Owens v. State

• Decision Date: 08 January 2010
• Docket Number: No. F-2008-530.,F-2008-530.
• Citation: 229 P.3d 1261,2010 OK CR 1
• Parties: Jeffery Alfonzo OWENS, Appellant, v. The STATE of Oklahoma.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

229 P.3d 1261
2010 OK CR 1

Jeffery Alfonzo OWENS, Appellant,
v.
The STATE of Oklahoma.

No. F-2008-530.

Court of Criminal Appeals of Oklahoma.

January 8, 2010.

229 P.3d 1262

Julie Ann Ball, Assistant Public Defender, Tulsa, OK, attorney for defendant at trial.

229 P.3d 1263

Jake Cain, Assistant District Attorney, Tulsa, OK, attorney for the State at trial.

Stuart W. Southerland, Assistant Public Defender, Tulsa, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer Blakeney Welch, Assistant Attorney General, Oklahoma City, OK, attorneys for the State on appeal.

SUMMARY OPINION

CHAPEL, Judge.

¶ 1 Jeffery Alfonzo Owens was tried by jury and convicted, in Tulsa County District Court Case No. CF-2007-3564, for the crime of first degree robbery in violation of 21 O.S.2001, § 797. First degree robbery is subject to the 85% Rule pursuant to 21 O.S.Supp.2003, § 13.1. In accordance with the jury's recommendation, the Honorable Clancy C. Smith, District Judge, sentenced Owens to twenty seven (27) years imprisonment. Owens appeals from this conviction and sentence, raising six propositions for review.

I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JURY'S VERDICT, AND JURORS WERE NOT INSTRUCTED AS TO THE LESSER-INCLUDED OFFENSE OF SECOND DEGREE ROBBERY. THIS COURT MUST REVERSE APPELLANT'S CONVICTION FOR FIRST DEGREE ROBBERY.

II. IT WAS REVERSIBLE ERROR FOR THE DISTRICT COURT TO ADMIT EVIDENCE OF A PRIOR CAR THEFT COMMITTED BY APPELLANT TO DEMONSTRATE A COMMON SCHEME OR PLAN. THE EVIDENCE WAS NOT RELEVANT, IT WAS PREJUDICIAL, AND SERVED TO DENY APPELLANT THE RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

III. MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT SERVED TO DENY APPELLANT THE RIGHT TO A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

IV. IMPROPER REBUTTAL EVIDENCE WAS PRESENTED TO THE JURY, WHICH VIOLATED PROVISIONS OF OKLAHOMA LAW AS WELL AS THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

V. THE DENIAL OF APPELLANT'S REQUEST FOR AN INSTRUCTION DEFINING REASONABLE DOUBT DENIED HIM THE RIGHT TO DUE PROCESS AND A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

VI. THE COMBINED ERROR DURING APPELLANT'S TRIAL SERVED TO DENY HIM THE RIGHT TO A FAIR TRIAL GUARANTEED BY THE FOURTEENTH AMENDEMENT OF THE UNITED STATES CONSTITUTION.

¶ 2 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that relief is required in response to Propositions One, Two and Three. Owen's conviction will be reversed and this matter remanded for proceedings consistent with the decision herein.

¶ 3 On Saturday night, June 9, 2007, as Lewis Moses entered a liquor store to purchase his Pepsi and half-pint of vodka, he observed a "strange looking" man. Upon exiting the store, Moses was approached by the man and after a brief conversation, Moses agreed to give the man a ride. The man directed Moses through the city, and ultimately led him to 2816 North Boston Place, the last house on a dead end street, bordering a large field. There, rather than exiting the car, the man demanded the keys to Moses' car. Moses refused and the man hit Moses in the face two times. The man then exited the car, pulled Moses out, threw him onto the driveway, stole approximately ninety dollars in cash as well as the car keys, and drove off. Moses testified that he had to roll out of the way to avoid being hit by the car.¹

¶ 4 Moses picked himself up and walked down the street, seeking assistance. Delmar Willis, a resident in the neighborhood where

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Moses was assaulted, found Moses and helped him reconnect with family. Moses testified that after the assault he felt "terrible," but Moses did not seek medical attention until Monday. Pictures taken by his family immediately after the assault show bruising to his face, arms, legs and back. The doctor admitted Moses to the hospital for some tests, though it is unclear for what reason, or how long Moses remained at the hospital.²

¶ 5 On the night of the assault Delmar Willis told Moses' daughter, Dana Moses, that Jeffrey Owens may have been the perpetrator because he lived in the neighborhood and "he had a record of robbing people and stealing people's cars." Dana Moses passed the information on to the lead investigator in the case, Detective Bob Little. After Moses made a positive identification of Owens in a photo lineup, Owens was arrested at his Mother's home.

