Oklahoma provides an additional level of protection for defendants under Okla. Stat. 21 § 11 (2019). The current form includes amendments regarding enhanced sentencing and removed language regarding traffic tickets; however, the Legislature’s purpose for the statute in 1998 remains in full force and effect. The crux of this statute prohibits the court from punishing any criminal act or omission under more than one section of law, and more importantly, an acquittal under one section bars prosecution under another section of law. This topic issues consistently arises on appeals where the Court of Criminal Appeals reverses and remands to the trial courts to dismiss. This article is an attempt to help both sides of the criminal justice system better understand the law and correct these errors prior to trials and appeals.
Many times, when I raise this issue on demurrer at preliminary hearings, the State argues that only applies to punishment and so the magistrate judge leaves it to the district court to handle. It is not just a sentencing issue; it is also not a strict double jeopardy issue. The Section 11 analysis complements the double jeopardy analysis and traditional double jeopardy analysis is unnecessary. Mooney v. State, 1999 OK CR 34, ¶ 14, 990 P.2d 875, 882-883. Further, the proper analysis requires the court to examine the relationship of the crimes and if it is one act, unless the Legislature expressly allows an additional crime, it prohibits duplicative prosecutions. Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126; see also Sanders v. State, 2015 OK CR 11, 358 P.3d 280.
The Supreme Court specifically addressed the issue that concurrent sentences do not cure a double jeopardy violation in Ball v. United States, 470 U.S. 857 (1985). In that case, the Defendant was charged with possession of a firearm after a felony conviction under 922(h) and under 1202(a) and the same elements test from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932). The trial court ran the two sentences concurrently, but the Supreme Court held that a second conviction is an impermissible punishment because there are adverse collateral consequences to a conviction. Further, the Court of Criminal Appeals followed the same logic in Kemp v. State, F-2012-622, unpublished opinion, and found that both convictions for felony murder and burglary in the first degree cannot stand and vacated the burglary conviction, even though the counts were running concurrently.
The Court has consistently reversed duplicative convictions for the same act or omission. One of the seminal cases on Section 11 is Hale v. State, 1995 OK CR 7, 888 P.2d 1027, where the defendant was convicted of rape in the first degree and incest for the same act of intercourse with his sister. The Court held that
§11 provides a clear legislative statement of intent to be used where a defendant has received multiple punishments in a single trial for offenses arising from the same conduct. If a single criminal act gives rise to offenses which are…a means to another ultimate objective…or are incidents or facets of some other offense, that conduct may not be punished under more than one statute.
The Court has held that a felon in possession of a firearm is a status crime and generally would be separate and distinct from later criminal acts with the firearm. Frazier v. State, 2020 OK CR 7 ¶ 9 (citing Sanders, 2015 OK CR 11, 1 7, 358 P.3d at 283-84). Further, in Cato v. State, F-2019-82, unpublished opinion, the State charged the defendant with felon in possession of firearm and possession of a firearm during the commission of a felony, but the Court reversed the felon in possession part because the State presented no evidence of a break in time between any of the acts and all happened as a continuous stream of events. See Frazier, at ¶ 10.
The Court has repeatedly held that possession of multiple controlled dangerous substances, whether personal or trafficking weight, within the same “container” can only be charged one time. Lewis v. State, 2006 OK CR 48, 150 P.3d 1060; Watkins v. State, 1992 OK CR 34, 855 P.2d 141; Cox v. State, F-2014-524, unpublished opinion; Jackson v. State, F-2015-713, unpublished opinion; Kitchens v. State, F-2014-524, unpublished opinion, (bag of methamphetamine and tobacco can with marijuana both found in a dresser and court found the “container” was the dresser and reversed the marijuana conviction). The Court further found that a vehicle was also one “container” for purposes of Section 11 analysis and dismissed two counts when three types of controlled dangerous substances were in one vehicle. McKinney v. State, F-2013-812, unpublished opinion.
The Court follows the same reasoning regarding other kinds of illegal possession, in a case where the defendant was charged with seven items of counterfeit drivers’ licenses found in two different containers, the Court reversed and remanded with instructions to dismiss five counts. The Court even reversed and remanded with instructions to dismiss ninety-one counts of child pornography because it violated Section 11. The State’s theory was that they could charge eighty-eight counts for each individual image and twelve counts for each video. The Court reasoned that the evidence showed nine storage devices and that the State could only charge nine counts for those devices. Brown v. State, 2008 OK CR 3, 177 P.3d 577.
When police conducted an undercover drug buy with a Defendant and he gave cocaine for $20, the State charged him with distribution of illegal drugs and acquiring drug proceeds. The Court reversed the drug proceeds count because it was only one drug sale so he could not be convicted for both crimes under § 11. Mathues v. State, 1996 OK CR 29, 925 P.2d 64. When a defendant was charged with robbery with a firearm and use of a firearm during the commission of a felony, the Court reversed the firearm count because it was the same act and proof of the firearm was required for the robbery conviction. In that same case, the Court also reversed a possession of stolen vehicle case when he was convicted of larceny of an automobile, and concealing stolen property when he was convicted of robbery. Hammon v. State, 1995 OK CR 33, 898 P.2d 1287.
