Young v. State

• Decision Date: 23 June 1976
• Docket Number: No. F--76--41,F--76--41
• Parties: Timothy Carl YOUNG, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1133

551 P.2d 1133

Timothy Carl YOUNG, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--41.

Court of Criminal Appeals of Oklahoma.

June 23, 1976.

Richard A. Hoffman, Public Defender, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Doug Combs, Legal Intern, for appellee.

MEMORANDUM OPINION

BLISS, Judge:

Appellant, Timothy Carl Young, hereinafter referred to as defendant, was charged, tried and convicted in the Tulsa County District Court, Case No. CRF--75--811, 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 by jury at a term of imprisonment of one hundred (100) years. From this judgment and sentence defendant has perfected a timely appeal to this Court.

In the instant appeal, defendant does not challenge the sufficiency of the evidence upon which he was convicted and therefore only a brief summary of the facts will follow.

Jane Johnson testified that she was a receptionist for Dr. William Perry whose office was located at 1712 North Quaker in the Seminole Center, Tulsa County, Oklahoma. While so employed on the 11th day of April, 1975, she closed the office after Dr. Perry had left, at approximately 6:10 p.m., leaving the office secured with the lights out. She proceeded to a laundromat located in the same complex and remained there until approximately 6:45 p.m. She then walked back to her car, located near the doctor's office, at which time she noticed a car parked near her's which had not been there previously. Also, she noticed that the lights in the doctor's office had apparently been turned on after she had closed the office. Upon investigation of the office, she observed a basin on the floor which had not been there when she had left. She then turned off the lights, locked the door and proceeded to the Beauty Palace, across the street, to call the police and report a breakin. Some four to five minutes after leaving the office to call the police, she observed an individual, whom she identified as the defendant, coming out of a vacant building adjacent to the doctor's office. The defendant was wearing maroon trousers covered with 'chalky stuff.' She testified that she knew the individual to be the defendant for the reason that the defendant had been a patient of Dr. Perry's. She further testified she observed the defendant return to the light green Ford parked in the vicinity of her car and she made note of the license number of the vehicle, ZD 3178. She said that upon the defendant's return to his car, in which another person was sitting, the vehicle would not start and eventually the vehicle had to be pushed to be started. The police arrived some ten to fifteen minutes later and upon investigation of the doctor's office she observed a hole to have been kicked in the rear wall, and that the office was in disarray. She testified she could not recall the defendant's name the first time the investigating officer inquired, but she was able to recall his name after checking the records in the office. She also testified that she did not give the defendant permission to enter the doctor's office.

Dr. William Perry testified that his office had been located at 1712 North Quaker in Tulsa, Oklahoma, for approximately seven years. He stated that the office space next to his office had been vacant for approximately one year. He further stated that he had occasion to know the defendant as the result of having treated him for weight control and various injuries in the past. He further testified that he had not given the defendant permission to enter the office on the 11th day of April, 1975.

Robert L. Doss testified he was a police officer assigned to the patrol division and was so employed on the 11th day of April, 1975, at which time his working hours were from 2:45 p.m. to 11:00 p.m. On that day, in response to a call, he proceeded to 1712 North Quaker at approximately 6:45 p.m. where he met with the receptionist at Dr. Perry's office. He testified he investigated the office and observed that the office had apparently been broken into as it was in disarray and he also observed a hole in the wall. He said that he was given the name of the defendant, a description of the vehicle observed by Mrs. Johnson, including the license tag number.

Dan Higgins testified that he was employed as a pressman for Allied Printers and that he was also employed part-time by Glanz Security Patrol. He said that while on patrol during the early morning hours of April 12, 1975, at approximately 1:45 a.m., he observed a blue-green 1959 Ford occupied by three people in the vicinity of the Lakewood Manor Apartments. Upon investigation of the vehicle, he conversed with one of the individuals in the automobile, whom he identified to be the defendant, and that after receiving conflicting stories from the occupants he called the manager of the apartments and the police. Thereafter, the police arrived and arrested the defendant.

