Reed v. State, F-77-643

• Decision Date: 13 June 1978
• Docket Number: No. F-77-643,F-77-643
• Parties: William Lee REED, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 159

580 P.2d 159

William Lee REED, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-643.

Court of Criminal Appeals of Oklahoma.

June 13, 1978.

An appeal from the District Court of Craig County; William J. whistler, judge.

William Lee Reed, appellant, was charged and convicted for the offense of Burglary in the Second Degree, After Former Conviction of a Felony; was sentenced to ten (10) years' imprisonment and he appeals. Judgment and sentence is AFFIRMED.

George P. Pitcher, Thomas Jot Hartley, Legal Intern, Vinita, for appellant.

Larry Derryberry, Atty. Gen., Julia T. Brown, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

The appellant, William Lee Reed, hereinafter referred to as defendant, was charged, tried before a jury and convicted in the District Court, Craig County, Case No. CRF-76-318, of the crime of Burglary in the Second Degree After Former Conviction of a Felony. Punishment was assessed at a term of ten (10) years under the direction and control of the Department of Corrections of the State of Oklahoma. From a judgment and sentence in accordance with the jury verdict the defendant has perfected his appeal after being granted permission to appeal out of time.

Briefly stated, the evidence adduced at trial is as follows, to-wit: Mary Ironside testified that she was a resident of Vinita, Oklahoma, and that on August 11, 1976, around 3:00 p. m. she noticed the defendant walking across the street from her house and then cutting across a neighbor's yard and going back toward the alley. Shortly thereafter the witness went across the street to visit her sister who said that she had seen someone enter Ms. Ironside's house through the back door. Ms. Ironside then returned home accompanied by her niece.

She further testified that her dog ran into the house and went into her bedroom and clothes closet and then out to the front porch where he began barking at the defendant, who was standing on the screened-in porch. When confronted he asked the witness if she had any yard work. After being told to leave, the defendant unlocked the screen door and left. The witness stated that she had not given the defendant permission to be in her home; that the back door had been closed but unlocked; that she always kept the door on the screen porch locked from the inside and that money which she kept in a Mason jar in her kitchen was missing.

Lottie Altebaumer then testified that she lived across the street from her sister Mary Ironside and that on the afternoon of the date in question she saw a boy come down the alley, open her sister's back door and enter the house. Shortly thereafter her sister came over and the witness asked her about the boy. Ms. Ironside then returned home accompanied by her niece.

Anita Altebaumer related that she accompanied Mary Ironside back to her house, went in the back door and was the first to find the defendant standing on the front porch. The defendant asked Ms. Ironside if she needed any yard work done and left. The witness further stated that the defendant had a writing or a tattoo on his arm.

Officer Raymond Clarkson of the Vinita Police Department testified that at about 2:30 p. m. on the date in question he saw the defendant walking near the Ironside residence. The State then rested.

The defendant, testifying in his own behalf, stated that on August 11, 1976, he was living with his sister in Tulsa, and that he went to his father's house between Drumright and Mannford to get some clothes. He denied being in Vinita on the 11th day of August and further denied being in Ms. Ironside's residence. On cross-examination the defendant admitted having tatoos on both arms and related that he had previously been convicted of burglary in the second degree in Nowata County in 1975.

The defendant's father, William D. Reed, then testified that in August his son had been living with him but had gone to Tulsa to live with his sister in hopes of finding work. He further testified that the defendant returned to pick up some clothes but that he could not testify for certain that it was on the 11th of August. The defendant's sister and brother-in-law each testified that they lived in Tulsa and that on August 10, 1976, the defendant stayed all night in their home in Tulsa and remained there all day on the 11th. The defense then rested.

On rebuttal the State called Bobby Floyd of the Vinita Police Department who testified that on the afternoon in question he was with Raymond Clarkson and observed the defendant walking down an alley toward Mary Ironside's home.

The defendant's first assignment of error contends that the evidence presented at the trial was insufficient as a matter of law to sustain the verdict rendered. However, the defendant submits no authority in support of his contention. As stated in Fryar v. State, Okl.Cr., 385 P.2d 818 (1963), it is necessary for counsel for the defendant not only to assert error but also to support his contentions by both arguments and citations of authority. When this is not done, and it is apparent that the defendant has been deprived of no fundamental right, this Court will not search the books for authority to support the mere assertion of error. See also Sandefur v. State, Okl.Cr., 461 P.2d 954 (1969).

It should also be noted that a thorough reading of the transcript in its entirety reveals that there was competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty as charged. This court will not interfere with the verdict since it is the exclusive province of the jury to weigh the evidence and determine the facts. Turner v. State, Okl.Cr., 479 P.2d 631 (1971).

The defendant next asserts that the trial court committed reversible error in presenting jury instructions which referred to a former conviction and in admitting into evidence State's Exhibit No. 1, a certified copy of the judgment and sentence entered upon the defendant's prior conviction of second degree burglary in Nowata County on April 28, 1975. In support of his contention the defendant argues that such a procedure was in violation of the provisions of 22 O.S.1971, § 860, which reads as follows, to-wit:

" § 860. Second or subsequent offenses Trial procedure. In all cases in which the defendant is prosecuted for a second or subsequent offense, except in those cases in which former conviction is an element of the offense, the procedure shall be as follows:

"(a) The trial shall proceed initially as though the offense charged was the first offense; when the indictment or information is read all reference to prior offenses shall be omitted; during the trial of the case no reference shall be made nor evidence received of prior offenses except as permitted by the rules of evidence; the judge shall instruct the jury only on the offense charged; the jury shall be further instructed to determine only the guilt or innocence on the offense charged, and that punishment at this time shall not be determined by the jury.

"(b) If the verdict be guilty of the offense charged, that portion of the indictment or information relating to prior offenses shall be read to the jury and evidence of prior offenses shall be received. The court shall then instruct the jury on the law relating to second and subsequent offenses, and the jury shall then retire to determine (1) the fact of former conviction, and (2) the punishment, as in other cases."

The record before us reflects that on cross-examination the defendant admitted that he had previously been convicted on the 28th day of April, 1975, in Nowata County for burglary in the...