¶ 6 Four members of Owens' family attended court and testified that they were with Owens for various parts of the evening on June 9, 2007. Each witness stated that they recalled the evening because it was the night that Alma, Owens' niece, introduced her infant child Sebring. Owens' Mom made wienies and beans, and everyone came over and spent time in the house, enjoying the baby and the company of family. The prosecutor was able to expose weaknesses and inconsistencies in the stories of these non-professional witnesses.

¶ 7 Owens was charged with first degree robbery. The trial court only instructed the jury on first degree robbery by serious bodily injury.³ There was no request by defense counsel or the State for any modification or alternative instruction. On appeal, Owens argues both that there was insufficient evidence for the jury to convict him of robbery in the first degree by serious bodily injury, and also that the trial court erred by failing to instruct the jury on robbery in the second degree, by means of force or fear. Our standard for review of an insufficiency claim is whether, "when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt."⁴ When reviewing jury instructions, we will examine all of the evidence adduced at trial. "The trial court must instruct on any lesser included offense warranted by the evidence."⁵ Because Owens did not object to the jury instructions, we review the instructions for plain error.⁶

¶ 8 While serious bodily injury is not specifically defined by statute or jury instruction in the robbery context,⁷ this Court considers how the Legislature has defined serious bodily injury elsewhere in the code. The term "serious bodily injury" can currently be found in two statutes: 10A O.S.Supp. 2009, § 1-1-105 and 27A O.S.2001, § 2-6-202. Both statutes define "serious bodily injury" as:

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a. a substantial risk of death,

b. extreme physical pain,

c. protracted disfigurement,

d. a loss or impairment of the function of a body member, organ, or mental faculty,

e. an injury to an internal or external organ or the body,

f. a bone fracture,

g. sexual abuse or sexual exploitation,

h. chronic abuse including, but not limited to, physical, emotional, or sexual abuse, or sexual exploitation which is repeated or continuing,

i. torture that includes, but is not limited to, inflicting, participating in or assisting in inflicting intense physical or emotional pain upon a child repeatedly over a period of time for the purpose of coercing or terrorizing a child or for the purpose of satisfying the craven, cruel, or prurient desires of the perpetrator or another person, or

j. any other similar aggravated circumstance.

Our statutes dictate that "whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears."⁸ Additionally, we will consider how we have historically defined the term. This Court has discussed serious bodily injury in the context of Aggravated Assault: serious bodily injury is "grave and not trivial; such injury as gives rise to apprehension of danger to life, health or limb."⁹ Bruising, swelling, and even a few cracked ribs or stitches has been found insufficient for the felony count of assault with serious bodily injury.¹⁰

¶ 9 Whatever standard one employs, it cannot be said that the State established serious bodily injury. Here, Moses was punched twice in the face, pulled from his car and thrown to the pavement. Moses rolled down the pavement to avoid being hit by his car as Owens drove away, suffering abrasions to his back, arms, legs and face. He walked away from the incident, did not seek medical treatment that weekend, needed no stitches and suffered neither broken bones nor permanent injury. When asked how he felt after the robbery, Moses testified:

MOSES: Terrible.... If you got beat up, you'd feel terrible too.

STATE: Did you have some injuries, Mr. Moses?

MOSES: Yes, sir.

STATE: Do you recall what those injuries were?

MOSES: I had some facial injuries, some body injuries where he tried to run me over.

This Court has concluded that more serious injuries fail to establish serious bodily injury. The State has not met its burden in this case.

¶ 10 The crux of this error, however, is found in the failure of the trial court to supply the jury with the tools to render a lawful verdict. While there was insufficient evidence adduced at trial to support a verdict of robbery with serious bodily injury, there was ample evidence to convict Owens of robbery. It is for a jury to decide whether that robbery is by threat of serious bodily injury or by force or fear. Notably, the charging document lists the offense charged as robbery in the first degree and details the elements, by force or fear, of robbery in the second degree.¹¹ The trial court had the

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authority and obligation to provide these instructions to the jury.

¶ 11 This Court will not look backwards and infer a waiver of proper instructions, supported by the evidence, from a silent record.¹² The State's argument that Owens waived his right to request an instruction on second degree robbery because he...