State v. Cooper

• Decision Date: 13 December 2018
• Docket Number: Case No. S-2017-1150
• Citation: 434 P.3d 951
• Parties: STATE of Oklahoma, Appellant, v. Myratia COOPER, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

434 P.3d 951

STATE of Oklahoma, Appellant,
v.
Myratia COOPER, Appellee.

Case No. S-2017-1150

Court of Criminal Appeals of Oklahoma.

FILED December 13, 2018

OPINION

HUDSON, JUDGE:

434 P.3d 953

¶1 On June 23, 2017, Myratia Cooper (hereinafter "Appellee") was charged in the District Court of Pittsburg County, Case No. CF-2017-482, with one count of Larceny of Domestic Animal. Appellee was bound over at preliminary hearing on this count. Appellee thereafter filed a motion to dismiss alleging that 21 O.S.Supp.2016, § 1716(B), the statute upon which this charge was based, was unconstitutional because it was duplicative of parallel statutory provisions declaring dogs as personal property subject to the general prohibition against larceny of personal property. 21 O.S.2011, §§ 1717 -18. Appellee argued that Section 1716(B) was unconstitutional because "the crime for which the Defendant has been charged is vague and impossible for the ordinary person to understand the penalty [that] he or she may face or the level of proof that is required to convict."

¶2 The State filed a responsive pleading opposing the motion to dismiss and a hearing was held on the matter November 1, 2017. At the conclusion of this hearing, the Honorable Tim Mills, Associate District Judge, granted the motion to dismiss, finding Section 1716(B) unconstitutional. Judge Mills then ordered the case stricken from the upcoming jury trial docket, formally dismissed the case and exonerated Appellee's bond.

¶3 Appellant, the State of Oklahoma, now appeals.¹ We exercise jurisdiction pursuant to 22 O.S.2011, § 1053.1 which provides for an automatic appeal of judgments holding statutes unconstitutional in criminal cases. For the reasons discussed herein, we reverse the district court's ruling, reinstate Appellee's case and remand for trial. See State v. Johnson , 1992 OK CR 72, ¶¶ 3-5, 877 P.2d 1136, 1142-43 (opinion on rehearing).

BACKGROUND

¶4 The State's evidence at preliminary hearing showed that on June 21, 2017, Appellee stole a registered miniature Aussie female puppy from the back of a flatbed truck parked in front of the McAlester tag agency. Kassandra Scott, the dog's owner, had tied the dog to the back of the truck frame using a leash. The dog was in the shade and secured to the back of the truck, which had a horse trailer attached, when Scott went inside the tag agency to conduct her business.

¶5 When she returned, Scott discovered her dog was gone. Only the dog's unlatched

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leash remained. Scott estimated being inside the tag agency for only five or six minutes. Scott testified that she did not give anyone permission to take the animal and that the dog was not able to unlatch the leash on its own. The dog was valuable: Scott purchased the animal for $900.00 but an area breeder had recently offered $1,500.00 for the dog.

¶6 Video footage from the tag agency's surveillance camera showed a woman getting out of a truck, crawling onto the flatbed and taking Scott's dog. Jeremy Busby, a master patrolman with the McAlester Police Department, viewed the video surveillance and received information about the location of the suspect's truck. Officer Busby proceeded to that location and, a few minutes after arriving, observed Appellee exiting her residence with the dog in tow.

¶7 When Officer Busby pulled alongside Appellee on the street, she began rapidly (and loudly) telling him that the dog had been abused. Officer Busby, however, observed no signs of abuse and returned the dog to Scott. Appellee later contacted the McAlester Police Department and complained about the dog's alleged abuse. This occurred roughly twenty-four (24) hours after Appellee took the dog.

ANALYSIS

¶8 The district court dismissed the Larceny of Domestic Animal charge against Appellee based upon its view that Title 21 O.S.Supp.2016, § 1716(B), the statute supporting the charge, conflicted with 21 O.S.2011, §§ 1717 and 1718. This ruling was premised upon defense counsel's argument that this conflict rendered Section 1716(B) unconstitutionally vague. Defense counsel argued—and the district court agreed—that these statutes could not co-exist without causing confusion concerning which penalty Appellee may face or the crime which she must defend against, thus resulting in a constitutional violation.

