Lloyd v. State, F-82-173
| Decision Date | 18 November 1982 |
| Docket Number | No. F-82-173,F-82-173 |
| Citation | 654 P.2d 645 |
| Parties | Leonard Leroy LLOYD, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Leonard Leroy Lloyd, appellant, was convicted of two counts of Assault and Battery With a Dangerous Weapon, After Former Convictions of Two Felonies, Case No. CRF-81-31, in the District Court of Love County. He was sentenced to twenty (20) years' imprisonment on each count, to be served consecutively, and he appeals. Judgment and sentence AFFIRMED.
Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.
Jan Eric Cartwright, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Oklahoma City, for appellee.
Appellant was convicted in the District Court of Love County, Case No. CRF-81-31 of two counts of Assault and Battery With a Dangerous Weapon, After Former Conviction of Two Felonies, and was sentenced to twenty (20) years' imprisonment on each count to be served consecutively.
Appellant, in his first assignment of error, asserts that the trial court committed fundamental error in failing to sue sponte instruct the jury that voluntary intoxication could affect the formation of the intent necessary to commit the crimes charged. Examination of the record reveals that appellant failed to object to the instructions given, failed to offer his own instructions on the issue, and failed to include this assignment of error in his motion for new trial. Therefore, appellant has waived consideration of this issue except on matters of fundamental error. Rodman v. State, 568 P.2d 1296 (Okl.Cr.1977); Turman v. State, 522 P.2d 247 (Okl.Cr.1974). A review of the facts presented at trial fails to disclose sufficient facts from which we can conclude that fundamental error occurred. While there was evidence that the appellant was intoxicated during the commission of the crime, there was clear evidence that appellant was cognizant of his actions at the time and intended their results. No substantial evidence was admitted which would clearly indicate that appellant had been unable to form the requisite intent. Failing to find fundamental error, we must rule this assignment of error to be without merit. Weimar v. State, 555 P.2d 1304 (Okl.Cr.1976).
Appellant in his second assignment of error asserts that the trial court committed fundamental error in failing to instruct on the lesser included offense of assault and battery. Appellant failed to offer such an instruction at trial but argues that the evidence was of such a nature as to require the trial court to sue sponte give the instruction. We do not agree. After reviewing the evidence presented at trial, we find no fundamental error. While assault and battery may be a lesser included offense of assault and battery with a dangerous weapon, uncontroverted evidence showed that the attack was made with a broken bottle. In light of this fact, an instruction on the lesser included offense was not a fundamental right. Furthermore, it is not necessary for the trial court to instruct on a lesser included...
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