Hainey v. State

• Decision Date: 10 June 1987
• Docket Number: No. F-84-136,F-84-136
• Citation: 740 P.2d 146
• Parties: Ronald Eugene HAINEY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 146

740 P.2d 146

Ronald Eugene HAINEY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-136.

Court of Criminal Appeals of Oklahoma.

June 10, 1987.

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

Michael C. Turpen, Atty. Gen., Hugh A. Manning, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

The appellant, Ronald Eugene Hainey, was convicted of Concealing Stolen Property After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CRF-82-3400. Appellant was sentenced to thirty (30) years imprisonment. We affirm.

On June 11, 1982, an antique shop in Edmond was burglarized and merchandise totaling Six Thousand ($6,000) Dollars was stolen. Twelve days later, the operator of another antique shop, located in a shopping mall in Oklahoma City, purchased several of the missing items from a man calling himself Tommy Crawford. The appellant was later identified as the seller. When it was discovered that the items had been stolen, the police asked the shop operator to arrange for the purchase of additional goods. The appellant had given his correct address and telephone number when he made the sale. The purchase was arranged, and the appellant returned to the shop with a pair of antique scales. The scales were not a part of the stolen merchandise. The police had intended to make an arrest when the sale was completed, but did not because of the presence of several unexpected customers in the shop. In order to insure the safety of the customers, they allowed the appellant to exit into the mall area. The officers testified that although they were dressed in plain clothes, they believed the appellant spotted them when he left the shop and attempted to evade them by walking rapidly through the mall. The officers actually did lose sight of the appellant and finally arrested him when he returned to his vehicle. The arrest was witnessed by the appellant's wife, who had been waiting for him in the car. After he was arrested, the appellant spontaneously told an officer that the scales were not stolen.

At trial, the appellant's wife testified that the appellant found the stolen items in a pillowcase at a dump located southeast of Edmond. She stated that they frequently went to the dump to look for firewood and abandoned property. A friend of the appellant's wife testified that she had been with the appellant and his wife when the property was located. The friend and another witness also testified that the appellant had subsequently asked them to check the newspapers for reports or advertisements of stolen antiques. Finally, an attorney testified that he had reluctantly accompanied the appellant and his wife back to the dump in the latter part of July to look for more of the stolen merchandise. He stated that after about an hour of searching, the appellant found a second pillowcase full of antiques which had been stolen in the burglary.

I.

In his first assignment of error, appellant contends the trial court committed fundamental error by failing to deliver an instruction concerning his theory of defense. Appellant claimed that he had found the antiques at the dump, had no reason to believe that they were stolen, and therefore, had no intent to withhold them from their true owner.

We first note that appellant neither objected to the trial court's instructions nor requested any instructions of his own. In such circumstances, this Court has consistently held that a conviction will not be reversed unless the record demonstrates that the failure to instruct has deprived the defendant of a substantial right. Wolf v. State, 375 P.2d 283, 287 (Okl.Cr.1962). See also 20 O.S.1981, § 3000.1.

In this case, the appellant was given the opportunity to present evidence regarding his defense; he was not restricted in his argument to the jury; and all of the trial court's instructions correctly stated the law. In addition, the instructions specifically informed the jury that the State had the burden to prove beyond a reasonable doubt that the appellant knew or reasonably should have known that the property was stolen and that he intended to permanently deprive the owner of possession. Since the jury was fully apprised of the appellant's claim, and since the trial court's instructions contained the substance of the appellant's defense, we find that the failure to issue a special instruction sua sponte did not deprive the appellant of a fundamental right.

II.

A.

In his second assignment of error, appellant first contends that the trial court committed reversible error by issuing an instruction on flight. Appellant argues that there was insufficient evidence to justify an instruction, and that his alleged flight from the officers at the shopping mall was too remote to be connected to the earlier sale of the stolen antiques.

The record reveals, however, that two experienced police officers were of the opinion that the appellant was attempting to elude them, and in fact, did elude them temporarily. The appellant's conduct in the mall could be interpreted as an attempt to avoid arrest. Accordingly, there was sufficient evidence to submit the issue to the jury. Farrar v. State, 505 P.2d 1355 (Okl.Cr.1973); Wills v. State, 636 P.2d 372 (Okl.Cr.1981).

