Kern v. State

1974 OK CR 95, 522 P.2d 644
Court of Criminal Appeals of Oklahoma·Decided May 13, 1974·No. F-74-9·Published·Cited by 13 cases

Opinions

OPINION

BLISS, Presiding Judge:

The appellant, David Lynn Kern, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County, Oklahoma, for the crime of Burglary in the Second Degree. Punishment was assessed at two (2) years in the state penitentiary. At the time of the commission of the act complained of, the defendant was a juvenile, being 17 years of age, and was certified for criminal prosecution as an adult by the Juvenile Division of the District Court of Oklahoma County. From said judgment and sentence upon trial the defendant has perfected a timely appeal.

The evidence adduced at trial is essentially as follows: Mr. and Mrs. Joseph Falgout left their home in Oklahoma City on June 23, 1972, to go on a two week vacation. When they left, their home was locked and they had given no one other than their married daughter permission to enter while they were away. They returned on the evening of the 7th of July to find that their home had been broken into, entry having been gained through a rear bedroom window. The home had been ransacked in an apparent effort to find valuables. In the family room a shotgun had been discharged into a bookcase.

Mrs. Falgout testified that two rifles, coins from a family collection and other items were missing. A few days later a police officer brought some coins by for the Falgouts to inspect. After the coins had been identified as theirs, they were left with the Falgouts for approximately eleven days. When the coins were returned to the police, they were each marked for identification purposes. Mrs. Falgout further testified that she knew the defendant as he had lived next door for almost four years prior to the house becoming vacant sometime in February of 1972. He never had permission to enter her home for any reason. John Falgout then took the stand and corroborated his wife’s testimony.

Patricia Ann Scheer, the Falgouts’ married daughter, then testified that she checked her parents’ home on several occasions during their absence and found it to be in good order, her last visit being on the 1st day of July. She further testified [647]*647that she did not give the defendant permission to enter the home.

Officer Steven Young of the Oklahoma City Police Department then testified that he went to the Falgout home on the 7th of July in response to a burglary report, and that it was his opinion that the home had been entered through a bedroom window.

Officer David Holmes then testified that at approximately 1:00 a.m. on the morning of July 3rd he had occasion to arrest the defendant and one Patrick Paul. During the booking process it was noted that the defendant had in his possession an unusual number of coins.

Officer Jerry Koester testified that he took part in the booking process and noticed that the defendant had in his possession a large number of coins that appeared to be rare or from a collection. The coins were itemized and held subject to checking burglary reports should they be stolen. After the officer was advised of the Fal-gout burglary, he took the coins to the Fal-gout home where they identified the coins as being theirs. The coins were released to the Falgouts but were subsequently retrieved to be preserved as evidence. The officer then identified State’s Exhibit 3 as an envelope containing said coins.

Mrs. Falgout was then recalled and positively identified the coins as being those taken from her home, calling particular attention to a certain silver dollar which had a unique identifying mark on it. The coins were then admitted into evidence.

Officer Troy Withey then testified that on the Sth day of July he was taken to the Falgout home by one Bryce Baggett, Jr., who had committed several burglaries and was taking the officer around to different houses pointing out the ones that had been entered and burglarized. The officer observed that the Falgout home had a back window broken out, there were bullet holes in the wall and the house had been ransacked. The officer subsequently took a shotgun and a rifle from Baggett, and the weapons were identified by Mr. Falgout as being his.

The State then called Patrick Paul who testified that he was 16 years of age at the time of the burglary and had been a participant in same. He stated that on the 2nd day of July the defendant came by his house at approximately 1:00 p.m., and they subsequently picked up Bryce Baggett, Jr. The defendant suggested that they go to his stepfather’s home which was vacant. When they arrived, they entered the home without permission and the defendant then stated that the next door neighbors were out of town. The three agreed to “go hit” Falgouts’ home. They went to the Fal-gouts’ back yard, broke a back window and unlocked it. Paul entered the house through the window and let the others in through a side door. The three began looking for valuables, ransacking the home in the process. Baggett found a shotgun which he fired into a wall. Paul stated he never saw the defendant take anything although he was not with the defendant at all times. The three boys shortly left through a back door, Baggett and Paul taking a shotgun and a rifle with them. The three went in a roundabout way to Kern’s car and proceeded to take the guns to Bag-gett’s home. Paul knew of no other items taken from the home. The State then rested.

After demurring to the State’s evidence, the defendant called Becky Hyde who testified that she saw the defendant, Paul and Baggett together on the 2nd of July and that Kern was wearing a certain bathing suit which she identified in court. The bathing suit did not match the description testified to earlier by Paul. On cross-examination the witness stated that she could not “say for sure” whether she had made a statement to a police officer that the defendant had a lot more money on him than she was accustomed to seeing in his possession. The defendant then rested.

On rebuttal the State recalled David Holmes who testified that the bathing suit, defendant’s Exhibit A, identified in court by Becky Hyde was not the bathing suit [648]*648worn by the defendant when he was arrested and the coins found.

The State then called Ruth Paul, mother of Patrick Paul, who testified that she saw the defendant on the 2nd day of July, 1972 and that he was wearing a bathing suit other than defendant’s Exhibit A and that it had a pocket on the front similar to that described by the officer.

The defendant’s first proposition in error urges essentially that the Juvenile Court abused its discretion in certifying the defendant to stand trial as an adult as the specific findings made by the Juvenile Court supporting said certification were not supported by the evidence. The Court’s findings of fact supporting certification are as follows, to-wit :

“1. Burglary is a relatively serious offense.
2. These crimes were committed in a wilful premeditated manner with a violence seldom seen in crimes against property.
3. Although they are crimes against property rather than persons, the violence in one case indicated an intent to psychologically harm someone.
4. That there is [sic] prosecutive merits to these complaints in that a committing magistrate would find from the evidence that the crimes were committed and there is probable cause to hold David Lynn Kern to answer for these crimes.
5.

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Kern v. State, 1974 OK CR 95, 522 P.2d 644 (Okla. Ct. App. 1974).

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Kern v. State
1974 OK CR 95 (Court of Criminal Appeals of Oklahoma, 1974)