Thompson v. State, F-84-563
| Decision Date | 05 January 1988 |
| Docket Number | No. F-84-563,F-84-563 |
| Parties | Daniel Paul THOMPSON, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Daniel Paul Thompson, appellant, was convicted of the offense of Robbery by Force in violation of 21 O.S.1981, § 791 in Case No. CRF-83-40; Robbery by Fear in violation of 21 O.S.1981, § 791 in Case No. CRF-83-39; Larceny of an Automobile in violation of 21 O.S.1981, § 1720 in Case No. CRF-83-41; and, Kidnapping in violation of 21 O.S.1981, § 741 in Case No. CRF-83-43 in the District Court of Adair County. The jury returned a verdict of guilty in all cases and set respective punishments at seventy-five (75) years' imprisonment, twenty (20) years' imprisonment, three (3) years' imprisonment, and seven (7) years' imprisonment, with all sentences to run concurrently. From this judgment and sentence, appellant appeals. AFFIRMED.
Thomas Purcell, Asst. Appellate Public Defender, Norman, for appellant.
Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Victoria K. Cochran, Legal Intern, Oklahoma City, for appellee.
Daniel Paul Thompson, appellant, was tried by jury for the crimes of Robbery by Force in violation of 21 O.S.1981, § 791 in Case No. CRF-83-40; Robbery by Fear in violation of 21 O.S.1981, § 791 in Case No. CRF-83-39; Larceny of an Automobile in violation of 21 O.S.1981, § 1720 in Case No. CRF-83-41; and Kidnapping in violation of 21 O.S.1981, § 741 in Case No. CRF-83-43. Appellant was represented by counsel in the Adair County District Court trial. The jury returned a verdict of guilty on all counts and set punishment at seventy-five (75) years' imprisonment for Robbery by Force; twenty (20) years' imprisonment for Robbery by Fear; three (3) years' imprisonment for Larceny of an Automobile; and seven (7) years' imprisonment for Kidnapping. The trial court sentenced appellant in accordance with the jury's verdict, however, he allowed the sentences to run concurrently. From this judgment and sentence, appellant appeals to this Court.
On the evening of June 22, 1983, a man later identified as appellant came to the rural home of Gladys Kidd and asked to use the telephone. Upon entering the home, he pointed a gun at Ms. Kidd. When she attempted to escape, the assailant hit her in the face with the gun. He then forced her to lie down and taped her wrists and ankles. Thereafter, the assailant searched through Ms. Kidd's belongings. Upon finding no money, he threatened to shoot her if she did not tell him where her money was hidden. After Ms. Kidd revealed the location of her billfold, the man took $200.00 from it.
Meanwhile, a neighbor had become suspicious of the stranger and called another neighbor. The two men decided to go to Ms. Kidd's home to see if she was in trouble. Vic Guthrie, the brother-in-law of one of the neighbors, accompanied the two men to check on Ms. Kidd.
After the three men knocked on the front door and called for Ms. Kidd, the assailant came to the door and forced one of them into the house at gun-point. Upon seeing the gun, the other two gentlemen attempted to escape. However, the gunman caught Mr. Guthrie and at gunpoint forced him into Mr. Guthrie's car which was parked in front of the house.
From there, Mr. Guthrie drove the gunman a few miles down the road. After threatening Mr. Guthrie several times, the gunman ordered him to stop the car. He then commanded Mr. Guthrie to hand over his wallet. After Mr. Guthrie placed the wallet on the car seat, the assailant ordered him to exit the vehicle. The gunman then drove the car away and abandoned it on a backroad. A police officer arrested appellant at a convenience store after being informed that a man matching the gunman's description was seen there. Several witnesses identified appellant as the gunman and also testified that they had seen appellant earlier that day slowly driving by Ms. Kidd's home.
Appellant first asserts that the convictions for Robbery by Fear and Larceny of an Automobile violate both the Oklahoma and Federal Constitutional prohibitions against double jeopardy. He argues that by taking Mr. Guthrie's car and billfold and driving away, he committed one act or one transaction which according to Heldenbrand v. Mills, 476 P.2d 375 (Okl.Cr.1970) cannot be used to support a series of criminal charges. However, we find Stohler v. State ex rel. Lamm, 696 P.2d 1038 (Okl.Cr.1985), to be dispositive of this issue. In Stohler, we followed Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932), and stated:
[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
The Supreme Court has further clarified this test by holding that "[i]f each [statutory provision] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Brown v. Ohio, 431 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). There is no doubt that the two offenses complained of require proof of additional facts. The robbery charge requires a showing that the wrongful taking of another's personal property was accomplished by means of fear. See, 21 O.S.1981, § 791. The larceny charge requires proof that the property stolen was an automobile and does not require proof of the means of accomplishing the taking. See, 21 O.S.1981, § 1720.
Furthermore, the jury could have based its guilty verdict in regards to the robbery charge wholly on the fact that the gunman forced Mr. Guthrie to give him the wallet while both men were sitting in the vehicle. Under this scenario, the robbery conviction had nothing to do with appellant forcing Mr. Guthrie out of the car and driving away in it. Therefore, the two convictions were the result of two separate offenses since each statutory provision required proof of an additional fact which the other did not. This assignment of error is without merit.
Appellant contends in his second proposition of error that improper comments made by counsel for the State in closing argument deprived appellant of a fair trial...
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