Wolfenbarger v. State

1973 OK CR 84, 508 P.2d 694, 1973 Okla. Crim. App. LEXIS 426
CourtCourt of Criminal Appeals of Oklahoma
DecidedFebruary 21, 1973
DocketNo. A-17195
StatusPublished
Cited by4 cases

This text of 1973 OK CR 84 (Wolfenbarger 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
Wolfenbarger v. State, 1973 OK CR 84, 508 P.2d 694, 1973 Okla. Crim. App. LEXIS 426 (Okla. Ct. App. 1973).

Opinion

OPINION

BUSSEY, Judge:

Appellant, Johnny Wolfenbarger, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Stephens County for two offenses of Robbery With Firearms. His [696]*696punishment was fixed at thirty (30) years imprisonment, Case No. CRF-71-70, and twenty-five (25) years imprisonment, Case No. CRF-71-71, the last fifteen (15) years of the sentence imposed in Case No. CRF-71-70 to run concurrently with the first fifteen (15) years of the term assessed in CRF-71-71 and from said judgments and sentences, a timely appeal has been perfected to this Court.

At the trial Clarence “Tiny” Wright testified that on March 21, 1971, he lived at 412 Oak in Duncan, Oklahoma. On March 20, 1971, he was in the defendant’s pawn shop in Lawton. He testified that he had known the defendant approximately seven or eight years. While in the pawn shop, the defendant asked him about the sale of a lounge he previously owned and commented, “Well, I heard you got $10,000.00 for it.” (Tr. 12) The defendant asked his wife, Rosemary, to look at a diamond ring which he was wearing. The ring was a seven diamond cluster, containing a little over three carats. Wright had purchased the ring from the defendant several years prior. The defendant asked him if he was interested in selling it back and Wright replied in the negative. While Wright was in the pawn shop, he had approximately $7,800.00 in cash in his right front pocket.

At approximately 10:15 p. m. on the following evening, he noticed a car pull into his driveway. He got up and looked to see who it was and the car backed out and drove away. In approximately ten minutes, the same car returned and drove into the driveway. Wright unlatched the storm door to see if he could help the persons in the car. The man from the car pulled the door open and suddenly three armed men entered his home. They grabbed Wright, handcuffed him, and threw him to the floor. They took a spread from a nearby couch bed and attempted to cover him up. They went into his wife’s bedroom and “told her to shut up, nobody was going to get hurt.” She asked them what they wanted and they said “money.” She stated that the money she had was in her purse. One of the men came back into the room where he was lying on the floor and struck Wright in the head with a .38 caliber revolver. Wright pretended to be knocked out and the man reached inside his front pants pocket and removed his money. While Wright was lying on the floor, he had turned the diamond ring around so that it looked like a wedding ring. The robber reached down to open his hand and said, “give me that ring.” (Tr. 21) He identified the robbers as Co-defendant Bell, Co-defendant McCoy, and Co-defendant Urbin. His mother-in-law was awakened by the commotion and was forced to get in bed with his wife, Dorothy, by the men. One of the men said, “you’d better find that little girl.” Shortly thereafter they stated, “let’s get the hell out of here, the little girl’s gone.” (Tr. 29) The men tore the headboard from a bed which was blocking the back window and exited through the window. Wright immediately went outside to get help and observed a police car with two officers in it, parked in front of his house. He told them what had just transpired and they radioed for assistance. The officers subsequently removed the handcuffs from Wright’s wrists. He testified that approximately $8,000.00 and the diamond ring was taken from his person and approximately $2,500.00 was taken from his wife.

Defendant Delbert Urbin testified that on the afternoon of March 21, 1971, he, Defendant McCoy, and Defendant Bell left Wichita, Kansas, and drove to Lawton. He testified that they were going to pull a “holdup of some kind” and that he was supposed to receive about $2,500.00. They arrived in Lawton at approximately 6:30 to 7:00 and proceeded to the defendant’s pawn shop. Defendants McCoy and Bell went into the shop and stayed approximately thirty minutes. The defendant returned to the car with Defendant McCoy and Defendant Bell and they drove to Duncan. Upon arriving in Duncan, the defendant directed them to the home of “Tiny” Wright. The defendant informed them that Wright had recently sold a club and had about $10,000.00 in cash in his [697]*697pocket and that he had a diamond ring. They drove around the house two times and then returned to Lawton. Arriving at approximately 8:30. Defendants McCoy and Bell went into the pawn shop and he purchased gas at a nearby Texaco service station using McCoy’s credit card. He signed McCoy’s name to the ticket. He picked up Defendants McCoy and Bell and they drove back to Duncan. They proceeded to Wright’s house and he pulled into the driveway; hut upon seeing Wright looking out the door, they drove off again. He left Defendants Bell and McCoy about a block from the house and returned to the residence and pulled in the driveway. He went up to the house and Wright opened the door; he was grabbed and they all went into the house. He testified that they were all armed, because the defendant had advised them that Wright was known to keep a weapon in the house. He took the money from Wright’s wife and Defendant Bell took the money and ring from Wright. Upon realizing that the little girl was missing from the house, the three escaped out of a rear bedroom window and ran down the alley into a creekbed. Defendant Bell was arrested near a filling station and he and Defendant McCoy were arrested near the creekbed.

Marion Smith testified that on March 21, 1971, he was employed at a Texaco service station located approximately four blocks away from the defendant’s pawn shop in Lawton. He identified State’s Exhibit No. 13, a credit card invoice signed by Glen McCoy which he filled out on the day in question.

Mary Sturns testified that she lived at 412 Oak in Duncan, with her daughter, Dorothy. On the evening in question, she was almost asleep when she heard a commotion. She got up and was ordered by gunpoint to go to her daughter’s room and to get in bed. The man said that this was a robbery and they wanted the money. Shortly thereafter one of the men said that the little girl was gone and the men left through the back window.

Officer Taylor testified he assisted in the arresting of Bell, McCoy and Urbin. He found approximately $3,100.00 in the immediate area of the arrest.

Officer Rue testified that at approximately 10:37 p. m. on the evening in question he answered a call to 413 Oak, which was across the street from “Tiny” Wright’s residence. He observed Wright run to the patrol car with his hands handcuffed behind him. He identified State’s Exhibit No. 9 as the handcuffs he removed from Wright.

Detective Foster testified that he arrived at the scene at approximately 11:00 p. m. He and another officer searched the creekbed area and found a pair of coveralls, two rolls of adhesive tape, a hat, a billfold, and a Walther 7.6S millimeter automatic. He subsequently searched a 1969 Ford LTD with Kansas license plates and found State’s Exhibit No. 23, a handcuff box lying on the back floorboard.

Perry Brown testified that he owned and operated Mac’s Grocery which was located just across the street from the defendant’s pawn shop in Lawton. At approximately 6:30 p. m. on March 21, he sold the defendant’s wife two rolls of tape similar to State’s Exhibits No. 19 and 20, which were found in the creekbed.

Ron Rutledge testified that he was employed as a detective with the Lawton Police Department. That on March 28, he went to the defendant’s pawn shop and purchased a pair of handcuffs.

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Related

Young v. City of Tulsa
1977 OK CR 153 (Court of Criminal Appeals of Oklahoma, 1977)
Lester v. State
1977 OK CR 145 (Court of Criminal Appeals of Oklahoma, 1977)
Synnott v. State
1973 OK CR 426 (Court of Criminal Appeals of Oklahoma, 1973)

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Bluebook (online)
1973 OK CR 84, 508 P.2d 694, 1973 Okla. Crim. App. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfenbarger-v-state-oklacrimapp-1973.