Rogers v. State, No. F-77-691

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Writing for the CourtBUSSEY
Citation583 P.2d 1104
Decision Date16 August 1978
Docket NumberNo. F-77-691
PartiesKenneth ROGERS, Appellant, v. The STATE of Oklahoma, Appellee.

Page 1104

583 P.2d 1104
Kenneth ROGERS, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-77-691.
Court of Criminal Appeals of Oklahoma.
Aug. 16, 1978.
Rehearing Denied Sept. 14, 1978.

Page 1105

An appeal from the District Court, Stephens County, Hegel Branch; Jr., Judge.

Kenneth Rogers, appellant, was charged and convicted for the offense of Burglary in the Second Degree, After Former Conviction of a Felony; was sentenced to thirteen (13) years' imprisonment, and he appeals. Judgment and sentence AFFIRMED.

James L. Kee, Duncan, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Jerry Earl Benson, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Kenneth Rogers, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Stephens County, Case No. CRF-76-278, for the offense of Burglary in the Second Degree, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1435. His punishment was fixed at a term of thirteen (13) years' imprisonment. From said judgment and sentence a timely appeal has been perfected to this Court.

At the trial William L. Carl testified that he was a pharmacist and part-owner of the Duncan Drug Store. In the early morning hours of October 17, 1976, he went to the store to open it for the police. The front and back doors were locked when he arrived. He entered the store and found that a vent from the ceiling of the storeroom had been open. A duct under the vent had been knocked down and boxes of merchandise were scattered on the floor.

Officer Allen Gunter testified that on October 17, 1976, he was dispatched to the Duncan Drug Store at approximately 1:08 a. m. He and Officer Shrope went to the back of the building leaving Sergeant Blades in the front. After ascertaining that the back door appeared intact they proceeded up the staircase to the roof. He observed a figure crouched near a partially opened skylight. He told the person to "freeze" and to lie down on the roof. The person whom he identified as Johnny Wayne Gordon was wearing gloves and had a walkie-talkie. He first observed the defendant standing by the skylight in the custody of Officer Shrope.

Officer David Shrope testified that he was with Officer Gunter on the morning in question. He went up on the roof and observed light shining through an opened vent hole. He looked into the hole and observed the defendant crawling up on to some shelves on to the duct work. Defendant handed him two laundry bags and said "here, take this." (Tr. 26). He advised the defendant to crawl out of the hole. Defendant was wearing a green army field jacket and two ski masks. He placed the defendant under arrest and transported him to the police station.

Duane Drake testified that he was employed as the assistant manager of the Duncan Drug Store. He closed the store on October 16, 1976, at 6:00 p. m. after locking the doors. The vent on the roof was covered with galvanized tin and had only been opened on one previous occasion.

Detective Billy W. Nicholson testified that he arrived at the Duncan Drug Store at approximately 1:30 a. m. He identified photographs he took of the premises and certain items of physical evidence. A ball joint tool and a nylon rope was found near the vent on the roof.

Page 1106

Officer Charles Blades testified that he watched the front of the Duncan Drug Store while the other officers went to the back. He subsequently joined them on the roof and observed that they had two persons in custody. Defendant was wearing a ski mask which covered his face. He entered the drug store and observed that the duct work had been knocked down and that there was an opening in the roof.

The parties stipulated that State's Exhibit No. 17 was a certified copy of a Judgment and Sentence which reflected that...

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8 practice notes
  • State v. Freitas, Nos. 6986
    • United States
    • Supreme Court of Hawai'i
    • November 9, 1979
    ...See HRS § 622-21; HRS § 806-64; H.R.P.P. Rule 27; H.R.C.P. Rule 44; Brown v. State, 570 S.W.2d 251 (Ark.1978); Rogers v. State, 583 P.2d 1104 (Okl.1978); State v. Kelley,20 Wash.App. 705, 582 P.2d 891 (1978); State v. Lee, 114 Ariz. 101, 559 P.2d 657 (1976). In the case of defendant Freitas......
  • Luper v. Black Dispatch Pub. Co., No. 58246
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • September 6, 1983
    ...from the evidence, a substantial controversy exists rendering summary judgment inappropriate. Johnston v. Corinthian Television Corp., 583 P.2d at 1104. Reasonable conclusions to be drawn from Luper's evidence tend to show that at least some of the defendants had serious doubts as to the tr......
  • Hammon v. State, No. F-97-910.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 28, 2000
    ...been cumulative at most. Hammon has not shown prejudice from the proper enforcement of the rule. Rogers v. State, 1978 OK CR 86, ¶ 14, 583 P.2d 1104, 1107; Marshall v. State, 1998 OK CR 30, ¶ 22, 963 P.2d 1, 8-9, cert. denied, 525 U.S. 1125, 119 S.Ct. 910, 142 L.Ed.2d 908 8. TESTIMONY OF DA......
  • Parks v. State, No. F-79-3
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 26, 1982
    ...but the court had no authority to ask the jury to consider the issue. Irvin v. State, 617 P.2d 588 (Okl.Cr.App.1980); Rogers v. State, 583 P.2d 1104 In a supplemental brief, the appellant alleges that his conviction for first degree murder cannot be sustained for the reasons that his tape r......
  • Request a trial to view additional results
8 cases
  • State v. Freitas, Nos. 6986
    • United States
    • Supreme Court of Hawai'i
    • November 9, 1979
    ...See HRS § 622-21; HRS § 806-64; H.R.P.P. Rule 27; H.R.C.P. Rule 44; Brown v. State, 570 S.W.2d 251 (Ark.1978); Rogers v. State, 583 P.2d 1104 (Okl.1978); State v. Kelley,20 Wash.App. 705, 582 P.2d 891 (1978); State v. Lee, 114 Ariz. 101, 559 P.2d 657 (1976). In the case of defendant Freitas......
  • Luper v. Black Dispatch Pub. Co., No. 58246
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • September 6, 1983
    ...from the evidence, a substantial controversy exists rendering summary judgment inappropriate. Johnston v. Corinthian Television Corp., 583 P.2d at 1104. Reasonable conclusions to be drawn from Luper's evidence tend to show that at least some of the defendants had serious doubts as to the tr......
  • Hammon v. State, No. F-97-910.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 28, 2000
    ...been cumulative at most. Hammon has not shown prejudice from the proper enforcement of the rule. Rogers v. State, 1978 OK CR 86, ¶ 14, 583 P.2d 1104, 1107; Marshall v. State, 1998 OK CR 30, ¶ 22, 963 P.2d 1, 8-9, cert. denied, 525 U.S. 1125, 119 S.Ct. 910, 142 L.Ed.2d 908 8. TESTIMONY OF DA......
  • Parks v. State, No. F-79-3
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 26, 1982
    ...but the court had no authority to ask the jury to consider the issue. Irvin v. State, 617 P.2d 588 (Okl.Cr.App.1980); Rogers v. State, 583 P.2d 1104 In a supplemental brief, the appellant alleges that his conviction for first degree murder cannot be sustained for the reasons that his tape r......
  • Request a trial to view additional results

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