Bryant v. State, F-77-809
| Decision Date | 11 October 1978 |
| Docket Number | No. F-77-809,F-77-809 |
| Citation | 585 P.2d 377 |
| Parties | Ricky Don BRYANT, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The decision of this Court was first rendered in this appeal on June 27, 1978. Thereafter, within the time limit set by the Rules of this Court, appellant filed his petition for rehearing. On July 17, 1978, the initial decision was withdrawn and the following decision is filed in lieu of the original.
Appellant, Ricky Don Bryant, hereinafter referred to as defendant, was charged in the District Court, Seminole County, Case No. CRF-77-29, with the offense of Burglary in the Second Degree in violation of 21 O.S.1971, § 1435, After Former Conviction of a Felony, 21 O.S.Supp.1977, § 51. The case was tried to a jury, and a guilty verdict was returned. Punishment was assessed at fifteen (15) years' imprisonment. From judgment and sentence defendant has perfected an appeal to this Court.
The first witness was Joy Blanton who stated that she and her husband lived in a mobile home in a rural area outside of Seminole. On the morning of January 3, 1977, when she and her husband left for work, all was intact. At about 2:30 p. m. she was called by her mother, and as a result of that call she returned home. There, she observed that the rear door to her home had been pried open. However, nothing had been stolen.
Ed Lowe testified that he worked for an oil company and that on the date in question he and Randy Whelan, a co-worker, were checking an oil well near the Blanton residence. Mr. Lowe testified that when they first arrived at the well site they observed a white over maroon automobile in the Blanton driveway, which he knew did not belong to them. Further, when he first observed the car he could not see anyone about. Subsequently, as they unlocked the gate to the oil lease, the strange car was driven down the Blanton driveway and stopped in the vicinity of the witness. The driver of the car, identified as the defendant, got out and asked several questions concerning whether it would be all right to hunt in the area. The witness replied that he did not know, and Randy Whelan stated that the land across the road from the Blanton's belonged to Sid Morgan and that defendant would have to check with him. The witness testified that at this point the defendant stated he had already been to the Morgan home (which the witness stated was visible from where they stood and towards which Randy Whelan gestured), and there was no one home. The defendant then left, and the witness and Whelan completed their work on the oil well within five minutes. They drove over to the Blanton home and observed that the back door was partially open, whereupon they immediately drove to Mrs. Blanton's mother's house and informed her of what they had observed. Subsequently, the police were called, and the witness returned to the Blanton home where on closer inspection it was discovered that the back door had been pried open.
Randy Whelan's testimony was substantially identical to that of Ed Lowe.
Sid Morgan was next to testify. He stated that he lived near the Blantons and that on the date in question when he arrived home from work at about 4:30 p. m. he received a telephone call from Mrs. Blanton, advising him that her home had been burglarized. Mr. Morgan then checked his property and noted that three chain saws and some tools were missing from his garage. Subsequently, he went to the Blanton's home and told Deputy Sisco of this. The witness testified that two of the chain saws were later recovered, but the witness did not know the source.
Kenneth Sanford stated that he knew the Blantons and lived about a mile from their home. On the date in question about 4:00 p. m., he was driving out of his driveway when he observed the defendant, in a white over brown automobile, driving onto his property. The witness confronted the defendant, who stated he was lost. The witness also stated that his driveway is kind of an extension of a gravel county road and that the road terminates at his home. He further stated that his home had not been broken into, and that he is generally suspicious of persons on that road whom he does not know. The witness also obtained the license tag number from the defendant's car.
Deputy Sisco investigated the break-in at the Blanton residence, the subject of the present case. He observed where defendant's vehicle had been parked and also several footprints which seemed to lead from the car to the mobile home and back. These were photographed. Similar footprints were later observed by him at Sid Morgan's residence, and these too were photographed. All photographs were introduced into evidence.
Deputy Sisco further testified that defendant's home was searched pursuant to a warrant, but that nothing incriminating was found. Also, when defendant learned that his home had been searched, he voluntarily turned himself in. The defendant, when interviewed by officers, admitted having been at the Blanton residence and stated that he was looking for a place to hunt. He also denied knowledge of any burglaries; however, Deputy Sisco stated that the defendant offered to assist in other cases for consideration in this case.
Wanda Sue Ivey testified that on December 27, 1976, at about noon she returned to her home near Konawa and discovered that it had been burglarized. Several guns were missing.
Larry Kennedy stated that on December 27, 1976, shortly before noon he passed by the Ivey residence and observed a maroon colored car nearby and a person walking, apparently from the garage. Several minutes later, he observed the same car a short distance away at his wife's service station. He could not identify the defendant as the driver of that car, however, there was a resemblance. Mr. Kennedy took the car's tag number and gave it to Mrs. Ivey.
Seminole County Deputy Sheriff Colbert, the last witness for the State, testified as to his investigation.
The defendant and his wife testified in his behalf. The defendant admitted being at the Blanton home but denied stopping at the Morgan's. He also denied telling Randy Whelan and Ed Lowe that he had been there. He further stated that he did not remember the incident with Mr. Stanton and denied being at the Ivey home on December 27. He also stated that he did not own shoes with soles matching those in the photographs. The defendant admitted convictions for burglary and maiming. He admitted owning the car in question and stated that he was actually looking for a place to hunt squirrels on January 2. When he knocked on the door of the Blanton's mobile home, he did not notice anything wrong with it.
Defendant's first assignment of error complains of the admission of evidence of other crimes. The subject case involves the break-in at the Blanton residence on January 3, 1977. The State was also permitted to prove, as noted above and over defendant's objections, that several chain saws and some tools had been stolen from Sid Morgan's garage on that same date, and that defendant's car and a person resembling the defendant had been seen at the Ivey home shortly before it was discovered to have been burglarized. Defendant also complains of the testimony of Larry Kennedy, who testified that he saw the defendant near his home on January 3. Strictly speaking of course, Mr. Kennedy's testimony did not involve other crimes, since no crime was committed.
Evidence of other crimes, though generally inadmissible, is admissible to prove intent, identity, motive, absence of mistake, and common scheme or plan embracing both crimes such that proof of one tends to establish the other. Evidence of other crimes is not, however, merely admissible to show that the defendant has a propensity to commit crime. Roulston v. State, Okl.Cr., 307 P.2d 861 (1957).
There is really only one factual question in this case and that is the question of...
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