Butler v. State
| Decision Date | 21 May 1982 |
| Docket Number | No. F-81-304,F-81-304 |
| Citation | 645 P.2d 1030 |
| Parties | Lemuel BUTLER, Jr., Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Lemuel Butler, Jr., hereinafter referred to as the defendant, was convicted in Oklahoma County District Court, Case No. CRF-80-3504, of Burglary in the Second Degree, After Former Conviction of Two or More Felonies, was sentenced to twenty (20) years' imprisonment, and he appeals.
Late in the evening of August 30, 1980, Police Officers Shoals and Casteel responded to a radio dispatch regarding the activation of a silent alarm at the Joe Esco Tire Company located at the corner of N.E. 23rd and Kelley in Oklahoma City. The officers approached the business premises without engaging the emergency equipment on their vehicle. Officer Casteel testified that as he neared the front door of the establishment he saw a man duck down behind a counter, whereupon he yelled to Officer Shoals that a suspect was present inside the store. Officer Shoals stated that he responded to Casteel's communication by alerting police headquarters of the situation and proceeding to the opposite side of the building. As he got out of his vehicle he heard a noise at the back door of the shop. He testified he observed a subject, whom he identified in court as the defendant, run from the door. The officer testified he drew his service revolver, ordered the defendant to halt, arrested him and placed him in the rear seat of the scout car. Continuing his testimony, Officer Shoals related that he and another officer, by use of their hands alone, entered the building through the door that the suspect had exited, without doing any damage to the door, by pulling on the bottom of it. He observed that a safe had markings on it as if someone had attempted to open it, and that a large screwdriver, a large pair of pliers and a hammer with a sharp end on it were lying in front of the safe.
The store manager testified that he had closed the store at noon on the day in question, and had turned on the burglar alarm, which would not operate unless all the doors were locked. He stated he had occasion to return to the store late that evening in response to the alarm being set off, and he noticed that the safe had been tampered with since he had secured the premises.
The defendant took the stand in his own behalf and admitted five (5) prior felony convictions. He said he had been to visit a friend and took a path through a vacant lot in back of the Joe Esco Tire Store, and as he passed the store he was arrested.
In one of his assignments of error, the defendant alleges that the trial court erred in not sustaining his demurrer (motion for a directed verdict), entered after the State's presentation of evidence. A motion for directed verdict admits the facts the evidence tends to prove. Where there is any competent evidence reasonably tending to sustain the allegations of the charge, the trial court should not sustain a motion for directed verdict. Byrne v. State, 482 P.2d 620 (Okl.Cr.1971); Maynard v. State, 625 P.2d 111 (Okl.Cr.1981). This Court finds that in view of the overwhelming evidence of the defendant's guilt the trial court correctly overruled the motion for directed verdict. See also, Campbell v. State, 640 P.2d 1364, 53 O.B.J. 387 (Okl.Cr.1982). This assignment of error is without merit.
The defendant also argues that the Oklahoma Habitual...
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