¶9 A challenge to the constitutionality of a statute is a question of law we review de novo . Weeks v. State , 2015 OK CR 16, ¶ 16, 362 P.3d 650, 654. In the present case, the district court's ruling was premised on the view that Section 1716(B) and Sections 1717 - 1718 proscribe the same conduct. The district court's interpretation of these statutes was wrong as a matter of law. See State v. Gilchrist, 2017 OK CR 25, ¶ 14, 422 P.3d 182, 185 (matters of statutory interpretation are reviewed de novo ).

¶10 To summarize, Oklahoma law contemplates two separate and distinct ways to prosecute the theft of a dog, i.e., either as a general larceny crime under §§ 1701, 1717 and 1718 or as a larceny of domestic animal charge under § 1716(B). The district court erroneously proceeded in this case as though the larceny of domestic animal statute proscribes essentially the same conduct as the general larceny statutes. Beyond the obvious differences in punishment, cf. 21 O.S.Supp.2016, § 1705 (punishment for grand larceny); 21 O.S.2011, § 1706 (punishment for petit larceny); 21 O.S.Supp.2016, § 1716(B) (punishment for larceny of dog), the two statutory regimes have different origins, proscribe different conduct, have different elements and thus require different proof for conviction. This case presents an issue of statutory interpretation relating to these larceny crimes. When the differences in these larceny crimes are understood, there is no constitutional vagueness problem arising from Appellee's prosecution under Section 1716(B).

¶11 We have held:

Statutes are to be construed to determine the intent of the Legislature, reconciling provisions, rendering them consistent and giving intelligent effect to each. Statutes are to be construed according to the plain and ordinary meaning of their language. When interpreting statutory provisions, our paramount concern is to give effect to the Legislature's intention. We consider the plain and ordinary language of a statute, other statutes involving the same or similar subjects, and the natural or absurd consequences of any particular interpretation. We try to reconcile the language of general statutes with more specific statutory provisions, to give effect to each.

Moss v. Okla. Dept. of Corrections , 2016 OK CR 23, ¶ 18, 403 P.3d 379, 383 (internal citations and quotations omitted). Section 1716(B) makes it a crime to "steal any dog,

434 P.3d 955

sheep or goat[.]" This provision is part of a specialized larceny statute addressing the theft of domestic animals and implements of husbandry.² This crime originated in territorial days to punish professional thieves who stole cattle from large herds—particularly in the western counties—as well as other domestic animals "from the owners thereof with the intent to appropriate the same to their own use." Cox v. Terr. , 1909 OK CR 104, 2 Okl.Cr. 668, 675, 104 P. 378, 381. The general larceny statutes were viewed as inadequate to address this widespread problem and "[t]he legislature deemed this crime of stealing domestic animals a more serious offense than grand larceny." Hughes v. Terr. , 1899 OK 23, ¶ 7, 8 Okla. 28, 56 P. 708, 710. In 2002, the Legislature added dogs to the list of domestic animals subject to the protections of Section 1716. See 21 O.S.Supp.2002, § 1716.

¶12 Under the current version of the statute, the State is not required to prove the value of the property stolen in order to obtain a conviction. Additionally, "[t]he word ‘steal’ as used in Section 1716 includes all the elements of larceny as that offense existed at common law. " Lasater v. State , 1987 OK CR 46, ¶ 5, 734 P.2d 317, 318 (emphasis added). Thus, "stealing, as here defined, is the wrongful or fraudulent taking and removing of personal property, by trespass, with a felonious intent to deprive the owner thereof, and to convert the same to his, the taker's own use. " Sneed v. State , 1937 OK CR 52, 61 Okl.Cr. 96, 102, 65 P.2d 1245, 1247 (emphasis added). Accord Lasater , 1987 OK CR 46, ¶ 5, 734 P.2d at 318. We have explained that the "intent to steal" element for this crime "encompasses two concepts: intent to deprive the owner permanently; and intent to convert to the taker's own use. " Grissom v. State , 2011 OK CR 3, ¶ 53, 253 P.3d 969, 987-88 (emphasis added).³

¶13 Section 1716(B) stands in stark contrast to the general larceny statutes set forth in Title 21. Title 21 O.S.2011, § 1701 defines larceny as "the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof." We have interpreted Section 1701 to require a showing of intent to deprive the owner of the property permanently. See Grissom , 2011 OK CR 3, ¶ 49, 253 P.3d at 987 ; Dean v. State , 1988 OK CR 258, ¶ 5, 764 P.2d 1355, 1357 ; Carson v. State , 1925 OK CR 296, 30 Okl.Cr. 438, 439-40, 236 P. 627, 628 ; Dickson v. State , 1924 OK CR 316, 28 Okl.Cr. 378, 379-80, 231 P....