Godfrey Gardner testified that he was the police officer who arrested the defendant on the 12th day of April, 1975. He testified that at the time of the arrest the defendant was wearing maroon pants and was driving a late 1950s model green Ford with license tag number ZD--3178. The State then rested.

The first witness for the defense was Lillian Boyd who stated she was business manager for Reed Enterprises, which was owned by Dr. Guy Reed, and was custodian of the medical records. Having examined the files in Dr. Reed's office, she noted that the defendant had been receiving treatment from Dr. Reed for a weight problem and that the defendant had received treatment on the 11th day of April, 1975, for 'severe inflammation and edema of lacerations.' According to the office records, Dr. Reed dressed the injury and administered Mycitracin.

John Brammer testified that he was an emergency medical technician employed by the Tulsa County Sheriff's Office and was so employed during the month of April, 1975, and also testified that he was custodian of the medical records. On cross-examination he testified that at the time of defendant's arrest defendant's hands were infected, with an accumulation of fluid or 'edema.'

Larry C. Lacebe testified that he was a police officer for the City of Tulsa and was photo lab technician. He identified the defense exhibit as being a police mug shot taken of the defendant during the early morning hours of April 12, 1975.

Amanda Evelyn Young testified that she was the mother of the defendant and that the defendant had been living at home. She said that the defendant's hands had been cut and had been sutured approximately one week before his arrest. She further testified that the defendant's clothes worn at the time of his arrest were released to her from the Police Department and that said clothes were blue in color and the trousers did not have cuffs. The defense then rested.

In rebuttal for the State, Officer Lacebe was recalled to the witness stand and testified that at the time of defendant's arrest the trousers which were worn by the defendant had cuffs.

Don Ritz testified in rebuttal for the State that he was a Deputy Sheriff of Tulsa County and that he released the clothes worn by the defendant at the time of his arrest to Mrs. Young. He testified that said clothing was red. Also, he testified that maroon was a shade of red.

In further rebuttal by the State, Jane Johnson was recalled and stated that she did not recall whether or not the defendant had a beard or mustache at the time she observed the defendant on 11 April, 1975. She further testified that she did not recall whether or not the defendant had bandages on his hands at that time.

In surrebuttal, Don Ritz testified that he did not recall any white chalky material on the clothing worn by the defendant at the time of his arrest. The defense then rested.

The defendant's first assignment of error asserts that the trial court erred in sustaining the State's motion in limine, thereupon limiting the scope of the cross-examination of State's witnesses by counsel for the defendant. In support thereof, the defendant simply makes a broad allegation that cross-examination is not a proper subject for limitation by the trial court.

The State correctly notes that the defendant as the aggrieved party to the trial court's ruling has failed to present a complete record as the motion in limine and the details thereof are not contained in the appellate record. Further no particular offer of proof was made by defense counsel. Therefore this Court is precluded from determining whether or not the trial court abused its discretion. See, State v. Abbott, Okl.Cr., 545 P.2d 792 (1976).

Defendant's second assignment of error asserts that he was denied due process of law by the use of prior felony convictions for the purpose of enhancement. The defendant argues that the first felony conviction alleged by the State in the second page of the information was a conviction sustained by the defendant while he was a juvenile. Thus, the defendant argues that such conviction was sustained under a statute which was determined to be unconstitutional by the Tenth Circuit Court of Appeals in Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972); Radcliff v. Anderson, 509 F.2d 1093 (10th Cir. 1974). The defendant submits that this assignment of error stands primarily for the purpose of maintaining a record should the Supreme Court of the United States decide to direct its attention to the current conflict existing between the decisions of this Court and the Tenth Circuit of the United States Court of Appeals.

We also note that the defendant alleges that he has supplemented the record of this case with a certified copy of the information used as the basis for the first felony conviction, and also a copy of the defendant's birth certificate. The defendant simply alleges that he was under the age of...