IRWIN v. STATE , 2018 OK CR 21 ( 2018 )

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IRWIN v. STATE

OSCN Found Document:IRWIN v. STATE

IRWIN v. STATE
2018 OK CR 21
Case Number: F-2016-1161
Decided: 06/14/2018
JAMES RICHARD IRWIN, Appellant v. STATE OF OKLAHOMA, Appellee.

Cite as: 2018 OK CR 21, __ __

OPINION

LEWIS, VICE PRESIDING JUDGE:

¶1 James Richard Irwin, Appellant, was tried in a non-jury trial and convicted of Count 1, felony stalking, in violation of 21 O.S.Supp.2015, § 1173; and Counts 4 through 7, violation of a protective order, a misdemeanor, in violation of 22 O.S.2011, § 60.6, in Comanche County District Court, Case No. CF-2016-10. He also pled guilty before trial to Count 2, assault and battery, and Count 3, malicious injury to property. The Honorable Mark R. Smith, District Judge, sentenced Irwin to five (5) years imprisonment and a $1,000 fine in Count 1; ninety (90) days imprisonment, a $1,000.00 fine, and $3,028.73 restitution in Count 2; one (1) year imprisonment, a $500.00 fine, and $661.20 restitution in Count 3; and one (1) year imprisonment and a $500.00 fine in each of Counts 4 through 7, ordering the sentences in Counts 3 through 7 served concurrently.

FACTS

¶2 After a two-month relationship with the victim ended, Appellant continued to make unwanted and threatening contact with her. On one occasion, Appellant confronted and physically assaulted a male friend of the victim. That same day, Appellant vandalized the victim's car with spray paint. The victim sought an emergency order of protection against Appellant, which was served on him the following day.

¶3 In violation of the protective order, Appellant followed the victim in his truck after she left a friend's house. Appellant pulled in front of her and slammed on his brakes, forcing her to take evasive action. Appellant then pointed a handgun out the window and shot it at her car. Appellant also continued to harass the victim and violate the protective order by sending text messages and leaving notes on her car window.

ANALYSIS

¶4 In his only proposition of error, Appellant argues that his convictions for felony stalking (Count 1) in violation of a protective order, and four (4) violations of the protective order (Counts 4-7), violate the statutory prohibition against multiple punishments for a single criminal act, 21 O.S.2011, § 11, as well as the constitutional prohibition against double jeopardy. He failed to raise these objections at trial, waiving all but plain error. Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 692-93. Appellant must therefore show that a plain or obvious error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court will correct plain error only where it seriously affects the fairness, integrity, or public reputation of the proceedings. Id.

¶5 Proper analysis of a section 11 claim focuses on the relationship between the crimes. If two or more crimes truly arise out of one act, section 11 prohibits prosecution and punishment for more than one crime. Section 11 does not bar the charging and conviction of separate crimes which may only tangentially relate to one or more crimes committed during a continuing course of conduct. Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126-27. Traditional double jeopardy analysis is conducted only if section 11 does not apply. Mooney v. State, 1999 OK CR 34, ¶ 14, 990 P.2d 875, 883.

¶6 The crime of stalking, as pertinent here, is the willful, malicious, and repeated following or harassment of another in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested, and which actually causes the person to feel terrorized, frightened, intimidated, threatened, harassed, or molested. 21 O.S.Supp.2015, § 1173(A)(1), (2). When the defendant stalks another while a protective order is in effect, with actual notice of the order, stalking is a felony. § 1173(B)(1). The crime of violating of a protective order includes the violation of the order after its service on the defendant. 22 O.S.2011, § 60.6(A)(1). The State concedes that Appellant's convictions for stalking and violating the protective order arise from the same criminal acts under Davis. We agree. Appellant feloniously stalked the victim by willfully, maliciously, and repeatedly harassing her in violation of the protective order. Punishment of Appellant by terms of imprisonment and fines totaling $2,000.00 for violating the protective order plainly violates section 11. Counts 4 through 7 are therefore reversed and remanded with instructions to dismiss.

DECISION

¶7 The Judgment and Sentence in Count 1 is AFFIRMED. The Judgment and Sentence in Counts 4 through 7 are REVERSED and REMANDED with instructions to dismiss. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY
HONORABLE MARK R. SMITH, DISTRICT JUDGE

APPEARANCES AT TRIAL	APPEARANCES ON APPEAL
TERESSA WILLIAMS 1309 W. GORE BLVD. LAWTON, OK 73501 ATTORNEY FOR DEFENDANT	RICKI J. WALTERSCHEID P.O. BOX 926 NORMAN, OK 73072 ATTORNEY FOR APPELLANT
JORDAN CABELKA EVAN WATSON ASST. DISTRICT ATTORNEYS 315 SW. 5TH ST. LAWTON, OK 73501 ATTORNEYS FOR STATE	MIKE HUNTER ATTORNEY GENERAL ROBERT WHITTAKER ASSISTANT ATTORNEY GENERAL 313 E. 21ST ST. OKLAHOMA CITY, OK 73015 ATTORNEYS FOR APPELLEE

OPINION BY LEWIS, V.P.J.
LUMPKIN, P.J.: Concur in Results
HUDSON, J: Concur
KUEHN, J: Concur
ROWLAND, J: Concur

Citationizer^© Summary of Documents Citing This Document

Cite	Name	Level
None Found.

Citationizer: Table of Authority

Cite	Name	Level
Oklahoma Court of Criminal Appeals Cases
	Cite	Name	Level
	1994 OK CR 40, 876 P.2d 690,	SIMPSON v. STATE	Discussed
	2006 OK CR 19, 139 P.3d 907,	HOGAN v. STATE	Discussed
	1999 OK CR 48, 993 P.2d 124,	Davis v. State	Discussed
	1999 OK CR 34, 990 P.2d 875, 70 OBJ 2414,	Mooney v. State	Discussed
Title 21. Crimes and Punishments
	Cite	Name	Level
	21 Ohio St. 11,	Specific Statutes in Other Chapters as Governing - Acts Punishable in Different Ways	Cited
	21 Ohio St. 1173,	Penalties for Stalking - Definitions	Discussed
Title 22. Criminal Procedure
	Cite	Name	Level
	22 Ohio St. 60.6,	Violation of Protective Order - Penalty	Discussed