2001 OKCR 14 - Roberts v. State

LUMPKIN, Presiding Judge:

¶1Dissents.

¶2T1. I dissent to the reversal of this case for the following reasons. The Court has sua sponte raised the issue of instructing the jury on consent as a defense to the crime of burglary. In the appellate brief, Appellant argues the trial court erred in modifying Instruction No. 14 by improperly including the seventh element. The issue of a jury instruction on consent was not raised on appeal,. Accordingly, it is inappropriate for this Court to raise the issue on its own and decide the case on that basis. Further, the issue of consent as a defense was not raised at trial as Appellant neither requested an instruction on consent nor objected to the instruction given. By failing to raise the issue at trial, Appellant has failed to preserve the issue for appellate review. See Shields v. State; 1971 OK CR 454, ¶ 11, 490 P.2d 1390, 1392 (record reflected appellant did not request a trial instruction on consent as a bar to breaking, therefore, he waived consideration of the issue for appellate review). Therefore, our review is limited to the issue raised on appeal, ie., whether the inclusion of the seventh element in Instruction No. 14, was plain error. See Simpson v. State, 1994 OK CR 40, ¶ 11, 876 P.2d 690, 695.

¶3T2 In Instruction No. 14, the trial court added a seventh element "going through an unlocked door." This element is based upon the language in 21 0.8.1991, § 14831@) (C ... [bly breaking in any other manner, ... "). The inclusion of this element in the jury instruction merely restated the first element of "breaking." Therefore, the instruction accurately stated the applicable law and did not constitute plain error. See Kinsey v. State, 1990 OK CR 64, ¶ 9, 798 P.2d 630, 633 ("this Court will not interfere with a judgment as long as the instructions, when considered as a whole, fairly and accurately state the applicable law").

¶4T3 I do agree with the Court that the issue of consent or lack of consent is not an element of the crime in this case. I also agree that consent or lack of consent is an affirmative defense that must be raised by a defendant's presentation of sufficient evidence, either through the prosecution witnesses or witnesses called by the defense, to warrant an instruction on the defense. Sufficient evidence to support the consent defense was not presented in this case to allow the trial judge to even "divine" it as being a required instruction. Regardless, as I stated previously, Appellant did not raise this issue either at trial or on appeal. Therefore, this Court should not "divine" it as one for him.

¶5T4 I also agree that when a consent defense or a lack of consent defense is properly raised with sufficient evidence, an instruction

¶6 *591on the defense should be given. See White v. State, 1998 OK CR 69, ¶¶ 3-7, 973 P.2d 306, 312-13 (Lumpkin, J. Specially Concur);1 Kinsey, 798 P2d at 6332 However, the Court's proffered instruction does not correctly state the law as set out in the opinion. The State does not have the burden to prove beyond a reasonable doubt that the defendant did not enter without the consent or authorization of an owner or occupant until the defendant has presented sufficient evidence the entry was based on consent. For this reason, the instruction should also set out that it is the burden of the defendant to present the affirmative defense of consent. If sufficient evidence of consent to enter has been raised, it is the State's burden to prove beyond a reasonable doubt that the defendant did not enter with consent or authorization. If the jury finds the State has failed to sustain its burden of proof, then the defendant must be found not guilty. See eg. OUJI-CR (2d) 8-33 (defense of insanity-burden of proof); OUJI-CR (2d) 8-88 (defense of voluntary intoxication-burden of proof); OUJI-CR (2d) 8-49 (defense of self-defense-burden of proof).

¶7. In White, 973 P.2d at 312-13, it was stated:

'"[Blefore a defendant is entitled to an instruction on the defense ..., he must establish a prima facie case of the ... elements of that defense." Michigan v. Lemons, 454 Mich. 234, 562 N.W.2d 447, 454 (1997). Prima facie evidence is defined as:

Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient ... to sustain a judgment in favor of the issue which it supports.

¶8See also Jackson v. State, 1998 OK CR 39, 114, 964 P.2d 875, 901-902 (OkL.Cr.1998) (Lumpkin, J. concurring in results).

¶9. "Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense. Once presented, it is then the responsibility of the trial judge to determine if the evidence is sufficient to support the instruction. The defendant is then entitled to an instruction on any theory of defense supported by the evidence, as long as that theory is tenable as a matter of law." Kinsey, 798 P.2d at 633.