Dean v. State

• Decision Date: 09 November 1988
• Docket Number: No. F-86-704,F-86-704
• Citation: 764 P.2d 1355
• Parties: Charles Edward DEAN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1355

764 P.2d 1355

Charles Edward DEAN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-704.

Court of Criminal Appeals of Oklahoma.

Nov. 9, 1988.

An Appeal from the District Court of Oklahoma County; Jack R. Parr, District Judge.

Charles Edward Dean, appellant, was convicted of three counts of assault and battery with a dangerous weapon, two counts of assault with a dangerous weapon, and one count of larceny of merchandise from a retailer, in the District Court of Oklahoma County, Case No. CRF-85-1750, sentenced to seventy-five (75) years imprisonment (counts I, II, III), eighty-five (85) years imprisonment (count IV), fifty (50) years imprisonment (count V), and four (4) years imprisonment to be served consecutively, and appeals. AFFIRMED.

Allen D. Gray, Jr., Asst. Public Defender, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Charles Edward Dean, appellant, was tried by jury and convicted of Assault and Battery With a Dangerous Weapon (21 O.S.1981, § 645) (Counts I, II, III), Assault With a Dangerous Weapon (21 O.S.1981, § 645) (Counts IV, V), and Larceny of Merchandise From a Retailer (21 O.S.1981, § 1731) (Count VI), After Former Conviction of a Felony (21 O.S.1981, § 51(A)), in Case No. CRF-85-1750, in the District Court of Oklahoma County, the Honorable Jack R. Parr, District Judge, presiding. The jury assessed punishment at imprisonment for seventy-five (75) years (Counts I, II, III), eighty-five (85) years (Count IV), fifty (50) years (Count V), and four (4) years (Count VI). Judgments and Sentences were imposed in accordance with the jury's verdict, the sentences to run consecutively. We affirm.

At 6:45 p.m. on April 2, 1985, an Oklahoma City Safeway employee saw appellant walk out of the store carrying ten to twelve cartons of cigarettes under his arms. The cigarettes were not bagged, contrary to store policy. An employee followed appellant outside and asked to see a receipt. Appellant dropped the cigarettes, pulled a knife and slashed at the employee's throat. Appellant turned, ran at another employee and stabbed him in the chest. A husband, wife and their five-year-old daughter walked from the store towards their car. Appellant jumped on the husband's back and stabbed him twice in the chest, slashed the mother's side and tried to cut the five-year-old girl. Appellant picked up some of the cartons of cigarettes and walked to his apartment behind the Safeway store. At least two of the customers followed appellant to his apartment and identified him to the police, who arrested appellant outside his apartment. The officers recovered the stolen cigarettes after appellant consented to a warrantless search.

For his first two assignments of error, appellant asserts the trial court erred by overruling his demurrer to the evidence for larceny of merchandise from a retailer (count VI) and for assault with a dangerous weapon (count IV). Appellant argues the State failed to establish the store's ownership of the cigarettes and their value, and failed to establish he tried to stab the five-year-old child.

"A demurrer to the evidence is a motion for a directed verdict which admits for the sake of argument the facts which the State's evidence tends to prove. If there is any competent evidence reasonably supporting the allegations for the charge, the demurrer should be overruled." Strube v. State, 739 P.2d 1013, 1017 (Okla.Crim.App.1987).

Ownership of property may be established as being in the person in whose possession it was at the time of the larceny. Crawford v. State, 35 Okl.Cr. 135, 248 P. 880, 881 (1926). Here, three witnesses testified they saw appellant carry two armloads of cigarettes from the store, which had not been bagged in accordance with store policy, and he refused to produce a receipt for the merchandise. The assistant store manager established the value of the cigarettes at $9.49 per carton. The State proved by direct evidence that appellant took "merchandise" from a "mercantile establishment" and the taking was "wrongful." See 22 O.S.1981, § 1341(2)(3)(4). We find the State amply established ownership by Safeway of...