In Barnard v. State, 2012 OK CR 15, 290 P.3d 759, the Court found a conviction for lewd acts or proposal to a child by using a computer and use of a computer system or network for purposes of committing a felony violated § 11. The Court also reversed a lewd molestation count when the defendant was also convicted of rape in the first degree since the looking upon the child and raping the child was one incident or continuous act. Polk v. State, C-2010-765, unpublished opinion. The State cannot file child sexual abuse against a parent or guardian as well as the individual sex crimes for the same acts. Stewart v. State, F-2010-615, unpublished opinion. The Court has also considered the passage of time in the context of rape cases when the defendant was charged with three separate counts of rape for the brief interruption to lock the door and no significant distance between the acts. Umoren v. State, F-1999-1225, unpublished opinion. A defendant cannot be charged with kidnapping and a sex offense if the purpose of the confinement is to achieve the rape or sodomy. See Scott v. State, F-2001-998, unpublished opinion.
When looking at crimes committed when dealing with the police, the Court found that obstruction and eluding a police officer when the defendant only fled one time cannot be punished under separate statutes, even when the defendant flees in a car and flees from a vehicle. Tate v. State, F-2011-460, unpublished opinion. The State also cannot convict a defendant of eluding plus additional traffic violations, such as failure to stop at a stop sign or running a roadblock that is part of the eluding episode. See Strickland v. State, F-2007-66, unpublished opinion; Carroll v. State, F-2004-1182, unpublished opinion.
The Court also examined assault and battery on a police officer and resisting an officer and found that when the kicking and struggling, was “part and parcel” of the resisting arrest. Id. The Court relied on Ajeani v. State, 1980 OK CR 29, 610 P.2d 820, in which the defendant was charged with several misdemeanors in separate cases with resisting arrest charged first for breaking away and struggling with the officer that led to the defendant punching the officer in the face. Because of the battery, the State charged a second count, but the court found that was a single, uninterrupted act of resisting an officer. Id.
When the State charged a defendant with three counts of assault and battery with a dangerous weapon, one count of using a vehicle to discharge a firearm, and one count of possession of a firearm while on probation, the Court sent the case back to the trial court to elect to proceed on counts one through three or count four. The Court allowed count five because the defendant had to have possessed the gun on probation prior to the shooting and was a distinct act. Brink v. State, 2021 OK CR 1, 481 P.3d 1267.
The Court reversed three counts when the State charged and convicted the defendant of assault and battery with a dangerous weapon and domestic abuse for the same actions against the same victim. Woodfork v. State, F-2002-532, unpublished opinion. In Jennings v. State, F-2015-187, unpublished opinion, the State charged domestic abuse by strangulation and domestic abuse resulting great bodily injury. The Court applied the rule from Weatherly v. State, 1987 OK CR 28, 733 P.2d 1331, which examines whether the defendant delivered multiple blows within an uninterrupted or unintermittent time or whether a significant time gap separated the attacks. In Jennings, the court found that when the defendant was strangling the victim with one hand while striking with the other hand, it was a single act, and the court could only punish under one statute. In Smith v. State, F-2017-274, unpublished opinion, the Court reversed the crime with the lesser punishment when the jury convicted the defendant of both maiming and assault and battery with a dangerous weapon for the same act.
The State cannot convict a defendant for felony murder and the underlying felony as they merge and violate the Double Jeopardy Clause of the Fifth Amendment. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Perry v. State, 1993 OK CR 5, 853 P.2d 198 (holding conviction for both felony murder and the underlying felony violates double jeopardy); Bethel v. State, F-2014-336, unpublished opinion. If charged with misdemeanor manslaughter for driving under the influence cannot also allow a conviction for driving under the influence because it was one act. Thompson v. State, 2018 OK CR 5, 419 P.3d 261; Hayes v. State, F-18-175, unpublished opinion.
In a recently decided case, the State filed three counts of murder in the second degree, three counts of leaving the scene of a fatality accident, and four counts of leaving the scene of an accident involving injury. The trial court ran the first three counts consecutively and counts 4-10 concurrently. The Court found that all the leaving the scene counts constituted one act because there was only one accident and reversed and remanded with instructions to dismiss counts 5-10. Townsend v. State, F-2021-897, unpublished opinion.
Finally, all criminal law practitioners and judges should be more cognizant of this law and how it applies to cases charged. The Court of Criminal Appeals’ published and unpublished opinion clearly spell out that Section 11 is an enhanced protection for defendants and these common categories of Section 11 problems still are filed and tried everyday across the State. It is our duty to be study and know these technical violations and try to prevent these errors. Those with volumes of cases, plea deals to get out of jail is common practice, but these extra counts and/or convictions can have long-term detrimental consequences and should take the extra step of eliminating unnecessary and unlawful counts.
Previously published in the Criminal Law Section Q & A