Shepard v. State

1988 OK CR 97, 756 P.2d 597, 1988 Okla. Crim. App. LEXIS 110, 1988 WL 51852
CourtCourt of Criminal Appeals of Oklahoma
DecidedMay 12, 1988
DocketF-85-116
StatusPublished
Cited by37 cases

This text of 1988 OK CR 97 (Shepard 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
Shepard v. State, 1988 OK CR 97, 756 P.2d 597, 1988 Okla. Crim. App. LEXIS 110, 1988 WL 51852 (Okla. Ct. App. 1988).

Opinions

OPINION

BUSSEY, Judge:

The appellant, Booker T. Shepard, was convicted in the District Court of Okmul-gee County, Case No. CRF-84-24, of the crime of Larceny of Domestic Animals (cattle) After Former Conviction of Two or More Felonies. He was sentenced to fifty (50) years imprisonment and brings this appeal.

The facts disclosed by the record reveal that on February 7, 1984, M.C. Montgomery, a farmer, went to his pasture where he kept cattle. He found the lock on the gate broken, tire tracks leading to the loading chute, broken boards in the chute, and five of his cows missing. He contacted the Okmulgee County Sheriff’s Department. By the time a deputy arrived to investigate, two of his cows were found at the Tulsa Stockyards. They had been checked in by appellant.

The following day, a warrant was issued in Okmulgee County for the appellant’s arrest. At appellant’s residence in Tulsa, blood was observed on the ground leading from a trailer to appellant’s back door. Tulsa County Deputy Moody served the arrest warrant on appellant at the front door and went inside because other voices had been heard inside the house. Prior to entering, he observed a cow’s head in the sink in plain view. Through an open door from the kitchen, four quarters of beef could be seen hanging from rafters in the garage. Receipts for cattle from the Tulsa stockyards were laying on a table in the kitchen. Appellant was taken to the Tulsa County jail, and transported to Okmulgee County on the following day.

Appellant was found guilty of Larceny of Domestic Animals (cattle) by a jury. He stipulated to three prior felony convictions. The jury could not agree on the punishment, and sentence was subsequently rendered by the court. After denial of motion for new trial, this appeal was brought.

As his first proposition, appellant asserts that the evidence at trial was insufficient to support a conviction. When the evidence, as viewed in the light most favorable to the prosecution, is such that a reasonable jury could find all essential elements of the crime charged beyond a reasonable doubt, then this Court will not reverse on grounds of insufficiency of the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985).

One of the elements of the crime of Larceny of Domestic Animals is taking the animals. Appellant contends that although there was evidence of sale and possession in Tulsa County, there was no evidence that appellant had taken the cows from Okmulgee County. It is well established that a criminal case may be proved circumstantially, and reasonable inferences drawn therefrom have the same probative effect as direct testimony. Collins v. State, 561 P.2d 1373 (Okl.Cr.1977). Circumstantial evidence in this case included stolen cattle found at the stockyards and sold by appellant. Appellant made certain that all money representing proceeds of the sale was sent directly to him by naming himself as owner on the drive-in slips. Testimony was offered to show that the cattle had been taken with a truck and trailer, and that appellant used his truck and a trailer to deliver cattle to the stockyards. Appellant’s story about another truck and a man who claimed to be the owner of the cattle is inconsistent and wholly uncorroborated, and appellant’s testimony was impeached during cross-examination. A reasonable jury could find from this that appellant had taken the cattle, and the verdict will not be reversed for lack of sufficiency of the evidence. Jackson v. Virginia, supra; Spuehler supra.

Appellant next asserts that his conviction should be reversed on grounds of improper conduct by the prosecutor. We first note that no objection was raised contemporaneously with most of the alleged misconduct, and any error was therefore [600]*600waived absent a showing of fundamental error. Roberts v. State, 568 P.2d 336 (Okl.Cr.1977). Furthermore, in the one instance in which an objection was raised, it was properly sustained to exclude hearsay evidence. No request was made to have the jury admonished, and no motion for mistrial or other relief was made. This Court is unaware of authority requiring reversal where the trial judge properly sustains an objection by defendant, and we do not reverse on this assignment.

The appellant asserts that reversal is required because the form of the verdicts at the sentencing stage was ambiguous and did not give the jury an option to assess punishment without finding former convictions. The assignment is without merit. First, this Court has long held that in cases such as the one at bar, where the defendant has admitted his prior convictions, “there is no factual question for the jury of whether a defendant is guilty of the primary offense or the offense charged after former convictions. Jones v. State, 527 P.2d 169 (Okl.Cr.1974).” Hanson v. State, 716 P.2d 688, 690 (Okl.Cr.1986).

Second, appellant relies upon the bald assertion that the jury didn’t understand the form. He points to nothing in the record showing any confusion on the part of the jury, nor does he give specific, relevant authority on which reversal is required. This Court will not search for authority to support appellant’s assignments of error.

Finally, no objection was raised as to the form of the verdicts. Therefore, any error that may have existed has been waived. Williams v. State, 542 P.2d 554 (Okl.Cr.1975).

Appellant next asserts that fundamental error occurred because the trial judge was biased against appellant and allowed the bailiff to read the instructions to the jury. We first note that management of the trial is a matter for the sound discretion of the trial judge. Collums v. State, 695 P.2d 872 (Okl.Cr.1985). Appellant argues that bias was demonstrated when the trial judge criticized defense counsel’s actions. We note that these criticisms were made outside the presence of the jury. They did not show any bias concerning the outcome of the case, but merely reflect that the judge wanted to move along so that the jury would not wait all morning before the trial began. A judge’s honest efforts to expedite the trial are permissible so long as they do not operate to prejudice the defendant’s rights. Gamble v. State, 576 P.2d 1184 (Okl.Cr.1978).

Appellant also urges reversible misconduct when the judge interrupted defense counsel’s cross-examination of a State witness. In Lott v. State, 586 P.2d 70 (Okl.Cr.1978), we held that a trial judge may interrupt questioning to clarify testimony or halt improper examination. Here, the court did nothing more than clarify. Furthermore, there was no error as the questions in no way demonstrated the judge’s opinion on the appellant’s guilt, Banks v. State, 578 P.2d 370 (Okl.Cr.1978), and all error not of a fundamental nature was waived when no objection was raised. Lott, supra.

Reading of the instructions by the bailiff also does not amount to reversible error where it was a matter within the trial judge’s discretion in the management of the trial, Collums, supra. The judge was present to answer and rule on any matter of law that might arise, and defense not only failed to object, but specifically assented to that manner of giving instructions. This assignment of error must fail.

Next, appellant asserts that certain evidence should have been suppressed at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
1988 OK CR 97, 756 P.2d 597, 1988 Okla. Crim. App. LEXIS 110, 1988 WL 51852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepard-v-state-oklacrimapp-1988.