Rounds v. State

• Decision Date: 06 February 1984
• Docket Number: No. F-82-332,F-82-332
• Citation: 679 P.2d 283
• Parties: Ricky ROUNDS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 283

679 P.2d 283

Ricky ROUNDS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-82-332.

Court of Criminal Appeals of Oklahoma.

Feb. 6, 1984.

Rehearing Denied April 17, 1984.

An appeal from the District Court of Lincoln County; Donald E. Powers, District Judge.

Ricky Rounds, appellant, was convicted of Robbery with a Dangerous Weapon, After Former Conviction of a Felony, in the Lincoln County District Court, Case No. CRF-81-102, before the Honorable Donald E. Powers, and was sentenced to ten (10) years' imprisonment, and he appeals. AFFIRMED.

Thomas G. Smith, Jr., Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen. of Oklahoma, Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge.

Ricky Rounds was convicted of Robbery With a Dangerous Weapon, After Former Conviction of a Felony. He was sentenced to ten (10) years in prison. We affirm.

I.

Appellant's first proposition of error includes several contentions dealing with different aspects of the fact that the State relied at trial on the theory that he aided and abetted the crime charged.

A.

He contends that the evidence was insufficient to show that he aided and abetted the crime.

As David Calvert was returning to his home in Shawnee, Oklahoma, from a church choir rehearsal, his car broke down just south of Chandler, Oklahoma, on Highway 18. He took his guitar, valued at five hundred dollars, and started walking south toward Shawnee. After a short distance, a car stopped and the driver, Jerry King, offered him a ride.

After several miles, they passed a dirt road. King inquired of a male passenger in the front seat, identified in other testimony as the appellant, "is this the turn?" Appellant said "yes", or words to that effect, and King backed up to the side road and proceeded down it at high speed for about a mile. He then turned the car around in an intersection and stopped the car.

The appellant then picked up a double-barrel, sawed-off shotgun and held it up in his lap briefly where Calvert could see it. He opened the car door and stepped out. Calvert's attention was then drawn to the driver, King, who had gotten out of the car and pulled the front seat of the two-door car forward. King ordered Calvert out, and told him to leave his "stuff", indicating the guitar. Calvert did so.

Calvert left the guitar against his will. No one touched or harmed him; he just saw the gun. Appellant's actions scared him, and he thought he was going to be killed.

When he stepped out of the car, King put a knife to his throat and forced him to the rear of the vehicle. King threatened to kill him if he did not remain quiet concerning the incident.

As he was led to the back of the car, Calvert heard a female passenger, Darla Gann, crying, and she asked "Why are you doing this?" The appellant told her to shut up. Calvert suffered a cut from his neck to the lower part of his throat, but when the car drove away, he managed to walk to a residence and summon the authorities.

Darla Gann testified that when King stopped the car on the country road, appellant took the shotgun and walked at least as far as the back windshield of the car. Gann then got into the front seat in an attempt to drive away, but appellant returned to the car and told her to settle down or else King would kill her.

When King returned to the car, appellant asked him if he got the victim's billfold; King said that he failed to think of it. Appellant then asked King if he had killed the victim. King said he had, but appellant said "he better be sure because his (appellant's) feetprint (sic) were back there." King assured him, falsely as it turns out, that he had killed Mr. Calvert.

Over the next several hours, Gann and the two men drove to Shawnee and then to Oklahoma City, finally arriving in Chandler between 4:00 and 5:00 in the morning. Appellant put the stolen guitar in a small shed at a residence in Shawnee, and put the shotgun in his place of business in Chandler.

The defense presented evidence that King had menaced friends and acquaintances with the sawed-off shotgun and the knife during the evening of September 16. His behavior was linked to the consumption of beer and alcohol, the use of marijuana cigarettes, the loss of a bet on a sporting event, and possibly the recent loss of a loved one. Throughout the evening appellant had acted to prevent King from harming others. Indeed, just before leaving the scene of the crime, appellant refused King's demand that Gann, King's girlfriend, be left with the victim.

Appellant testified that King told him before picking Calvert up that he was going to take the victim's guitar. When King passed the country road and asked if it was the turn, appellant responded without knowing what King was referring to. Appellant said that he picked up the shotgun after the car stopped and put it on the other side of him to get it out of the way, so that he could exit the car to help Calvert. However, Gann testified that it was not necessary to move the gun in order to get out of the car, and that when appellant later exited the vehicle in Shawnee, he did not move the weapon, even though it was in the same place as before.

Appellant denied asking about the victim's wallet. After King said he had killed Calvert, appellant told King that he was crazy, that "you got my dang feetprints (sic) back there by him and you killed him, you're a damn fool, you're trying to get both of us in the penitentiary." Appellant testified that he put the shotgun in his place of business because he did not want anyone else to get hurt.

Appellant's testimony contradicted that of Calvert and Gann, but was weakened somewhat by the disclosure of his prior convictions for unlawful delivery of marijuana, and defrauding a utility. On the other hand, Gann's testimony was impeached by evidence that she made statements after the crime suggesting that appellant did not have much to do with the crime. There was evidence of similar statements by King.

We are unable to conclude that the evidence was insufficient. Robbery is the wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. Parnell v. State, 389 P.2d 370 (Okl.Cr.1964). Aiding and abetting a crime involves acts, words or gestures encouraging the commission of the offense, either before or at the time of the commission of the offense. Frazier v. State, 624 P.2d 84 (Okl.Cr.1981).

Conflicts in the evidence, and the weight to be given any piece of evidence, is within the exclusive province of the jury, although the State must establish a prima facie case. Id. It is clear that an armed robbery occurred, and there is sufficient evidence, if believed by the jury, that appellant encouraged the offense.

B.

Appellant also contends that the State could not rely on the theory that he aided and abetted the offense since the information did not expressly allege as much, and since the information alleged that the fear was caused by the shotgun, while the evidence at trial showed that it was King's knife which caused the victim to part with his property. This contention is without merit.

The information need not specifically allege that the defendant aided and abetted the offense. Bowen v. State, 606 P.2d 589 (Okl.Cr.1980). Additional facts need not be alleged beyond those required to charge the crime against the one aided and abetted. See, 22 O.S.1981, § 432.

Moreover, the evidence at trial confirmed the allegation that it was the shotgun which caused the victim to part with his property. To constitute robbery, the fear or force must be employed to obtain or...