*1 apply job. tal to Officer reasons, Wheeler above foregoing questioned then appealed about what from is AFFIRMED. house, doing he was at Ms. Parker’s responded Smith that he heard a woman PARKS, P.J., BRETT, J., concur.
scream and therefore he shut the window to her house. A.M., approximately
At 3:12 Canine Offi- Phillip
cer dog Camblin and his arrived at dog
Ms. Parker’s home. The tracked the
intruder’s to spot ap- scent where the
pellant had been detained Officer appellant,
Wheeler. The wearing base- type cap, subsequently ball arrested. LOVELACE, Appellant, Maurice investigation Further police led to discovery appellant’s of two of the fin- gerprints screen, on the aluminum framed No. F-84-198. lying ground which was bent and Court of Criminal
just beneath the window believed be to point of entry to Ms. Parker’s residence. box, A small crafts had which been inside evening,
the house earlier was found ground screen; near the and al-
though originally Ms. Parker thought that possessions stolen,
none of her had been April
she jewelry realized in her box missing. assignment
As his ap- sole
pellant argues that the contrary verdict is law because circumstantial evidence
presented by the State was insufficient to
support a conviction. proper for determining test whether
the evidence is support sufficient con evidence,
viction is whether when light
viewed most favorable
State, establishes the essential elements of beyond
the crime a reasonable doubt.
Spuehler
(Okl.Cr.
1985). opinion are of plac-
We that evidence
ing appellant at contempora- the scene burglary,
neous evidence
necting breaking him entering dwelling
of Ms. Parker’s was sufficient to
establish the essential elements of de- first beyond
gree burglary a reasonable doubt.
We, therefore, find this of er- be
ror to without merit.
482 prosecutor, he closing argument
the “carrying gun a loaded commented step quarter a of an inch on a was one and using gun.” appel- the The trigger pull to attorney lant’s moved for a mistrial and jury that the be admonished. Sec- asked ond, during prosecu- the cross-examination appellant if he tor asked the remembered Sedan, filling in Kan- stopping at a station causing sas and them “some concern.” Palmer, Appellate Public Deputy Patti objection by an the The court sustained Defender, Norman, appellant. for appellant’s attorney grounds on the Gen., question Tomilou cross-examina- Turpén, Atty. the was Michael C. Gen., Liddell, Gentry Atty. Oklahoma tion as there was no direct reference to the Asst. City, appellee. The subject in direct examination. attorney
lant’s then moved for a mistrial on prosecutor OPINION grounds the that the had insert- In ed a reference to other crimes. both BUSSEY, Judge: denied motions instances the court defense in the Dis- appeal from his conviction On first instance the court for mistrial. the No. Osage County, of Case trict Court jury the admonished the before CRF-82-113, Robbery charge of involved,” that there was “no measurement Firearm, a sen- in which he received in instance the court admon- and the second (24) years’ imprison- twenty-four of tence question. jury ished the not to consider the ment, assignments appellant raises two many occasions that a We have held on of error. to the not to trial court’s admonitions the eve- Briefly, the facts show that on usually consider the remarks of counsel 12, 1982, appellant ning August unless it is of such nature cures an error store into a U-Tote-M convenience walked considering the evidence as to deter- after Pawhuska, Oklahoma, pur- in and after 513 mine the verdict. Kitchens chasing pack cigarettes, pulled out (Okl.Cr.1973). In view of the P.2d 1300 holding gun gun, laid his hand guilt, the re- overwhelming evidence stated, counter, your money.” “I want prosecutor cannot be said to marks of the placed approximately $135.00 The clerk adversely af- prejudicial as to have be so appellant who sack and handed it to the impartiality fected the fairness I’ll do “give me a few minutes said proceedings. We have examined other fled. He something you,” bad to and he prosecutor during made comments in Kan- apprehended a hours later was few appellant closing argument of which positively identified At trial the clerk sas. nothing requiring modi- complains and find man her. appellant as the who robbed assignment of reversal. This fication or his first of error merit. error is without an unfair appellant alleges that he received assignment of For his second questions trial comments because alleges that an excessive sen appellant closing cross-ex prosecutor during consistently imposed. “We have tence was the errors improper. amination modify not a sentence held that we will assignment, only two were alleged in this conscientiously say that un can unless we imposition of preserved by the properly circumstances, der all the facts Therefore, we will ad timely objections. as to shock sentence is so excessive which the only alleged errors to dress Doty of this Court.” See, conscience objected. Tucker v. (Okl.Cr.1978). First, The during year well within Accordingly, I find no for mod- range established for ifying this offense. The the sentence overwhelming, imposed we say cannot that the sentence
shocks conscience of the Court. and sentence appealed
from AFFIRMED. is
BRETT, J., concurs. PARKS, P.J., specially concurs. Riley ROBERTS, Appellant, Wilson PARKS, Presiding specially Judge, con- v. curring:
I agree majority opinion as to feel, however, the outcome I of this case. No. M-84-150. suggest opin- need to that this Court’s Court of Criminal 350, ion in Tobler v. 688 P.2d (Okl.Cr.1984), very O.B.J. 1789 be read 11, 1986. carefully, highlights position as it 20, As Corrected March prosecutorial this Court on at misconduct bar, the trial level. the case at precariously close to re- least, at
versible modification However, imposed.
of the sentence overwhelming was so as prejudice any not reveal due to the er- prosecutor.
rors made
It many should be noted that of the
errors and comments were not trial,
objected therefore, to at
only reviewed for fundamental error and
prejudicial Having effect. reviewed the
record, agree I conviction must be
allowed stand.
As to excessiveness (24) year
lant argues that there is no long course, of a sentence. it has
long been held that this Court will not
modify a sentence unless it shocks the
science this Court. Dodson Judge succinctly
As Nix stated in Beeler (Okl.Cr.1959):
“No doubt the in a much better
position punishment assess than Appeals. They
the Criminal Court
heard and had occasion to observe the testimony prose-
witness and the which,
cuting witness if believed
jury, justified their verdict.”