Cooper v. State , 62 O.B.A.J. 1449 ( 1991 )

LANE, Presiding Judge,

concurring in result:

I agree with the majority that the state failed to present sufficient evidence of Appellant’s prior felony convictions. I disagree that Henager is in any part inconsistent with the majority opinion.

The court in Henager stated the general rule of law concerning proof of identification: “identity of names is prima facie evidence of identity of person and is sufficient in the absence of rebutting testimony,” at p. 676, quoting Williams v. State, 364 P.2d 702 (Okl.Cr.1961). However, we held the state had met its burden of proof because of the uniqueness of the Appellant’s name. The holding in Henager is in line with the majority’s holding and prior cases, Wilson v. State, 568 P.2d 1323 (Okl.Cr.1977) citing Williams v. State, 364 P.2d 702 (1961), that in addition to identity of name there must be other facts and circumstances for the jury to consider in reaching their verdict. Included as other facts and circumstances is the “commonness or un-usualness of the name.” It is therefore error to overrule Henager.

Furthermore, Appellant’s failure to offer rebuttal evidence does not dissipate the state’s burden of proof. While identity of name is prima facie evidence of identity of person, once this is shown by the state the burden of producing evidence shifts to the defense. However, the burden of proof remains on the state regardless of whether the defense produces any evidence whatsoever. Mitchell v. State, 659 P.2d 366, 369 (Okl.Cr.1983). The state has the burden of proving beyond a reasonable doubt that the “Cecil Cooper, Jr.” convicted of rape in California and the “Cecil Cooper” convicted of rape in Illinois are the same person as the appellant. The state has failed to do so.