Burks v. State

1977 OK CR 270, 568 P.2d 1311, 1977 Okla. Crim. App. LEXIS 610
Court of Criminal Appeals of Oklahoma·Decided September 7, 1977·No. No. F-77-55·Published·Cited by 5 cases

Opinions

OPINION

BUSSEY, Presiding Judge:

Appellant, Samuel Rayfael Burks, hereinafter referred to as defendant, was charged by information in Case No. CRF-75-384, with the crime of Unauthorized Use of a Motor Vehicle, pursuant to 47 O.S.1971, § 4-102, in the District Court, Washington County, State of Oklahoma. After a bifurcated jury trial in which the jury found defendant guilty of Unauthorized Use of a Motor Vehicle, After Former Conviction of a Felony, punishment was set at nine (9) years in the custody of the Department of Corrections of the State of Oklahoma. On the 28th day of July, 1976, the trial court pronounced judgment and sentence in accordance with the verdict of the jury. From said judgment and sentence the defendant has perfected this timely appeal.

The facts in this case presented by the State in support of its case in chief are identical to the ones reported by this Court in Agee v. State, Okl.Cr., 562 P.2d 913 (1977), wherein the co-defendant was tried and convicted of Burglary in the Second Degree. Therefore, a very brief statement of the facts is necessary.

At the trial, the State produced testimony from law enforcement officers who testified that while searching in an area near Copan, Oklahoma in Washington County, for two men they discovered that a home belonging to a Mr. and Mrs. Jeter had been burglarized and that their 1972 Chevrolet Nova was missing. The fact of the missing automobile was transmitted by police radio to northern Oklahoma and southern Kansas.

A few hours later the stolen automobile was observed by local authorities in Coffey-ville, Kansas. A Kansas Deputy Sheriff followed the automobile to where the defendant parked the same, emerged, and walked to the bus station. The defendant was ultimately arrested at the bus station by yet another Kansas police officer.

[1313]*1313The Jeters were then summoned to the Coffeyville Kansas Police Department where they identified their automobile, items taken from their home, and stated that the house had been securely locked and that the extra set of keys were located in one of the bedrooms of the home.

The chain of custody of the items introduced into evidence was adequately established by various Oklahoma and Kansas police officers. The defendant in the instant case was identified by several witnesses as being an occupant of the stolen car in both Oklahoma and Kansas.

After this evidence, the State rested.

The defendant declined to make an opening statement or present any evidence, and rested.

For his first assignment of error the defendant urges that the trial court erred in admitting into evidence, testimony from which the jury could infer that the defendant had been involved in, or implicated with, other crimes or criminal acts in addition to the offense charged. More specifically, the defendant objects to the opening statement made by the prosecutor and to subsequent evidence which he urges and implies that defendant was not only involved in the instant crime but was also involved in a burglary and was the subject of a search.

While this Court will guard zealously the defendant’s right to be tried only for the crime charged, we do not find that the argument and evidence submitted in this case requires either reversal or modification.

A careful examination of the record reveals that there was evidence from which a reasonable jury could draw the inference that this defendant was involved in a burglary. However, it should be quickly noted that this evidence was admissible for the purpose of showing how the defendant could have obtained the keys to the automobile in question. The evidence concerning the method of obtaining the car keys was relevant and had probative value. In Johnson v. State, 70 Okl.Cr. 270, 106 P.2d 149 (1940) this Court stated:

“ ‘. . . Evidence is admissible, in the trial of a criminal cause, which tends directly to prove the guilt of the accused, although it may also show, or tend to show, the commission of a separate and distinct felony, and this is true although the admission of such testimony may arouse resentment in the minds of the jury and result in a greater punishment than would ordinarily be inflicted.’ ”
“It is well settled that evidence covering the commission of another offense is always admissible when two crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other.”

Going directly to the point of res gestae we stated in McGlockin v. State, Okl.Cr., 516 P.2d 1357 (1973), that:

“. . . The defendant argues that the reference to a ‘kidnapping’ implied that the defendant was guilty of other crimes. An examination of the record reflects that at the time the officers looked into the automobile they were logically and properly investigating a possible kidnapping and the statement was properly admitted as a part of the res gestae. . . ”

And finally in Songer v. State, Okl.Cr., 464 P.2d 763 (1969), this Court laid down a five way test for the admissibility of such evidence. In that case we stated:

“Although a trial court should guard against the admission of testimony relating to separate and distinct offenses for which the defendant is not presently on trial, it is the rule of this Court, as announced in Jones v. State, Okl.Cr., 321 P.2d 432 (1958):
“ ‘The evidence of other crimes in order to be admissible must come within one of the well recognized exceptions to the rule. That is, tends to establish (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; and, (5) the identity of a person charged with [1314]*1314the commission of the crime on trial.’ 321 P.2d 435.”

We think the evidence in the instant case clearly falls within at least three, if not four of the above exceptions. Clearly the evidence tended to show the motive and intent of the defendant, the absence of mistake or accident, and most certainly the identity of the defendant. And finally, it was obviously evidence tending to show a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one was necessary in order to establish the other.

For his second and final assignment of error the defendant urges that his constitutional guaranty against double jeopardy has been violated. The defendant urges that his conviction in the District Court, Washington County, for the offense of Burglary in the Second Degree, Case No. CRF-75-387, and his subsequent conviction in the instant case was a violation of his constitutional right of twice being placed in jeopardy for the same offense. In support of his argument the defendant cites numerous cases relating to the so-called “single objective” test and the “same evidence” test.

We find the cases and argument urged by the defendant in the instant case are distinguishable from those cited. In the cases cited by defendant the events relate one transaction or one incident; such as, the armed robbery of two or more victims simultaneously. In each of the cases cited by the defendant the “single objective” took place in a narrow time span, if not simultaneously.

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Burks v. State, 1977 OK CR 270, 568 P.2d 1311, 1977 Okla. Crim. App. LEXIS 610 (Okla. Ct. App. 1977).

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