New v. State

1988 OK CR 165, 760 P.2d 833, 1988 Okla. Crim. App. LEXIS 173, 1988 WL 88098
CourtCourt of Criminal Appeals of Oklahoma
DecidedAugust 22, 1988
DocketF-86-712
StatusPublished
Cited by12 cases

This text of 1988 OK CR 165 (New v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New v. State, 1988 OK CR 165, 760 P.2d 833, 1988 Okla. Crim. App. LEXIS 173, 1988 WL 88098 (Okla. Ct. App. 1988).

Opinion

OPINION

PARKS, Judge:

Charles Ray New, appellant, was tried by jury and convicted of Robbery with Firearms (21 O.S.Supp.1982, § 801), After Former Conviction of Two or More Felonies (21 O.S.Supp. 1985, § 51(B)), in Case No. CRF-85-6008, in the District Court of Oklahoma County, the Honorable Raymond Nai-feh, District Judge, presiding. The jury set punishment at imprisonment for one-hundred (100) years. Judgment and sentence was imposed in accordance with the jury’s verdict. We affirm.

At 11:00 p.m. on November 23, 1985, appellant entered the La Quinta Motor Inn in Del City, Oklahoma, pulled a pistol and robbed the night clerk and the night auditor of $225. After appellant fled, the clerk found a pink refund slip bearing appellant’s name from a Venture store on the lobby floor. Based upon the cash refund slip and the description of the robber given by the two victims, the police prepared a photographic lineup. Both victims picked appellant’s photograph from the lineup.

The following day, the Village police stopped a car for a separate offense. Appellant sat in the front passenger seat. The Village police arrested appellant and, in an inventory search of the vehicle after it was impounded, found a pistol in the rear floorboard behind the driver’s seat. The State introduced the pistol at trial, and both victims identified it as the same size, shape and color as the weapon used by appellant to rob them. Both victims made an in-court identification of appellant as the robber.

Appellant called three witnesses, two of whom testified as to appellant’s physical appearance. The third witness, appellant’s son, testified appellant was with him at home at the time, of the robbery.

For his first assignment of error, appellant asserts the trial court erred by admitting into evidence the photographic lineup and the receipt found on the lobby floor.

The photographic lineup introduced into evidence consisted of a sealed manila folder in which six holes had been cut. Photographs of black men are visible through the holes in the folder. None of the photographs appear, on their face, to be mug shots. Therefore, our recent decision establishing a balancing test for admissibility of mug shots into evidence to establish identity does not apply. See Ingram v. State, 755 P.2d 120 (Okla.Crim.App.1988).

Appellant argues the probative value of the photographs is substantially outweighed by the danger of unfair prejudice so as to require exclusion of the evidence under 12 O.S.1981, § 2403. Appellant failed to make this argument at trial, where he urged that the State failed to lay a proper foundation for admission of the photographs. Appellant has, therefore, waived on appeal his argument under Section 2403. See Fitchen v. State, 738 P.2d 177, 180 (Okla.Crim.App.1987). The admission of demonstrative evidence is within the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse of discretion. Owens v. State, 747 P.2d 959, 960-61 (Okla.Crim. App.1987). We find no abuse of discretion.

Appellant next argues the trial court erred in admitting the Venture refund receipt found on the lobby floor shortly after the robbery. He claims it was not properly authenticated, and that it was hearsay. At trial, defense counsel objected on the ground that the State failed to lay a proper foundation. Although we find the objection sufficiently specific to preserve the authentication issue for appellate review under 12 O.S.1981, § 2104(A)(1), in the absence of plain error under 12 O.S.1981, § 2104(D), we will not address a hearsay objection raised for the first time on appeal. See Patterson v. State, 735 P.2d 338, 341 (Okla.Crim.App.1987). Plain error is not present here, because the receipt was admitted as physical evidence linking appellant to the robbery and not to prove the truth of the matter asserted in the doc *835 ument, i.e., that appellant received a cash refund from Venture. See 12 O.S.1981, § 2801(3); Lee v. State, 700 P.2d 1017, 1020 (Okla.Crim.App.1985).

The requirement of authentication is initially a preliminary question for the trial judge as a matter of conditional relevance under 12 O.S.1981, § 2105(B), and “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims it to be.” 12 O.S.1981, § 2901(A). See 1 L. Whinery, Guide to the Oklahoma Evidence Code 318-19 (1985). “[T]he purported signature or recital of authorship on the face of a writing will not be accepted as sufficient preliminary proof of authenticity to secure the admission of the writing into evidence.” McCormick on Evidence 686 (E. Cleary 3d ed. 1984) (emphasis in original) (footnote omitted). Thus, unless a writing is self-authenticating under 12 O.S.1981, § 2902, the proponent must provide some proof of its genuineness other than the writing itself before it is admissible. See United States v. Sutton, 426 F.2d 1202, 1207 (D.C.Cir.1969); 7 J. Wigmore, Evidence 710, 746 (Chadboum rev.1978). “Authorship of writings may be shown by circumstantial evidence, among the components of which the contents of the writing may play a significant role. Circumstances beyond the four comers of a document may point with sufficient certitude to the person whose pen created it.” Sutton, at 1207 (footnotes omitted). “Only in special circumstances, where the contents reveal a knowledge or other trait peculiarly referable to a single person, can the contents alone suffice.” J. Wigmore, supra, at 746 (footnote omitted) (emphasis in original). Authentication may be established by direct or circumstantial evidence. Hightower v. State, 672 P.2d 671, 676 (Okla.Crim.App.1983). Authentication may be satisfied, for example, by the “[ajppearance, content, substance, internal patterns or other distinctive characteristics taken in conjunction with circumstances.” 12 O.S. 1981, § 2901(B)(4).

Here, the Venture refund receipt appears on its face as a preprinted “REFUND AUTHORIZATION” form with the name, address, and telephone number of “CHARLES NEW” printed in boxes, below which the purported signature of “CHARLES RAY NEW” appears. The receipt “NO. 6148220” is imprinted with cash register markings including “THANK YOU FOR SHOPPING VENTURE,” the date “NOV1785,” the “SUBTOTAL,” “TAX” and “REFUND” amounts, contains initials beside the line marked “AUTHORIZED BY” and has the word “CUSTOMER” in red ink at the bottom. Testimony at trial indicated that the lobby floor was clean at the time appellant entered the motel, that he was the only person who entered the lobby between the time the floor was cleaned and the robbery occurred, that the clerk discovered the receipt on the floor immediately after the robbery, and that a police officer arrived within ten (10) minutes after the robbery, at which time the officer picked up the Venture receipt from the lobby floor. Several witnesses identified the receipt, State Exhibit 1, as the same receipt picked up by the police officer from the lobby floor immediately following the robbery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

THE B&F CORPORATION v. CAVERS
2022 OK CIV APP 35 (Court of Civil Appeals of Oklahoma, 2022)
State v. Long
48 P.3d 595 (Hawaii Supreme Court, 2002)
Pennington v. State
1995 OK CR 79 (Court of Criminal Appeals of Oklahoma, 1995)
Black v. State
1994 OK CR 4 (Court of Criminal Appeals of Oklahoma, 1994)
Brewer v. City of Tulsa
1991 OK CR 59 (Court of Criminal Appeals of Oklahoma, 1991)
Shultz v. State
1991 OK CR 57 (Court of Criminal Appeals of Oklahoma, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
1988 OK CR 165, 760 P.2d 833, 1988 Okla. Crim. App. LEXIS 173, 1988 WL 88098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-v-state-oklacrimapp-1988.