. Prior to leaving the store, Mr. Byrd secured the door with a padlock. When he arrived at the store, he discovered the padlock was broken, and the door was open. He noticed that a shotgun was missing from its usual location. While sеarching the store, Mr. Byrd was confronted by the appellant, who jumped from behind a hideaway bed. After initially confronting Mr. Byrd with a screwdriver, the appellant picked up the shotgun, pointed the firearm at Mr. Byrd’s face, and pulled the trigger. When the firearm failed to discharge, appellant сlubbed Mr. Byrd with the weapon. The store owner was knocked unconscious, and received an injury to his head and a broken arm. Mr. Byrd was able to recognize appellant as a local resident, and knew appellant’s last name was Lopez. He related this information to police. At trial, the appellant offered no evidence to contradict Mr. Byrd’s testimony.
I.
Appellant first contends the trial court erred in denying his orаl motion for a con-tmuance. The motion was based on the absence of alleged alibi witnesses. These witnesses had not been subpeоnaed by the defense. We find no error in the trial court’s ruling.
The procedural requirements of the motion for continuance are governed by 12 O.S. 1981
II.
Next, appellant claims his motion for a directed verdict of acquittal was improperly disallowed by the trial court. The appellant maintains that the State failed to establish the essential еlement of intent necessary to support the charge. We disagree.
In all cases of second degree burglary, the State has the burden of establishing beyond a reasonable doubt that the accused entered the building “with [the] intent to steal any property therein or to commit any felony.” See 21 O.S. 1981
In this case, appellant had in his possession, at the time of his confrontation with Mr. Byrd, a shotgun belonging to the victim. Furthermore, after being discovered in the store, appellant brutally assaulted his victim, and attempted to shoot him in the face. This evidencе, we believe, was sufficient to overcome the appellant’s motion for a directed verdict, and to require submission of this case to thе jury. This assignment of error is without merit.
III.
In his third assignment of error, the appellant challenges the decision of the trial court to reject two requested defense instructions. We find this assignment of error is without support in the record, and further, is without a legal basis.
First, appellant maintains the trial court refused to define the term “circumstantial evidence,” and rejected a requested instruction covering this topic. However, in Instruction No. 12, the trial сourt properly explained to the jury its duty in evaluating circumstantial evidence. This assignment of error is therefore wholly without merit.
Next, appellant claims the trial court erred in refusing to submit for the jury’s consideration the lesser included offense of entering a building with certain intent. 21 O.S. 1981
The evidence in this case established that the door to the store had been closed and locked when Mr. Byrd left for dinner. On his return, he discоvered the door had been forced open. Under the above authority, the requested instruction was properly denied.
IV.
Appellant also maintains that the trial judge excluded relevant evidence of appellant’s character during the punishment stage. However, trial counsel failed to make an offer of proof regarding what the evidence would have established, if admitted. The failure to make an offer of proof waived this error for purposes of appeal. 12 O.S. 1981
V.
Finally, appellant maintains he was denied a fair and impartial trial through *373allеged cumulative errors which occurred during the proceedings. However, we have held that “if the previous assignments of error are without merit, it follows that the proposition which asks that the previous propositions be considered collectively would also be without merit.” Brinlee v. State, 543 P.2d 744 (Okl.Cr.1975).
Accordingly, for the foregoing reasons, the judgment and sentence of the trial court is AFFIRMED.
BRETT and BUSSEY, JJ., concur.
Notes
. Burglary is more fully defined by statute as:
Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection. in which any property is kept, or breaks into or forcibly opens, any coin-operated or vending machine or device with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree.
.
Every person who, under circumstances not amounting to any burglary, enters any building or part of any building, booth, tеnt, warehouse, railroad car, vessel, or other structure or erection with intent to commit any felony, larceny, or malicious mischief, is guilty of a misdemeanor.