White v. State

OPINION

BUSSEY, Judge:

Omar Denton White, appellant, was convicted by jury of Second Degree Burglary After Former Conviction of Two or More Felonies in the Oklahoma County District Court, Case No. CRF-85-4458. He was sentenced to eighty-five (85) years imprisonment. It is from this judgment and sentence that he appeals.

The facts of this case are not at issue. The appellant broke into the victim’s house by prying open the back door and then took various items from the house. A neighbor reported the incident and the police promptly answered the call. The police then arrested the appellant without incident. At trial, the State introduced evidence of appellant’s seven prior convictions and put on evidence that connected him to the crime. The appellant took the stand and admitted that he committed the burglary and also admitted committing seven other felonies.

In his first assignment, appellant contends that his sentence was excessive and should be modified. The appellant admits that the sentence is within the limits prescribed by statute.

This Court will not modify a sentence imposed by the lower court unless that sentence is so excessive that it shocks the conscience of this Court. See Watkins v. State, 717 P.2d 1159 (Okl.Cr.1986). This sentence, being within the statutory limits set by the Legislature, does not shock the conscience of this Court. Appellant’s first assignment is without merit.

Appellant’s second assignment contends that a statement made by one of the prosecution’s witnesses, a police officer, about appellant’s attempted escape, was an evi-dentiary harpoon.

We have held that a statement is not an evidentiary harpoon unless it is a voluntary statement made by a police officer and is made to prejudice the defendant’s rights and in fact does prejudice the defendant’s rights. See McGowen v. State, 662 P.2d 1389 (Okl.Cr.1983).

In the case at bar, the statement was made in response to a question about a second set of book-in pictures. There was clearly no prejudice shown since the appellant admitted his guilt and former convictions. We therefore find appellant’s second and final assignment to be without merit.

The judgment and sentence is AFFIRMED.

BRETT, P.J., concurs. PARKS, J., concurs in part/dissents in part.