*1 аllegation, we need find merit we assignments of remaining ROWLAND, Anthony Ray Appellant, address the
error. previously held As have We Oklahoma, Appellee. STATE neces Battery With Intent Kill sault and Battery sarily an Assault and includes No. F-87-832. Bodily to do Harm. Brown
With Intent Appeals of Criminal of Oklahoma. 46, (Okl.Cr.1983). Fur ther, the court submit to the trial should Aug. 1991. instructions concern jury consideration Sept. As 1991. Corrected offense, ing every whether lesser included not, requested the evidence rea or where
sonably the instruction. support tends (Okl.Cr.
Penny Supreme
The United States Court stated States, 412 U.S. Keeble United 1993, 1998, 36 L.Ed.2d S.Ct.
(1973), that where one of elements doubt,
the offense is defendant offense,
appears to be of some likely its doubts in favor
jury resolve Here, major
of conviction. one issue appellant’s intent.
dispute was
Although appellant he asserted that stop the harassment and that
wanted to tampering whoever had been
would shoot truck, his he did not state whether kill, harm, merely to or
frighten. issue de- should have been Here, jury.
cided much like Keeble,
situation in where defendant’s very dispute,
intent was much in de- convicted him of lesser have if
gree option had been assault Keeble,
available.
As included offense Dangerous Battery With
of Assault evidence,
Weapon supported by the we court
find the trial committed reversible failing such instruction
error submit jury. foregoing, the upon judgment
Based RE-
and sentence REVERSED trial.
MANDED for new P.J., LUMPKIN, V.P.J.,
LANE, JJ., JOHNSON,
PARKS concur. *2 Smith, Norman, appellant.
Allеn
Gen.,
Henry, Atty.
Robert H.
Diane L.
Gen.,
Slayton,
Atty.
City,
Asst.
Oklahoma
appellee.
OPINION
LUMPKIN,
Judge.
Vice-Presiding
Appellant, Anthony
Rowland,
Ray
I,
tried
for the
crimes
Count
Burglary
II,
Degree,
the First
and Count
Dangerous Weapon,
Assault with a
County,
District
of Tulsa
Case No.
deliberation,
CRF-87-1002. After
thе jury
I,
returned
guilty
verdicts of
of Count Bur-
glary in
punish-
the First
and set
(7) years imprisonment,
ment at seven
II,
of Count Assault with a Dan-
gerous Weapon. The trial court sentenced
accordingly. Appellant
perfected
has
appeal to this Court from judgment
sentеnce rendered
Count I. We affirm.
8, 1987,
early morning
of March
Gary
Officer
Otterstrom of the Tulsa Po-
Department
lice
dispatched
Jackson,
Cynthia
home of
East
Inde-
A,
pendence,
Tulsa,
Apt.
call designat-
on a
ed “trouble unknown”. Otterstrom testi-
dispatcher
fied that the
indicated the caller
during
was disconnected
the conversation.
When the officer arrived he found that the
front door had been kicked in and the door
split.
frame
He also
two
observed
shoe
door,
prints on
level with
knоb.
apartment,
Cynthia busted out at Edwards
and dur-
Edwards and
Kenneth
Both
ing
they
asleep
were
the conversation
claims
testified
they
heard loud
either him or
bedroom
Edwards threatened to shoot
Jackson’s
kicking
someone
associated with
stated that he was
noise
his kids.
*3
Edwards went back to
front door.
drinking
during
early
the
Jones
the
hours
with
only by
not
the
sleep
and was awakened
go
of March
when he decided to
Jackson,
Appellant
by
also
screams
he
apartment
over to the Jackson
because
Both
and Jack-
strangling him.
Edwards
thinking
danger
kids
got to
about the
his
as the
men wrestled
testified that
two
son
might
in from
his conversation with
Appellant
yelling that Edwards
was
about
Appellant
that he
Edwards.
admitted
go
jail
threatened to
him to
to
and
caused
upstairs,
kicked
the front
and went
door
also
Edwards
Appellant
kill him.
accused
going
the
of his children.
first
to
room
men
killing
children. The two
were
his
their
he en-
"When he found
beds empty
Jones, Appel-
wrestling
Perry
when
still
room
Jackson and Ed-
tered the
where
cousin,
the upstairs
entered
bedroom
lant’s
questioning
lay sleeping
began
and
wards
begin
pull Appellant off of Edwards.
and
to
them
the whereabouts of his kids.
about
meantime, Jackson ran downstairs
In the
Appellant stated that
asked him to
Jacksоn
However,
soon
police.
call the
as
to
up
the
jumped
leave
Edwards
out of
when
men, Appellant
separated the two
Jones
swing
Appel-
to
bed and started
at him.
As
Jackson downstairs.
