TAYLOR v. STATE

TAYLOR v. STATE
2002 OK CR 13
45 P.3d 103
73 OBJ 926
Case Number: F-2000-1469
Decided: 03/26/2002
Mandate Issued: 05/01/2002
BRENT C. TAYLOR, Appellant -vs- STATE OF OKLAHOMA, Appellee

[45 P.3d 104]

SUMMARY OPINION

CHAPEL, JUDGE:

 ¶1 Brent C. Taylor was tried by jury and convicted on Count I: Attempted First Degree Co-Joint Robbery, in violation of

¶2 Taylor raises the following propositions of error:

I. The trial court erred when it failed to give an instruction on the lesser-included offenses of second degree robbery or larceny.

II. The trial court improperly instructed the jury of the sentence to be imposed for first degree co-joint robbery.

III. Mr. Taylor was denied a fair trial because of the egregious conduct of the prosecutor.

IV. The trial court erred by failing to determine restitution with in a reasonable certainty, and by imposing restitution for alleged damages that were not resulting from the offense of the convictions.

V. The sentence imposed was excessive.

VI. Appellant's purported statement was improperly admitted into evidence because it is not clear that the police ceased their interrogation after Appellant invoked his right to counsel. It follows that the introduction of Appellant's statement violated his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7, 20, and 21 of the Oklahoma Constitution.

¶3 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that trial error warrants modification of Taylor's sentence with respect to each criminal count. We further remand the case for an evidentiary hearing at which the trial court may receive evidence on the appropriate amount of restitution. [45 P.3d 105]

¶4 We find in Proposition I that the trial court properly instructed the jury because the evidence did not support an instruction on the lesser-included offenses of second degree robbery or larceny.

¶5 We find in Proposition IV that the trial court erred in its determination of the restitution amount with respect to Dr. Carlin's claim of lost wages. Included in the restitution amount was a portion of Dr. Carlin's claim for $1,600.00 in lost wages for two days of work she missed in order to testify against Taylor in court. The trial court ordered Taylor to pay one-half of this amount and assessed his co-defendant the other half. The trial court may order restitution "if the extent of damages to the victim is determinable with reasonable certainty."

¶6 Taylor also asserts that his conduct was not the proximate cause of Dr. Carlin's lost wages.

Decision

¶7 The Judgment of the trial court is AFFIRMED and the Sentences are hereby MODIFIED to five (5) years imprisonment each on Count I, Count II, and Count III; with the sentence on Counts I and II to run concurrently, and the sentence on Count III to run consecutive to Count II. The case is REMANDED for an evidentiary hearing on the appropriate amount of restitution.

ATTORNEYS AT TRIAL

CHARLES HOLDSTOCK
1901 CLASSEN BLVD., SUITE 110
OKLAHOMA CITY, OKLAHOMA 73106
ATTORNEY FOR DEFENDANT

STEPHEN DEUTSCH
DEENA TYLER
ASSISTANT DISTRICT ATTORNEYS
OKLAHOMA COUNTY DISTRICT
ATTORNEY'S OFFICE
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, Oklahoma 73102
ATTORNEYS FOR THE STATE

ATTORNEYS ON APPEAL

CHARLES HOLDSTOCK
1901 CLASSEN BLVD., SUITE 110
OKLAHOMA CITY, OKLAHOMA 73106
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
WILLIAM R. HOLMES
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BULDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, J.

FOOTNOTES