White v. STATE, EX REL. HOPPER ( 1991 )

PARKS, Judge,

dissenting:

I must respectfully dissent to the Court’s determination that the doctrine of estoppel does not bar prosecution of the second con game.

I consider Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), to be dispositive. In that case, we asked the question: “If the State could not separate the four crimes, why did it refuse to try them together?” Chaney at 282. The same could be asked here. In the first trial, concerning victim James Green, the State offered evidence involving victim Yolonda Williams and in the second trial, concerning victim Yolonda Williams, the State intends to produce evidence regarding victim James Green. In fact, the Notice Of Intent To Offer Evidence Of Other Crimes filed by the State in Case Nos. CF-90-4659 and CF-90-5201 in the District Court of Tulsa County January 31, 1991 states: “Evidence of each of these ‘confidence games’ is offered as evidence of other offenses which is admissible because it tends to establish the Defendants’ motive, intent, absence of mistake or accident and the identity of a common scheme or plan in which to obtain property by trick or deception. The commission of these two offenses are [sic] so related to each other that the proof of one tends to establish the other.” (cite omitted)

The State cannot have it both ways. If the offenses are so related that the proof of one tends to establish the other, then the two charges should have been brought in one trial. Therefore, I would grant the petitioners’ application for writ of prohibition and/or mandamus.