Edwards
followed
Edwards,
then hit
lant stated
he
scrеam
started to dress he heard Jackson
knocking him back on the bed when Jack-
ran down the
from downstairs. Edwards
beating
him
him
jumped
son
on
and started
just
Appellant
to
and
stairs
in time
see
point
of the head. At that
on
back
apartment. At the same
Jоnes leave the
room, grabbed him
Jones entered
dining
he
that the
room table
time
noticed
waist,
pulled him
around his
and
off
from
two or three feet
its
had been moved
leaving,
As he
were
Edwards.
and Jones
position
on
and noticed a bruise
normаl
telephone.
he
on the
observed Jackson
her
thigh and
elbow. Edwards
Jackson’s
them,
picked up a
saw
she
When Jackson
seeing Appellant
a knife.
did not
recall
it at
chair and came
the door
threw
she was
Jackson testified
while
However,
he nor Jones were
them.
neither
calling
Appellant
process
police,
any
having
kind of
Appellant
hit.
denies
telephone
out of the wall
snatched the
cord
weapon
him
he went
to the
thigh,
kicked
which caused
hеr
only
he
apartment, and maintains that
went
up against
to fall
and over the table.
her
if his
apartment
see
kids were
grabbed
up
she
she
a chair for
got
When
danger
to commit a
and had no intent
Appellant
coming
was
protection because
crime.
However,
knife.
for her with a
assignment
Appel-
In
first
of error
his
Appellant
raised the
testified that
never
was insuffi-
lant
that the evidence
contends
kept
it down
his side. In her
knife but
for
De-
conviction
First
cient to sustain
testimony
sustained a
Jаckson claimed she
gree Burglary because the State failed
arm, leg
and back from
alterca-
sore
to commit As-
any
evidence of intent
a peri-
also stated that over
tion. Jackson
Dangerous
specifi-
Weapon, as
sault
awith
protec-
od of time she has obtained several
Ap-
The
cally alleged in
Information.
against
Appellant,
which
tive orders
jury
failed
pellant argues that since
into evidence over the ob-
were introduced
the crime оf Assault with
convict him of
counsel.
jection
defense
have
Dangerous Weapon they could not
Appellant
the stand and testified
took
offense of First
him
found
made a call to
that on March
Degree Burglary.
answered the
Ms. Jackson but Edwards
Burgla
To warrant conviction
him that Jackson
telephone and advised
necessary
not
ry in
First
it is
stated that he
not
home.
actually committed a
to have
for defendant
got into a
on the
and Edwards
discussion
house,
neces-
dwelling
but it is
night
crime in the
telephone
a windshield was
about the
Appellant to
sary
jury's
guilt
sup
have the intent
determination of
time of
ported by
commit a crime at the
his unlawful
prop
evidence. We find this
dwelling.
entry of the
See Newsom v. osition to be without merit.
(Okl.Cr.1988);
allegation
his second
error Ap
(Okl.Cr.
error. PARKS, JJ., concur in BRETT and *5 error, proposition his final of In result. erred the trial court Appellant claims that objec admitting, over defense counsel’s PARKS, concurring in Judge, result: tion, of Appellant’s of violations evidence disposition agree the ultimate of I O.S.1981, protective orders. Title However, I separately be- this case. write pro 2404(B), Statutes Oklahoma § deter- I am disturbed the Court’s cause acts vides other сrimes or that Evidence of Entry and Detainer mination that Forcible prove is not admissable to character solely a offense. I find offense acted is civil person a in order therewith; may be Title the Criminal Law conformity it listed under Statutes, purposes, such at 1351. admissable for other section Title Oklahoma motive, intent, proof opportunity, prepa “Forcible That section entitled ration, plan, identity knowledge, or absence part: in relevant Detainers” states оf mistake or accident. procuring, en- Every person guilty of State, Wadley assisting another to use couraging or (Okl.Cr.1976), Wigmore II on Ev- citing entering upon or any force, or violence idence, 1940), (3rd recognized ed. possessions § detaining any lands оr other particular at a that where hostile emotions guilty is of a misdemean- of another ... case, proved are in a the exist- time to be supplied) (emphasis or. per- ence of same emotion same classi- Clearly, properly the offense Thus, proper. time evi- son another is Nonetheless, agree I fied as a crime. between an previous dence of altercations majority that a violation statute is Appellant and deceased relevant burglary. not a lesser included offense motive, malice, or “even establish intent though evidence constitutes evidence such State,
of another crime”. See Lamb (Okl.Cr.1988); Manning
P.2d 887 (Okl.Cr.1981). 327, 330
Although was found With a charge on the of Assault
Dangerous Weapon, intent to commit fact, an issue. Holman
crime was still 97 Okl.Cr.
(1953), clearly that where established charged, evi an element of the offense at offenses committed or
dence other