State of Oklahoma v. Sanders

Stillwater, Oklahoma criminal defense lawyer represented the defendant charged with Firearm After Former Conviction of a Felony (Count I) (21 O.S.Supp.2012, § 1283) and Knowingly Concealing Stolen Property After Former Conviction of a Felony (Count II) (21 O.S.2011, § 1713).



¶5 Title 21 O.S.2011, § 11(A) governs multiple punishments for a single criminal act. Section 11 provides in relevant part that:



[A]n act or omission which is made punishable in different ways by different provisions of this title may be punished under any of such provisions, ... but in no case can a criminal act or omission be punished under more than one section of law; and an acquittal or conviction and sentence under one section of law, bars the prosecution for the same act or omission under any other section of law.



¶6 The proper analysis of a Section 11 claim focuses on the relationship between the crimes. Barnard v. State, 2012 OK CR 15, ¶ 27, 290 P.3d 759, 767; Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126. If the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent. Barnard, 2012 OK CR 15, ¶ 27, 290 P.3d at 767. If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma's statutory ban on "double punishment" is not violated. Littlejohn v. State, 2008 OK CR 12, ¶ 16, 181 P.3d 736, 742. Thus, it is first necessary to examine the relationship between the two crimes to determine whether they constitute a single act. Barnard, 2012 OK CR 15, ¶ 27, 290 P.3d at 767.



¶7 This Court has considered multiple punishment claims involving convictions for Felon in Possession in several unpublished cases. Generally, this Court has found no Section 11 violation for felon in possession and other crimes in which the weapon was used to commit a crime at a later time. This line of cases generally state that felon in possession is a status crime and the defendant becomes guilty of the offense of felon in possession the moment he comes into possession of the weapon. Later use of the gun to commit another crime has been found to be a separate act from the preceding unlawful possession.1



¶8 Many of these unpublished cases lack a full factual analysis and we realize the confusion this creates in trying to discern the appropriate Section 11 analysis. Based upon our published case law the factors to consider in a Section 11 analysis are: 1) the particular facts of each case; 2) whether those facts set out separate and distinct crimes; and 3) the intent of the Legislature. While the crime of felon in possession is complete upon a convicted felon being in possession, either personally or constructively, of a weapon, see Hancock v. State, 2007 OK CR 9, ¶ 115, 155 P.3d 796, 823, the individual's further actions dictate whether additional criminal charges may arise from those acts. We use the terms "separate and distinct" in a Section 11 analysis in an attempt to give guidance to trial judges and attorneys. However, ultimately the trial judge must analyze the issue based on the particular facts presented, just as this Court must do on appeal.



¶9 In the present case, Payne County Sherriff's deputies served an arrest warrant on Appellant at a house owned by his girlfriend, Dakota Gottfried. Deputies had previously encountered Appellant at the house and had even been told by Appellant that he lived at the house. Appellant was known to the deputies to be a convicted felon. Deputy Myers approached the front door of the house and knocked several times. When the door opened, the deputy felt as though someone was behind the door. Deputy Myers called for Deputy Nack who was at the back door and together they entered the house with guns drawn. Appellant was observed crouching behind the front door with his hands up. Appellant obeyed directions to get on the floor and he was subsequently handcuffed.



¶10 In a protective sweep of the house, a Glock 17C2 was observed on the kitchen table. While the kitchen area appeared to be a separate room, it was open and visible from the front door. The weapon could be seen from the front door. Deputies checked the weapon and found it was magazine loaded but not chamber loaded. By running the serial number, the deputies learned the gun was stolen.



¶11 Under these facts, Appellant was charged and convicted of committing the offenses of felon in possession and knowingly concealing stolen property at the same time, "on or about September 5, 2013". (O.R. 13). The same weapon was used to support both convictions. There was no temporal break in time between Appellant's possession of the gun and his concealing it. Because of the language of the felony information and the lack of a showing of "separate and distinct" acts, we find Appellant's act of having the gun improperly resulted in two charges and resulting convictions.3



¶12 Therefore, we find the trial court abused its discretion in finding that two separate and distinct crimes had been committed and in denying the motion to dismiss Count II. As Appellant's two convictions violate the multiple punishment provisions of Section 11, Appellant's conviction in Count II for Knowingly Concealing Stolen Property should be reversed with instructions to dismiss. Based upon this conclusion, we need not address Appellant's double jeopardy claim. See Barnard, 2012 OK CR 15, ¶ 26, 290 P.3d at 767 (because Section 11 complements the double jeopardy protections of the Oklahoma and United States Constitutions, a traditional double jeopardy analysis is conducted only if Section 11 does not apply).

Reversed