Wilson v. State

1975 OK CR 91, 536 P.2d 1002
Procedural entryThis page is a short order in Wilson v. State. Read the opinion of the Court — 1975 Okla. Crim. App. LEXIS 332
Court of Criminal Appeals of Oklahoma·Decided May 21, 1975·No. No. F-74-691·Published

Opinion

OPINION

PER CURIAM:

Appellant, Michael Simpson Wilson, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Cleveland County, Case No. CRF-73-486, for the offense of Burglary in the Second Degree, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1435. The jury fixed his punishment at ten (10) years’ imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

The State’s first witness at trial was the complainant, Paul Frolich, who testified that from Friday, November 9, 1973, to [1003]*1003Sunday, November 11, 1973, he and his wife were in Columbia, Missouri, and their children were staying with their grandparents. The complainant testified that he left his residence, 37 S.W. 101st, Oklahoma City, Oklahoma, unoccupied, and he further testified that he was the last to leave the house and that the windows and doors were locked and shut. When he returned to his home after the weekend, the television set was mislocated, clothes previously hanging in the closet were found laying across the bed, the suitcases were down from the closet, and the sewing machine was mislocated, all of which was substantially different from the way he left it. The complainant also testified that the back stormdoor had been sprung and a hole had been forced into the back door, and several pry marks were evident around the door.

The State’s next witness, Jim Cochran, lived across the street from the complaining witness. He testified that at approximately 4:00 A.M. on Saturday, November 10, 1973, he was awakened by the dogs in the neighborhood. He looked out the window and watched a man on the complainant’s driveway walk up to the front door, and then he testified that the man went back around the house to the side and jumped over the fence going into the back yard. The witness, at that time, called the police. The witness was unable to make an identification of the man he saw.

The State’s next witness was an officer of the Oklahoma City Police Department, William Pierce, who was the first officer to arrive at the Frolich’s home. According to his testimony, at approximately 4:08 A. M. Saturday, November 10, 1973, he received a call to check out a report of a burglary at the residence of the complaining witness. He arrived at the scene in his marked patrol car with his lights off, and pulled into the drive at an angle. He left his patrol car and walked around to the back of the complainant’s residence where he noticed the storm door was propped open. At this time his backup unit arrived with Officers Harmon and Enger. Pierce, the witness, and Enger stayed in front while Officer Harmon went to the back. Pierce went to the front door and Enger peered through the picture window at’ the front of the house. Pierce rang the doorbell and Enger saw the defendant running through the house. At that time, Pierce testified that Enger went to the back of the house and he, Pierce, took position in the yard. In a few moments someone attempted to open the front door, but slammed the door when Officer Pierce shined his flashlight at the front door entrance. The witness then testified that he heard a gunshot at the back and he immediately ran to the back where he observed Officer Harmon scuffling with someone. The officer was unable to hold onto the person, who broke away and continued running from the officer and went between two houses behind the burglarized residence. Officer Pierce, who saw the way the defendant was running, cut between two houses, intercepted and apprehended the defendant. Pierce testified that even though he lost sight of the defendant while he ran between the houses, he could identify the defendant as the same man he saw wrestling with Officer Harmon.

Officer Enger, the State’s next witness, testified that when he left the front after observing the defendant through the picture window he went to the back of the residence, entered the house through the propped-open screen door and therein saw the defendant, Michael Simpson Wilson. He testified that there was a brief chase in the house at which time the defendant avoided Officer Enger and ran out the back door. Officer Enger ran to the back door in time to see the defendant and Officer Harmon scuffling, at which time the defendant broke loose. Enger further testified that he saw the defendant run between two houses where he lost sight of the defendant. In a few moments, however, Officer Pierce had apprehended the same [1004]*1004man that Enger had seen in the house, the defendant, Michael Simpson Wilson.

Officer Pierce also testified that he found a screwdriver in the rear pocket of the defendant and found a golf-type cap, a pair of brown gloves, and a ski mask in defendant’s coat pocket. Officer Enger testified that when he entered the house the defendant had on a golf-type hat, the same as the one that Officer Pierce found on the defendant’s person.

Thereafter the State rested.

The defense called the defendant, Michael Simpson Wilson, to the stand. The defendant testified that he had been at a bar the night of the alleged burglary and when the bar closed at 2:00 A.M., he left. He further testified that a man needed a ride from the bar and that he gave the man a ride to his mother’s home. After that, he went to a Git ’n Go at 102nd and Santa Fe. He testified that it was about 3:00 A.M. when he got to the store, which was already closed. He maintained that he got out of his car because it was overheated, and he was unable to get the car started again. At this point, the defendant testified that he began to walk to a friend’s house which took him down 100th Street. He testified further that as he approached Broadway at 100th Street an officer came from between two houses and told him to lie down and be still, which he immediately did. The defendant denied being in the burglarized residence, and also denied having on his person the screwdriver, the gloves, the cap and the ski mask.

The defense also called as witnesses, Lee Patterson, president of the Lions Club of which defendant was a member, and Ron Armatage, a realtor who had dealt with the defendant. Both of these witnesses testified as to the good character of the defendant.

During the direct examination of the defendant, his attorney asked the defendant if he had ever been in trouble before, to which the defendant replied that he had been convicted of burglary out of Tulsa County. On cross-examination by the prosecuting attorney, the State presented evidence of two former convictions, one for Knowingly Receiving Stolen Property, and the second for Burglary in the Second Degree. The defendant admitted the convictions, and testified that he was the same person as the Michael Simpson Wilson convicted on both of those charges.

Also on the direct examination, he admitted that on the night in question he had been drinking alcoholic beverages in the bar to which he referred. On cross-examination, the prosecution asked the defendant, who was on parole for his prior conviction, if it was a violation of his parole to drink alcoholic beverages in a bar. The defense counsel objected, and was overruled, and the defendant answered that the drinking was a violation of his parole.

The defendant alleges as his first assignment of error that the trial court committed fundamental, prejudicial error in failing to instruct the jury as to the limited purposes for which evidence of defendant’s prior convictions was admitted into evidence.

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Wilson v. State, 1975 OK CR 91, 536 P.2d 1002 (Okla. Ct. App. 1975).

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