Williams v. State, No. F-87-700

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: PARKS; LANE; LANE
• Citation: 1991 OK CR 28,807 P.2d 271
• Decision Date: 01 March 1991
• Docket Number: No. F-87-700
• Parties: Kimberly Colette WILLIAMS, Appellant, v. The STATE of Oklahoma, Appellee.

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807 P.2d 271 Kimberly Colette WILLIAMS, Appellant,
v.
The STATE of Oklahoma, Appellee. No. F-87-700. Court of Criminal Appeals of Oklahoma. March 1, 1991.

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An Appeal from the District Court of Oklahoma County; Jack R. Parr, District Judge.

Kimberly Colette Williams, appellant, was convicted of First Degree Murder, First Degree Burglary, and First Degree Robbery, in the District Court of Oklahoma County, Case No. CRF-86-5410, sentenced respectively to life and two twenty (20) year terms of imprisonment, and appeals. The convictions for First Degree Murder and First Degree Robbery are AFFIRMED. The conviction for First Degree Burglary is REVERSED and REMANDED with instructions to DISMISS.

Jamie D. Pybas, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Kimberly Colette Williams, the sixteen-year-old appellant, was charged as an adult in October of 1986 for the crimes of First Degree Murder (21 O.S.Supp.1982, § 701.7), First Degree Burglary (21 O.S.1981, § 1431), and First Degree Robbery (21 O.S.1981, § 791), pursuant to 10 O.S.Supp.1985, § 1104.2. Appellant's motion to be certified as a juvenile was denied by the District Court of Oklahoma County on December 16, 1986. On March 16, 1987, this Court declined to assume jurisdiction to prohibit further proceedings. Appellant was subsequently tried by jury and convicted on all three counts in Oklahoma County District Court Case No. CRF-86-5410. In accordance with the jury's recommendation, appellant was sentenced respectively to life and two twenty (20) year terms of imprisonment. The sentences were ordered to be served concurrently. Appellant's appeal from the order declining to certify her as a juvenile was affirmed by this Court in K.C.W. v. State, 736 P.2d 525 (Okl.Cr.1987). The instant action arises from appellant's Judgments and Sentences upon conviction.

At approximately 7:00 a.m. on September 6, 1986, after spending the night with several friends, appellant, thirteen-year-old T.C., and Cynthia Morgan walked to a neighborhood park in Oklahoma City. Once there, T.C. discussed robbing an elderly man whose home abutted the park. After Morgan declined to participate in the robbery, appellant agreed to join T.C.

Appellant and T.C. gained entry into the home of George Curlee by breaking the back door window. The seventy-five year old Curlee was awakened when the two assailants began searching the premises for money. Thereupon, T.C. began hitting Curlee with a board which he had carried into the house. There was conflicting evidence as to whether the initial assault began in the front room of Curlee's home or in his bedroom. However, it is apparent

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that most of the beating occurred in the victim's bedroom, where at least part of the time he was held down by appellant while T.C. administered the blows. Unable to locate any money, appellant and T.C. grabbed a half empty bottle of whiskey and fled the scene. The board used to inflict Mr. Curlee's fatal injuries was left by T.C. in an adjoining yard under some debris.

Cynthia Morgan testified that she observed appellant and T.C. leave Curlee's house and stated that appellant was carrying a whiskey bottle and had blood on her hand. Morgan also testified that appellant confided that she had participated in the assault and robbery. Also introduced into evidence was a tape recorded interrogation of appellant, wherein she detailed her involvement in the robbery. At trial, appellant admitted kicking the victim, but denied holding Mr. Curlee while T.C. beat him.

The body of George Curlee was discovered on the evening of September 6 by two neighbors. An autopsy revealed that Curlee died as a result of multiple injuries to several different parts of his body. Included among his injuries were multiple wounds to his skull and brain, a broken left ankle, twelve (12) broken ribs, a fractured sternum, two (2) broken wrists, and various head and body lacerations and bruises. The medical examiner opined that a majority of the injuries were caused by a long, narrow, blunt instrument. Blood and hair samples taken from the board discovered in the neighboring yard were determined to be consistent with that of the victim. Furthermore, foreign matter taken from the victim's head wounds were determined to be paint chips consistent in color with the paint on the suspect board.

In her first assignment of error, appellant asserts that her convictions violate double jeopardy prohibitions. Appellant first claims that she should not have been convicted of both burglary and robbery, because both offenses arose out of the "same transaction." However, this Court has held that "burglary and other offenses committed within the structure burgled do not merge, and conviction of both does not violate double jeopardy protections." Brecheen v. State, 732 P.2d 889, 899 (Okl.Cr.1987), cert. denied 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244 (1988). See also Simmons v. State, 748 P.2d 996, 999 (Okl.Cr.1988); Ziegler v. State, 610 P.2d 251, 254 (Okl.Cr.1980). "The burglary is complete upon entry with intent to commit a crime. 21 O.S.1981, § 1431. The offenses committed after entry are separate and distinct." Brecheen, 732 P.2d at 899. Accordingly, we find that appellant's convictions for both burglary and robbery do not offend the Double Jeopardy Clause of either the state or federal constitutions.

Appellant's second argument in this assignment of error is premised upon the fact that the Information charged alternative murder theories; either that the murder was committed with malice aforethought or that it was committed during the commission of the burglary. Because the jury did not specify which alternative theory it relied upon in convicting appellant of murder, she maintains that this Court must conclude that she was convicted under the felony-murder theory and reverse her burglary conviction.

This Court was presented with a substantially identical argument in Munson v. State, 758 P.2d 324 (Okl.Cr.1988), cert. denied 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989). There, the defendant was charged with First Degree Murder under alternative theories; either that he committed the crime with malice aforethought or while in the commission of kidnapping or while in the commission of armed robbery. Because the jury's verdict did not specify under which theory appellant was convicted, this Court held that "the verdict must be interpreted as one of felony-murder in order that appellant receive the benefit of the rule that a defendant cannot be...