State v. Anderson

1998 OK CR 67, 972 P.2d 32, 70 O.B.A.J. 789, 1998 Okla. Crim. App. LEXIS 75, 1998 WL 884926
CourtCourt of Criminal Appeals of Oklahoma
DecidedDecember 9, 1998
DocketS-97-1641
StatusPublished
Cited by34 cases

This text of 1998 OK CR 67 (State v. Anderson) 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
State v. Anderson, 1998 OK CR 67, 972 P.2d 32, 70 O.B.A.J. 789, 1998 Okla. Crim. App. LEXIS 75, 1998 WL 884926 (Okla. Ct. App. 1998).

Opinions

OPINION

LUMPKIN, Judge:

¶ 1 Appellee, Aubrey Ivan Anderson, was charged with Murder in the First Degree (Count I) (21 O.S.1991, § 701.7) and Shooting with Intent to Kill (Count II) (21 O.S.1991, § 652), in the District Court of Garfield County, Case No. CF-96-169. Prior to trial, Appellee filed a Motion to Quash the Information based in part, upon the State’s interpretation of 21 O.S.1991, § 1289.25. The State requested the trial court render judgment on the applicability of the statute. The Honorable Richard M. Perry, Associate District Judge, denied the motion to quash, ruling that Appellee, although only a visitor in the residence, qualified as an “occupant” under Section 1289.25. A jury trial was subsequently commenced. At the close of evidence, the jury was given Oklahoma Uniform Jury Instruction-Criminal, (OUJI-CR) (2nd) 8-15 setting forth the affirmative defense provided in Section 1289.25. The State objected to the instruction and reserved the issues pertaining to the application of Section 1289.25. The jury subsequently returned not guilty verdicts on all charges. Pursuant to 22 O.S.1991, § 1053(3) the State has reserved, as a question of law, the issue of whether the term “occupant” as used in Section 1289.25 can include people other than the home owner or continuous resident of the premises.

¶ 2 Initially, we note that a state appeal on a reserved question of law does not address any part of the trial or proceedings except the precise legal issue reserved. State v. Harp, 457 P.2d 800, 805 (Okl.Cr.1969).

If we should undertake to determine the applicability of the law to a given set of facts, we would constantly be engaged in a re-trial of every case involving an acquittal. This, in the Court’s opinion, was not the purpose of giving the State the right to appeal upon a Reserved Question of Law.

Id. Therefore, the only facts from Appellee’s trial that now concern us are that he was an invited guest in the home of Joe Alvey and Chris Wilson; that the victims, Joe Younger and Chris Harris, forcibly broke into Alvey and Wilson’s home, and that Appellee shot the victims.

¶ 3 Whether the term “occupant” as used in 21 O.S.1991, § 1289.25 includes people other than the home owner or continuous resident of the premises presents an issue of first impression for this Court. As we answer this question, we must keep in mind the fundamental rule of statutory construction — to ascertain and give effect to the intention of the Legislature as expressed in the statute. Thomas v. State, 404 P.2d 71, 73 (Okl.Cr.1965). To ascertain the intention of the Legislature in the enactment of a statute, the court may look to each part of the same, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation. Id. See also Lozoya v. State, 932 P.2d 22, 29 (Okl.Cr.1996). A statute should be given a construction according to the fair import of its words taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. Wallace v. State, 910 P.2d 1084, 1086 (Okl.Cr.1996). It is the text of the statute which gives notice to the citizen of the prohibited conduct subject to prosecution and the scope of conduct which is allowable to defend against prohibited conduct committed against a person. Therefore, the text of the statute should guide this Court’s interpretation of it.

¶ 4 Title 21 O.S.1991, § 1289.25, also known as the “Make My Day” Law, provides:

A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes.
B. Any occupant of a dwelling is justified in using any degree of physical force, including but not limited to deadly force, against another person who has made an unlawful entry into that dwelling, and when the occupant has a reasonable belief that such other person might use any [34]*34physical force, no matter how slight, against any occupant of the dwelling.
C. Any occupant of a dwelling using physical force, including but not limited to deadly force, pursuant to the provisions of subsection B of this section, shall have an affirmative defense in any criminal prosecution for an offense arising from the reasonable use of such force and shall be immune from any civil liability for injuries or death resulting from the reasonable use of such force.
D. The provisions of this section and the provisions of the Oklahoma Self-Defense Act, Sections 1 through 25 of this act, shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner (emphasis added).

¶ 5 This statute does not contain a list of definitions. Lacking a specific statutory definition, we must look to the common ordinary meaning of the term “occupant.” 25 O.S. 1991, § 1. Webster’s II defines “occupant” as “1. One that occupies a place or position, esp. a resident. 2. One who is the first to take possession of previously unowned land or premises.” Webster’s II New Riverside University Dictionary, (1984). The State argues that under these definitions, and those of “occupancy” and “occupy,” section 1289.25 refers only to a person who has a possessory or privacy interest in the premises. While we find these definitions instructive, we do not find they answer the questions before us.

¶ 6 Looking to other statutory uses of the term “occupant,” we do not find a requirement for a possessory or privacy interest. See 21 O.S.1991, § 1171 (peeping tom is any person who loiters in the vicinity of a private dwelling with the intent to gaze upon occupants therein in a clandestine manner); 21 O.S.1991, § 1438(B) (malicious mischief is the breaking and entering of a dwelling without permission of the owner or occupant thereof); 47 O.S.1991, §§ 10-111; 11-507; 11-705; 11-1110 (references to occupants of vehicles.) The use of the term “occupied” similarly implies no possessory interest. See 21 O.S. 1991, § 1401 (first degree arson committed by willful burning of any building or structure, inhabited or occupied by one or more persons).

¶ 7 Appellant directs us to the Colorado “Make My Day law, 8B C.R.S., § 18-1-704.5 (1986), after which Section 1289.25 was patterned. Much of the Oklahoma statute is the same as the Colorado law, including the preamble and the use of the term “occupant.” Appellant cites to several cases in which the Colorado courts had held the term “occupant” is synonymous with “homeowner.” However, a review of those cases reveals the Colorado courts have not been presented with the question we now have before us and therefore have not addressed whether “occupant” includes a visitor to the home.1 Likewise, other jurisdictions cited to us by Appellant have not addressed the question before us.2 Appellant is correct in noting these jurisdictions permit the homeowner to use deadly force within his own residence, but the issue of whether a visitor is similarly permitted to use deadly force is not addressed.

¶ 8 While dictionary definitions, statutory references and case law from Oklahoma and other jurisdictions are helpful in our analysis, the interpretation of the Legislature’s intent in Section 1289.25 is ultimately based upon the words in the statute itself. Reading the statute in its entirety, we find it a study in contradiction or compromise.

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Cite This Page — Counsel Stack

Bluebook (online)
1998 OK CR 67, 972 P.2d 32, 70 O.B.A.J. 789, 1998 Okla. Crim. App. LEXIS 75, 1998 WL 884926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-anderson-oklacrimapp-1998.