State v. Kistler

Counsel

¶ 2 On May 19, 2016, the defendant was charged in Case No. CF-2016-364 with Count 1: Robbery With a Firearm; and Count 2: Burglary in the First Degree. The preliminary hearing was held on December 16, 2016, and the defendant was bound over for trial on both charges. The facts of this case are basically that the defendant broke and entered a dwelling house and, while inside, used a firearm to rob the occupant., ¶ 3 On March 1, 2017, the defendant filed a motion to dismiss Count 2. The defendant argued he could not be punished for Count 2, pursuant to 21 O.S.2011, § 11 (A) and Lawson v. State , 1971 OK CR 188, 484 P.2d 900, because Count 2 involved the same criminal act or omission as Count 1. On March 16, 2017, the State filed its response claiming that Robbery With a Firearm and Burglary in the First Degree are separate crimes that can both be punished in this case. The State argued the Lawson decision can be distinguished from this case as being inconsistent with more recent decisions issued by this Court. On May 17, 2017, Judge Kistler issued *900his order accepting the defendant's arguments and ordering the State "based upon Lawson v. State , 1971 OK CR 188, 484 P.2d 900 and 22 [sic] O.S. § 11" to dismiss one of the two counts charged in this case and elect which count to proceed upon at trial., ¶ 5 Lawson was appealing to this Court from his conviction for the crime of Burglary in the First Degree and his sentence of twenty years imprisonment. Lawson , 1971 OK CR 188, ¶ 2, 484 P.2d at 901. "[H]e was convicted under the same facts, circumstances and with the same evidence for the crime of 'Robbery With Firearms' for which he was earlier convicted." Id . Lawson's victim was at his home when he was awakened by a noise in the hallway. Lawson , 1971 OK CR 188, ¶ 4, 484 P.2d at 901. When the victim switched on the light, he saw Lawson dressed in black attire, holding a gun pointed at him. Id. Lawson bound and gagged the victim and then started rummaging through the house. Id. A complete inventory of the items Lawson stole from the victim's house was later prepared. Lawson , 1971 OK CR 188, ¶ 5, 484 P.2d at 902. This Court determined that Section 11 of Title 21 prevents multiple punishments "for several crimes committed during one criminal transaction." Lawson , 1971 OK CR 188, ¶ 6, 484 P.2d at 902. This Court found that Lawson's acts were set on foot for the single purpose of committing a burglary, but in fulfilling that purpose, he also committed armed robbery. Id . This Court also found that Lawson's First Degree Burglary and Robbery With Firearms charges were one single transaction based upon the same facts and the same evidence. Lawson , 1971 OK CR 188, ¶¶ 9, 12, 484 P.2d at 903. Because Lawson had already been convicted of and was undergoing punishment for Robbery With Firearms, this Court reversed and remanded Lawson's First Degree Burglary conviction and sentence with instructions to dismiss. Lawson , 1971 OK CR 188, ¶ 13, 484 P.2d at 903., ¶ 7 In 1999, this Court clarified the proper analysis to be used in determining whether Section 11 of Title 21 has been violated. Davis v. State , 1999 OK CR 48, 993 P.2d 124. In Davis , the defendant was convicted of Larceny from a House (count 1), Assault with a Dangerous Weapon (count 2), and Larceny of an Automobile (count 3). The defendant argued that his convictions for all three counts violated the provisions of Section 11. This Court specifically rejected tests that expand the Section 11 prohibition to crimes which are a mere means to some other ultimate objective, or part of some primary offense. Davis , 1999 OK CR 48, ¶¶ 10, 11, 993 P.2d at 126. This Court held that the proper analysis of a Section 11 claim focuses on the relationship between the crimes. Davis , 1999 OK CR 48, ¶ 13, 993 P.2d at 126 ; see also Sanders v. State , 2015 OK CR 11, 358 P.3d 280 (possession of one firearm cannot be criminalized as both felon in possession and knowingly concealing stolen property); Head v. State , 2006 OK CR 44, 146 P.3d 1141 (possession of crack cocaine and possession of drug paraphernalia are separate criminal acts); Hale v. State , 1995 OK CR 7, 888 P.2d 1027 (one act of intercourse cannot be criminalized as both rape *901and incest). This Court found Davis' crimes were a series of separate crimes which are not prohibited by Section 11, even if they tangentially relate to each other or are committed during a continuing course of conduct. Davis , 1999 OK CR 48, ¶¶ 7, 13, 993 P.2d at 126, 127.