Jackson v. State

• Decision Date: 23 September 1991
• Docket Number: No. F-88-326,F-88-326
• Citation: 818 P.2d 910
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Joseph JACKSON, Appellant, v. STATE of Oklahoma, Appellee.

Page 910

818 P.2d 910

Joseph JACKSON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-326.

Court of Criminal Appeals of Oklahoma.

Sept. 23, 1991.

An Appeal from the District Court of Seminole County; Lee Stillwell, Associate District Judge.

Joseph Jackson, Appellant, was tried by jury and convicted of Third Degree Arson in violation of 21 O.S.1981, § 1403(A), in Case No. CRF-87-102 in the District Court of Seminole County. The jury recommended a punishment of eleven (11) years imprisonment and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. AFFIRMED.

Thomas Purcell, Asst. Appellate Public Defender, Norman, for appellant.

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

OPINION

LUMPKIN, Vice Presiding Judge:

Appellant Joseph A. Jackson was tried by jury and convicted in the District Court of Seminole County, Case No. CRF 87-102, for the offense of Third Degree Arson, After Former Conviction of a Felony in violation of 21 O.S.1981, § 1403, and sentenced to eleven (11) years imprisonment. From this Judgment and Sentence, Appellant now appeals.

In the early morning hours of May 6, 1987, Linda Kennerly noticed flames and smoke coming from the backyard of her Wewoka, Oklahoma residence. When Ms. Kennerly went to investigate, she observed Appellant's wife, Vivian Jackson, run from her yard to a van parked in the alley. Kennerly recognized the van as belonging to Appellant. As the van pulled away, Kennerly heard two people laughing and recognized a man's voice to be that of Appellant. Kennerly was also able to identify Appellant as the driver of the van as the vehicle turned out of the alley. Upon further investigation, Kennerly discovered that her poly-cart had been set on fire and pushed from the alley up against her house. A poly-cart is a plastic trash can on wheels.

In his first assignment of error, Appellant alleges that the evidence was insufficient to sustain his conviction. Specifically he contends that the State failed to prove the value of the burned property was not less than fifty dollars ($50.00) as required under 21 O.S.1981, § 1403(A). Appellant's argument is premised on principles developed in the area of larceny and the determination that an item's worth is its market value. See Gilbreath v. State, 555 P.2d 69 (Okl.Cr.1976); Harrington v. State, 55 Okl.Cr. 27, 28 P.2d 596 (1933).

The State responds that the larceny determination of the value of an item when stolen is not synonymous with the determination of the "worth" as defined in the arson statutes.

Appellant was charged under 21 O.S.1981, § 1403(A), for the offense of Third Degree Arson. The language of the statute includes, "the property ignited or burned be worth not less than fifty dollars ($50.00)."

While the term "worth", as used in the context of an arson case, has not been defined by this Court, OUJI-CR 505 lists as an element of Arson in the Third Degree, "any real or personal property valued at fifty dollars ($50.00) or more." Accordingly, the jury in Appellant's trial was given the OUJI-CR 505 instruction which included the term "valued".

Moreover, market value is the usual standard of valuation. "Fair market value" is defined as, "[t]he amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts." Black's Law Dictionary 597 (5th ed. 1979). Further, Black's Law Dictionary also defines "worth" as, "[t]he quality or value of a thing which gives it value." Id. at 1607.

In Gilbreath v. State, 555 P.2d 69 (Okl.Cr.1976), this Court addressed the larceny determination of the value of an item. The Court there held that the correct scale for evaluating an item's value is its fair market value. We find, accordingly, that "value", as determined in larceny cases, is synonymous with "worth" as included in the arson statute, 21 O.S.1981, § 1403(A).

The kind of evidence admissible as proof of value includes opinions of qualified experts as to value. Standard Oil Co. v. Southern Pacific Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890 (1925). In the present case, David Phillips, Public Works Director for the City of Wewoka, testified that the City provided the poly-carts to its residents for orderly garbage control. He stated that the City charged fifty-five dollars ($55.00) for the poly-carts, whether it was for a first time purchase or as a replacement. This testimony regarding the value of the poly-cart was uncontested.

When evaluating a claim that the evidence is insufficient, we must determine "whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)". New v. State, 760 P.2d 833, 835 (Okl.Cr.1988).

In the present case, we find that a jury could have found all of the essential elements of the offense beyond a reasonable doubt as the State met its burden of proving the value of the poly-cart was not less than fifty-dollars ($50.00). Therefore, this assignment of error is denied.

In his final assignment of error, Appellant contends that the trial court erred in failing to give his requested jury instruction on the lesser included offense of Malicious Mischief. Appellant argues that since the State failed to prove the value of the poly-cart, he was entitled to an instruction under 21 O.S.1981, § 1760, which includes setting a trash can on fire when the value is less than fifty dollars ($50.00). The State disagrees and argues that the poly-cart was proven to be worth not less than fifty dollars ($50.00), therefore Appellant was not entitled to an instruction on the lesser included offense.

Section 1760 provides that an individual who maliciously injures, defaces or destroys any real or personal property not his own, in cases other than those specified in the following sections, is guilty of the misdemeanor of malicious injury or destruction of property. The section does not place a monetary value or worth on the item injured or destroyed. Here Appellant waived cross-examination of David Phillips and did not contest the State's evidence of value. Therefore, his argument that he would be entitled to the instruction based solely on evidence that the value of the item injured was less than fifty dollars ($50.00) fails. Value in this case was not a disputed fact based on the evidence presented to the jury.

The language of Section 1760 also provides that it is applicable only to the extent that the charged conduct is not covered in any subsequent provisions. Since it is the general malicious-mischief statute, if another statute covers a specific type of property, prosecution for...