As to the question of the connection to the original sale, we note that the appellant was not charged with selling the antiques; he was charged with concealing stolen property. Concealing stolen property is a continuing offense. Therefore, we hold that when an accused who is charged with concealing stolen property sells some of the stolen goods, later returns to the place of sale to conduct another transaction, and then takes evasive action to avoid an arrest in connection with the concealment, an instruction on flight is not error.

B.

Appellant also contends that the trial court committed reversible error by failing to define the term "flight" in the jury instructions. See Wilson v. State, 96 Okl.Cr. 137, 250 P.2d 72 (1952). Appellant did not object to this failure of definition, however, and so all but fundamental error is waived. Nash v. State, 685 P.2d 972 (OklCr.1984). Appellant argues that the court must instruct that flight involves a consciousness of guilt. Here, the trial court instructed the jury that they must find that the flight was induced by an apprehension of arrest before it could be considered as evidence of guilt. While it would have been better for the court to have used the applicable uniform jury instruction, we cannot say that the failure to do so determined the jury's verdict. Ward v. State, 444 P.2d 255, 259 (Okl.Cr.1968), cert. denied, 393 U.S. 1040, 89 S.Ct. 665, 21 L.Ed.2d 588 (1969).

C.

Appellant further contends that the trial judge committed error when he failed to determine on the record that the probative value of the flight evidence outweighed any prejudicial effect. However, appellant failed to object to the admission of the evidence, and thus waived any alleged error. See 12 O.S.1981, § 2104.

D.

Finally, appellant argues that he was entitled to an instruction telling the jury that they must consider any explanation of a defense witness regarding the alleged flight. Wilson, supra. Again, appellant failed to request such an instruction. Furthermore, the witness, appellant's wife, did not see any of the evasive conduct inside the shopping mall, but merely observed the appellant walking toward the car outside the mall. Accordingly, the witness offered no explanation for the flight, and an instruction was not appropriate.

III.

In his third assignment of error, appellant contends that his right to a fair trial and effective assistance of counsel was prejudiced when the trial judge increased his bond during trial. We disagree.

The determination of bail lies within the sound discretion of the trial court, and this Court will not interfere absent manifest abuse. Bowman v. State, 585 P.2d 1373, 1377-78 (Okl.Cr.1978), cert denied 440 U.S. 920, 99 S.Ct. 1243, 59 L.Ed.2d 471 (1979). We have previously permitted an increase in bail in the proper circumstances. In Re Shetsky, 281 P.2d 769, 772 (Okl.Cr.1955).

In this case, the trial judge had heard the prosecutor's opening statement and part of the evidence connecting the appellant to the crime. In addition, the appellant was a repeat offender who was facing a minimum sentence of twenty years in prison. Under the circumstances, the trial judge believed that a $2,500 bond was insufficient to insure that the appellant would continue to appear for trial. Furthermore, the appellant suffered no apparent prejudice because all possible precautions were taken to avoid alerting the jury, and his attorney was guaranteed full access for consultation. Accordingly, this assignment of error is without merit.

IV.

In his fourth assignment of error, appellant contends that he was denied his right to a fair trial because the State introduced evidence of other crimes without giving him the notice required by this Court's decision in Burks v. State, 594 P.2d 771 (Okl.Cr.1979). The evidence consisted of testimony about the status of a number of other antiques which had been stolen in the same burglary as those which the appellant was charged with concealing. One of the antiques had been sold by the appellant to another antique dealer, and the balance was turned over to the police when they were found at the dump by the appellant and an attorney after he was arrested on the instant charge.

The testimony, however, did not indicate that the appellant had committed the burglary of the antique shop, or that he had concealed the antiques discovered after his arrest. The appellant was not accused of committing either crime. Accordingly, none of the testimony relating to those incidents constituted evidence connecting appellant to another crime.

On the other hand, the testimony relating to the sale of the other stolen item indicated that the...