Kenneth Ray Kinchion v. State of Oklahoma

¶1 Oklahoma City, Oklahoma, criminal defense lawyer represented the Defendant charged with Conspiracy to Commit a Felony, Robbery with a Dangerous Weapon (Counts 1 and 3) (21 O.S. 1991, §§ 421 & 801); First Degree Murder (Count 2) (21 O.S. 1991, § 701.7); Robbery with a Dangerous Weapon (Count 4) (21 O.S.Supp.1997, § 801); and Felonious Possession of a Firearm (Counts 5 and 7).


¶2 On November 8, 2000 , Appellant also known as Peanut, DeWayne Shirley also known as Pudgy, and Teron Armstrong, also known as T-Noc, members of the Oak Grove Posse, robbed two convenience stores in Oklahoma City . The first armed robbery was committed at Coker’s Corner, on South Kentucky Street , at approximately 10:00 a.m. The second armed robbery was attempted shortly after 8:00 p.m. at Tran’s Food Mart on South May. Appellant carried the gun in the first robbery. However, in the second robbery, Armstrong carried the gun. After Armstrong threatened the owner of the store, Han Vo, with the gun, Han Vo shot and killed Armstrong with a .38 caliber revolver he kept under the counter.

¶3 Appellant raises the following propositions of error in support of his appeal:

I. The statutory offense of Felony Murder does not arise from the shooting death of a co-felon by a robbery victim during a convenience store robbery.

II. The evidence was insufficient to prove the conspiracy allegations beyond a reasonable doubt.

III. Two counts of conspiracy violate the constitutional prohibition against double jeopardy.

IV. There was no evidence that Appellant possessed a firearm at the robbery at Tran’s Food Mart.

V. The trial court erred in refusing defense counsel’s request for a jury instruction on the exculpatory statement doctrine.

VI. Appellant’s sentences on the conspiracy and robbery convictions were improperly enhanced under the Habitual Criminal Statute.

VII. When considered cumulatively, the multiple errors addressed herein denied Appellant due process and fundamental fairness.

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¶9 In his appellate brief and in oral argument before this Court Appellant argued that under the law of imputed intent, the unintended death of his co-felon cannot be imputed to him. The doctrine of imputed intent is a common law principle. The common law has been abrogated by state statute in Oklahoma . See 22 O.S.2001, § 9. Further, the very language of 21 O.S.Supp.1996, § 701.7(B) evidences an intent by the Legislature to hold a defendant criminally responsible for the death of a co-felon when that death occurs during a felony so inherently dangerous as to create a foreseeable risk of death. Accordingly, we find the statutory offense of felony-murder applies to the present case and Appellant was properly charged and convicted of first degree felony-murder.

The Judgment and Sentence in Count 5, Felonious Possession of a Firearm is REVERSED WITH INSTRUCTIONS TO DISMISS. The Judgments and Sentences on all remaining counts are AFFIRMED. Appellant’s Motion to Supplement is DENIED.