Nash v. State
685 P.2d 972
Okla. Crim. App.
1984
Check Treatment

*1 NASH, Collier, Appellant, Oklahoma, Appellee. The STATE

No. F-83-585. Appeals of Oklahoma. of Criminal

Court

July Schay, Appellate Public Defend-

E. Alvin Norman, er, appellant. Gen., Turpén, Atty. Robert W.

Michael C. Gen., Cole, Atty. City, for Asst. Oklahoma appellee.

973 legislature We note further that OPINION en- § replacement acted 1541.1 as a for 21 BUSSEY, Judge: Presiding § O.S.1961, 1541.1 Both the title and the Nash, appellant, The essential elements of the offense as deline- Collier, in the was convicted by unchanged, ated the statute remained County, of Tulsa Case No. District Court and are as follows: CRF-82-4421, Obtaining Money by of who, Every person with intent to cheat Pretense, After Former of False Conviction defraud, and attempt shall obtain or (22) Felony, twenty-two a was sentenced to person, any corpora- obtain from firm or prison, appeals. in years’ and she any money, property or valuable by presented The evidence the State at thing by by any ... means or use of trick trial established that on the afternoon of deception, or rep- or false or fraudulent 6, 1982, appellant entered a December resentation or statement or or Target purchased store and a stereo for by any other means or instrument or plus receipt tax. She was a $99.99 commonly device called the ‘confidence purchase. evening Later in the on for her game’, by any or means or use of day, appellant re-entered Tar- the same checks, bogus or any or other written get, picked up a stereo identical to the one printed engraved or or instrument or earlier, purchased presented and she had coin, spurious guilty (Empha- shall be ... receipt the stereo and the to a clerk both sis requested and a refund. Unbeknown to appellant, a store detective had been We find that the cases which control observing throughout period. her this The are 21 issue Bennett v. Okl.Cr. advised of the situation clerk was 27, (1922), 204 P. 462 and Phenis v. telephone. via the in-house After detective 142, (1924). 28 229 P. 652 In Okl.Cr. Ben proceeded appellant the clerk a nett, held that on this Court reliance refund, the detective took the representation not an essential element custody. into § 1541, attempt because “a mere to de fraud is sufficient under this statute.” In

Relying on Carroll v. (Okl.Cr.1959), Phenis, 2 Taylor Territory, and this Court held that while the State 1, (1909), Okl.Cr. 99 P. 628 prove support change must reliance to a alleges prove § first that the State failed to 1542, made under the State faced no such crime, to-wit, an essential element of the § reaffirm burden under 1541. We these that victim relied on the defendant’s decisions, consequently, and hold that this Indeed, representations being true. appellant argues as the evi State’s assignment her second conclusively dence that Tar established appellant contends that the trial court com- get’s employees representa knew that the by giving mitted reversible error false, she the verdict tion which made during stage the first of the bifurcated supported by cannot be the evidence. following trial the instruction: Tay- note here that and both Carroll Instruction No. 7 O.S.1981, lor construed what is now question You are instructed that the sole § 1542, “Obtaining Prop- which is entitled for the consideration of the at this erty Signature on Under False Pretenses.” proceeding is whether the however, appellant, charged The ‘guilty’ guilty.’ defendant is or ‘not § O.S.Supp.1982, convicted under 1541.- punishment is not to be con- matter of 1, “Obtaining Attempt- which is or entitled pro- at this sidered ing Property by Decep- Trick or to Obtain ceeding. tion-False Statements-Confidenee Game.” Laws, 1967, c. §§ 1-7. find, therefore, contends instruction is not attached. We implies because it

highly prejudicial for- charges was notified of the felonly. of a her, mer conviction against consequently, she was not See, O.S.1981, prejudiced any way. in § 860(a), provides perti- 410. This of error is without part: nent *3 merit. proceed initially though The trial shall charged was the first of- the offense error, In her final fense; when the indictment or informa- appellant alleges the that an instruction prior reference tion is read all to of- jury during to the the second omitted; during fenses shall be the trial improper. of the trial was We note that reference of the case no shall be made object the did not to this instruc prior nor evidence received of offenses tion, nor did she submit a written instruc permitted by the rules except as of evi- designed any inadequacies tion to correct dence; judge the shall instruct the the trial court’s instructions. All fun but charged; only on the offense damental error therefore waived. instructed to deter- shall be further State, Maghe (Okl.Cr.1980). v. P.2d only guilt or innocence on the mine In that stipulated defense counsel charged, punishment and that offense at this time shall not be determined called, testify, court clerk would if as to identity, representation counsel, fi (Emphasis jury. nality felony of the three convictions al It is an rule of law that axiomatic leged, we find there was no fundamental complies an instruction which with a stat See, State, error. Browning v. 648 P.2d Blozy ute is not erroneous. v. (Okl.Cr.1981). also, (Okl.Cr.1976). P.2d 451 See Maines Accordingly, judgment and sentence (Okl.Cr.1983). This appealed from is AFFIRMED. asserts next that BRETT, JJ., specially PARKS and con- the failure of the to re-attach the State cur. page second to its amended information authority left the trial court without to PARKS, Judge, specially concuring: proceed proceed with a criminal habitual regard appellant’s assign- With second ing. disagree. purpose of an in ment of I an believe instruction more formation is to the trial establish court’s closely mirroring the statute would matter, be jurisdiction fair over practice. better Rather than tell jury, charge against notice to the of the accused “punishment is not to be considered him acquittal so that conviction or could at proceeding,” an instruc- prosecution be used as a to further ban point, punishment “at this 409; shall the same offense. 22 determined,” (Okl.Cr.1976). not be will have less chance Wilds v. P.2d 779 so, case, prejudicing record defendant. Even I instant reveals that say page charging a second cannot that in this case three former con suf- prejudice fered such preliminary require victions was attached to the reversal. information, upon which opinion I concur in the court’s in all other Moreover, ultimately bound over for trial. respects. attorney after the district amended the in formation, changing only charge from BRETT, Judge, specially concurring: obtaining obtaining money merchandise to defense counsel moved I concur that this conviction should be However, page grounds Judge to strike the second on the affirmed. I also believe punishment special that it would cause excessive Parks statement in his concurrence imposed, though page to be even is well taken.