Lancaster v. State, F--76--225

• Decision Date: 16 August 1976
• Docket Number: No. F--76--225,F--76--225
• Citation: 554 P.2d 32
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Michael Charles LANCASTER, Appellant, v. The STATE of Oklahoma.

Page 32

554 P.2d 32

Michael Charles LANCASTER, Appellant, v. The STATE of Oklahoma.

No. F--76--225.

Court of Criminal Appeals of Oklahoma.

Aug. 16, 1976.

William E. Boswell, Jr., Rambo, Taylor & Boswell, Norman, for appellant.

Larry Derryberry, Atty. Gen., W. Frank Muret, Asst. Atty. Gen., Joe Mark Elkouri, Legal Intern, for appellee.

OPINION

BLISS, Judge.

The Appellant, Michael Charles Lancaster, hereinafter referred to as the defendant, was charged, tried before a jury and convicted in the District Court of Cleveland County, Case No. CRF--75--278, of the crime of Robbery with Firearms. The jury after due deliberation found the defendant guilty as charged. The trial court, pursuant to defendant's request, set his punishment at not less than fifteen (15) and no more than forty-five (45) years imprisonment under the direction and control of the Department of Corrections of the State of Oklahoma. From said judgment and sentence the defendant has perfected his timely appeal.

Briefly stated, the evidence adduced at trial is as follows: The State called Emmett Barnes, who testified that on September 20, 1974, at approximately 7:15 A.M., the defendant knocked on the door of his trailer house near Norman. Barnes answered and the defendant put his foot in the door, kicked it open, pulled a gun and forced his way into the trailer. Barnes testified that upon seeing the weapon he was shocked, scared and in utter disbelief and that the defendant struck the pistol, which he described as having a 5 1/2 inch long barrel and looking like a .22, in his face and asked where his wife was, to which he replied 'asleep'. The defendant told him to go to the bedroom where they found Terri Barnes hiding. The defendant then asked for Barnes' car keys and money, both of which were located in Mrs. Barnes' purse in their automobile. Barnes stated the defendant then told them to lie face down on the bed but they refused fearing the defendant would kill them. The defendant once again requested money, to which Mrs. Barnes responded that she might have left the purse in the living room. Having searched the living room for the purse and not finding it, the defendant was advised that the keys and money must be in Mrs. Barnes' purse located in their car which was parked next to their trailer. The defendant then told them to turn and face the wall and they again refused. The defendant then became angry, shouting and waving his gun around, and pushed Mrs. Barnes against the wall. Barnes then testified that his wife, having been able to maneuver around the defendant, jumped on the defendant's back and he grabbed the defendant around the chest pushing him toward the wall. Mrs. Barnes then fell backward onto the floor and the defendant fired the pistol. Mrs. Barnes was shot in the eye. He further testified he ran to the bedroom and got a sheet and wrapped his wife's head while the defendant stood in the doorway watching. Mrs. Barnes asked if she was going to die and the defendant told her 'Lady, if you raise your head again, I'm going to kill you' and then drove off in their automobile.

Terri Barnes then testified, identifying the defendant in court as the man who entered her home and shot her on September 20, 1974. The remainder of her testimony was essentially the same as her husband's. She did state further that she saw the defendant driving their car while she was being transported to a hospital. The State then rested.

The defense presented no evidence and rested. After the jury returned a verdict of guilty the defendant requested that the trial court assess punishment. Punishment was assessed as set out above.

The defendant's first assignment of error urges that the trial court erred in refusing to give defendant's requested instruction concerning the unauthorized use of a motor vehicle for the reason that the testimony adduced at trial clearly shows that the defendant did not take anything of value from the possession or immediate presence of Mr. or Mrs. Barnes.

The relevant state, 21 O.S.1971, § 791, reads as follows:

'Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'

In Fields v. State, Okl.Cr., 364 P.2d 723, this Court held that in order for there to be a taking from the immediate presence of a victim it is not necessary that the victim see or hear the taking of the property. It is sufficient if it is shown that the property was so under the control of the victim that violence or putting in fear was the means used whereby the robber took the property. See also Braley v. State, 54 Okl.Cr., 219, 18 P.2d 281.

In the instant case the uncontroverted evidence reveals that the defendant forced his way into the home of the victims with a pistol, that because of the fear generated by the pistol in the hand of the defendant the victims were forced to tell the defendant where their money and car keys were, and that after acquiring that information the defendant took the money and the defendant's vehicle which was parked within the curtilage of the premises where the victims lived. There was no evidence presented by the State or the defense which tended in any way to prove that the information was not obtained through the use of force and fear on the part of the defendant. In Groom v. State, Okl.Cr., 419 P.2d 286, this Court held that...