Favro v. State, F-84-236

• Citation: 749 P.2d 127,1988 OK CR 18
• Decision Date: 14 January 1988
• Docket Number: No. F-84-236,F-84-236
• Parties: John Allen FAVRO, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 127

749 P.2d 127

John Allen FAVRO, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-84-236.

Court of Criminal Appeals of Oklahoma.

Jan. 14, 1988.

Mac Oyler, Oyler & Bane, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, John Allen Favro, was charged in Oklahoma County District Court in Case No. CRF-80-2671, for the felony of Shooting With Intent to Kill, After Former Conviction of Two or More Felonies. He was found guilty by a jury of Assault and Battery With a Deadly Weapon, After Former Conviction of Two or More Felonies. He was sentenced to serve forty-five (45) years in prison.

Appellant met up with Danny McEntire and Tim Newby at a bar called Tricky Dicky's Club in Oklahoma City on July 9, 1980. Appellant asked McEntire and Newby for a ride to his jeep that was at 122nd and North May. This was at approximately 11:00 p.m. They agreed to take appellant to his car, but told him they would need gas money to get to their home in Choctaw; he agreed. On their way, they stopped at several bars, and appellant bought drinks for all three of them. When they finally got to appellant's car, at 3:00 a.m., he refused to give McEntire and Newby the promised gas money. Appellant testified that he had bought the drinks at the bars in lieu of the gas money and that McEntire and Newby understood that.

McEntire admitted to having taken, in addition to three or four beers, a Quaalude and smoking marijuana. He also admitted he was so mad when he got out of the truck he intended to beat up the appellant and take the gas money by force. Subsequently, appellant shot McEntire in the head, which caused McEntire to be comatose for six weeks and which has partially impaired his memory of the events prior to the shooting. McEntire admitted he knew appellant was armed before he started for him, and that he "intended on whopping his butt" anyway. McEntire does not remember if he was armed, but appellant testified McEntire had a strip of car molding in his hand, and such was found at the scene. Newby had a tire iron that he threw at appellant when he drove off which hit appellant's car. Appellant then drove back to where McEntire and Newby were and that is when the shooting occurred. Appellant claims he did not aim, that he fired only one shot, and it was not intended to hit McEntire or Newby, but to scare them. Newby says he fired three times, but only one hit anything. Three casings from a .38 were found at the scene. There is no doubt Newby and McEntire were drunk. Newby estimated that he and McEntire drank three or four pitchers of beer in addition to taking Quaaludes and smoking marijuana in the eight hours prior to 11:00 p.m.; they each had two mixed drinks between 11:00 p.m. and 3:00 a.m. Appellant had also been drinking, but it is not clear how much.

Appellant's third assignment alleges reversible error was committed in the instructions given the jury. We agree. The State claims the errors, if any, were harmless and that appellant failed to preserve them for review. In answer to this argument, we restate that it is the duty of the court, independent of a request or objection from the parties, to instruct the jury on all of the elements of the offenses charged. Maple v. State, 662 P.2d 315 (Okl.Cr.1983).

We find two major flaws in the instructions given the jury. First of all, both parties, as well as the trial court, have erroneously characterized the offense for which appellant was convicted, Assault and Battery With a Deadly Weapon, as a lesser-included offense of Shooting With Intent to Kill, the crime with which he was charged. 21 O.S.1981, § 652. The jury should have been instructed on only one of these since "Section 652 is intended to cover all assaults made with the intent to kill: that the first sentence is for assaults with a firearm and the remainder of the Section is for other assaults with such intent." Meggett v. State, 599 P.2d 1110, 1113 to 1114 (Okl.Cr.1979). Even though the second portion of Section 652 has a lighter maximum sentence than the first part, that does not make it a "lesser-included offense."

Secondly, noticably absent in the court's instruction number four is a definition of specific "intent". It reads as follows:

The jury is instructed that although not set forth in the information the crime of Assault and Battery With a Deadly Weapon is a lesser included offense to the crime of Shooting With Intent to Kill.

In the event that the jury fails to find the defendant guilty of the crime of Shooting With Intent to kill it may then consider whether the defendant...