2007 OKCR 21 - Goree v. State

¶1OPINION

CHAPEL, Judge.

¶2T 1 Wesley Darrell Goree was convicted in a non-jury trial of Counts I and II, Assault and Battery with a Deadly Weapon in violation of 21 0.8.2001, § 652(C), and Count III, Intentional Discharge of a Weapon into a Dwelling in violation of 21 0.8.2001, § 1289.17A, all after two or more former felony convictions, in the District Court of Kay County, Case No. CF-2004-191.1 The Honorable Leslie D. Paige sentenced Goree to twenty-five (25) years imprisonment on each of Counts I and II, and twenty (20) years imprisonment on Count III. Goree appeals from these convictions and sentences and raises three propositions of error in support of his appeal.

¶3 *5842 At approximately 4:00 a.m. on April 11, 2004, Goree fired several shots into a crowd of partygoers in front of Chastity Swindall's house. Audric Hardiman and Swindall were shot and injured. At least one bullet entered the house. As the shots began, a guest at the party shot at Goree, injuring him. The victims and house were shot with Goree's gun. Goree claimed he began shooting after other shots were fired.

¶4T8 In Proposition I Goree claims the trial court erred in allowing the State to amend the Information and modify the jury instructions, deleting the element of intent to take a human life. We find that Proposition I merits discussion, and publish this Opinion to fully consider this issue. We find that the trial court did not err in removing the element of intent to take a human life from the charges of Assault and Battery with a Deadly Weapon under 21 0.8.2001, § 652(C). Discussing § 652(C) in Burleson v. Saffle,2 we noted, "Assault and battery with a deadly weapon, as set forth in this statute, does not explicitly require an intent to injure or kill if the weapon or force used is likely to produce death.3 This conclusion is based on the current language of the statute, which was substantially revised in 1992.4

¶5T4 This revision divided § 652 into three separate sections. The Legislature separated the crime of shooting with intent to kill from the crimes of assault and battery with a deadly weapon and attempts to kill, and added a section specifically prohibiting drive-by shootings as a separate criminal offense.5 Section 651(A) now clearly and explicitly requires intent to kill. Neither §§ 652(B) nor 652(C) now have that explicit requirement. Reading an intent to kill element into § 652(B), prohibiting drive-by shooting, would contravene the Legislature's decision to make persons liable for drive-by shooting "in conscious disregard for the safety of any other person or persons"; this language makes no sense if intent to kill is also an element of the crime. The Legislature could easily have included an intent requirement in § 652(C) as well. It did not, instead referring to an assault and battery "using a deadly weapon" or "by any means likely to produce death." Neither of these phrases, on their face, require the State to prove that the defendant intended to kill his vietim.

¶61 5 We acknowledge that the Uniform Jury Instructions (OUJI) and previous cases include, as an element of assault and battery with a deadly weapon, the intent to take a human life.6 However, this is based on the previous version of § 652. Given the current statutory language, requiring the State to prove intent to kill for this crime would amount to adding an element not present in the statute. The jury instruction on this crime should reflect this change in the law. In conjunction with this case, the Court will refer this issue to the Oklahoma Uniform *585Jury Instruction Committee to modify OUJI-CR(2nd) 4-6 by removing the fourth element, "intent to take a human life."

¶716 In Proposition II Goree claims the evidence was insufficient to sustain his convictions. We find that any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found sufficient evidence of the charged crimes beyond a reasonable doubt.7 In Proposition III Go-ree claims his sentences are excessive. We find that, under the facts and circumstances of this case, Goree's sentences are not excessive.8

¶8Decision

¶9T7 The Judgments and Sentences of the District Court are AFFIRMED. The Order revoking the suspended sentence in Kay County District Court Case No. CF-1997-307 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

C. JOHNSON, V.P.J. and A. JOHNSON, J.;: concur.LUMPKIN, P.J.: concur in results.LEWIS, J.: concur in part/dissent in part.

¶10. Judge Paige also revoked Goree's five (5) year suspended sentence in Kay County District Court Case No. CF-1997-307.

¶11. 2002 OK CR 15, 46 P.3d 150.

¶12. Burleson, 46 P.3d at 153.

¶13. The statute previously stated: Every person who intentionally and wrongfully shoots another with or discharges any kind of firearm, with intent to kill any person, is punishable by imprisonment in the penitentiary not exceeding life. Any person who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, or in any manner attempts to kill another, or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding twenty (20) years.

¶14. Section 652(C) prohibits any assault and battery upon another, by means of any deadly weapon, or by such other means or force as is likely to produce death. It also separately prohibits attempts to kill and use of a deadly weapon in resisting legal process. Read as a whole, § 652 separately prohibits five crimes (shooting with intent to kill, use of a vehicle to facilitate the intentional discharge of a weapon, assault and battery with a deadly weapon or by any means likely to produce death, attempts to kill, and use of a deadly weapon in resisting legal process). Separate criminal offenses may be set forth as subsections of the same criminal statute. For example, first degree felony murder and first degree malice murder are separate offenses which may be charged separately, although they are contained within the same statute. 21 O.S. 2001, § 701.7. See also Pinkley v. State, 2002 OK CR 26, 49 P.3d 756 (witness intimidation statute contains separate crimes with different elements in two subsections).

¶15. OUJI-CR (2nd) 4-6; Ellis v. State, 1992 OK CR 35, 834 P.2d 985, 992; Hackett v. State, 1988 OK CR 44, 751 P.2d 761; Favro v. State, 1988 OK CR 18, 749 P.2d 127; Meggett v. State, 1979 OK CR 89, 599 P.2d 1110.

¶16. Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, 1041-42. Goree shot at a house and into a crowd of people, injuring two victims. He relies in part on the State's failure to prove that he intended to kill his victims but, as we held in Proposition I, this is not an element of assault and battery with a deadly weapon. Goree also claims that the evidence shows he acted in self-defense. Because Goree fired the first shots, the trial court rejected this claim of self-defense at trial and the jury was not instructed on it. We agree that the evidence did not support that claim.

¶17. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149 (reaffirming the Court's use of the "shock the conscience" standard and noting that, as with a proportionality review, such a standard requires consideration of all the facts and circumstances of the case and the defendant's background).