NOWLIN v. STATE

NOWLIN v. STATE
2001 OK CR 32
34 P.3d 654
72 OBJ 3298
Case Number: F-2000-1379
Decided: 10/29/2001
SHAWN KEITH NOWLIN, Appellant -vs- STATE OF OKLAHOMA, Appellee

OPINION

LILE, JUDGE:

¶1 Appellant, Shawn Keith Nowlin, was convicted at a bench trial of Grand Larceny in violation of

¶2 On July 24, 1999, Appellant stole tools from Steve Vassar in Canadian County. That same day, the tools were transported to Oklahoma City and pawned at E-Z Pawn. Appellant was convicted in Oklahoma County District Court case number CF-99-6168 of Concealing Stolen Property in violation of

¶3 In his sole proposition of error, Appellant claims that his convictions for two separate offenses, which both arose from a single transaction, violated the prohibitions against double punishment and Double Jeopardy.

¶4 Appellant claims that having been convicted of concealing and withholding stolen property in Oklahoma County, he cannot later be convicted of theft of the same property in Canadian County.

¶5 Appellant's claim of a violation of Double Jeopardy rights is resolved by the rule set forth in Blockburger v. United States, 52 S. Ct. 180, 284 U.S. 299, 76 L. Ed. 306. The ruling in Blockburger has been adopted by this Court as the test to be used in reviewing state Double Jeopardy claims. We apply the test to all Double Jeopardy claims, whether arising from multiple punishments in one trial or in multiple trials. Mooney v. State,

¶6 The Blockburger Court cited as controlling the case of Ebeling v. Morgan, 237 U.S. 625, 35 S. Ct. 710, 59 L. Ed. 1151. In Ebeling, the defendant had been convicted of several counts of willfully cutting successive mail bags with the intent to steal. Defendant had cut into several bags, one after the other. The Court determined that Congress had intended to protect each and every mail bag and each was a separate offense. The Court said: "The offense as to each separate bag was complete when that bag was cut, irrespective of any attack upon, or mutilation of, any other bag."

¶7 In Bassett v. State,

¶8 In Bassett, after the cattle were stolen, the defendant marked the cattle with his own brand and removed their ear tags. In the case at hand, after Appellant stole the tools, he then sold them at a distant pawn shop. After the theft was completed, Appellant committed additional acts which constituted an additional crime of concealing stolen property.

¶9 Neither state nor federal constitutional prohibitions against Double Jeopardy preclude these two convictions.

¶10 Title

DECISION

¶11 The Judgment and Sentence of the District Court is AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY
THE HONORABLE EDWARD C. CUNNINGHAM, DISTRICT JUDGE

ATTORNEYS AT TRIAL

ATTORNEYS ON APPEAL

W. MARK HIXSON
ATTORNEY AT LAW
800 WEST MAIN STREET
YUKON, OK 73099
ATTORNEY FOR DEFENDANT

LISBETH L. McCARTY
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

GARY D. McCURDY
ASSISTANT DISTRICT ATTORNEY
303 CHOCTAW AVENUE
EL RENO, OK 73036
ATTORNEY FOR STATE

W. A. DREW EDMONDSON
ATTORNEY GENERAL
KELLYE BATES
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73104-4894
ATTORNEYS FOR APPELLEE

OPINION BY: LILE, J.
LUMPKIN, P.J.: CONCURS
JOHNSON, V.P.J.: CONCURS
CHAPEL, J.: CONCURS IN RESULTS
STRUBHAR, J.: CONCURS

RA

FOOTNOTES

CHAPEL, J., CONCURRING IN RESULTS:

¶1 On a single day, Nowlin stole power tools in Canadian County. He took the tools into Oklahoma County and pawned them. Nowlin was convicted in Oklahoma County of concealing stolen property because he pawned the tools. After that conviction, he was prosecuted for grand larceny in Canadian County. I reluctantly agree with the majority that, technically, the second prosecution does not violate double jeopardy or the statutory prohibition against double punishment. I reach this conclusion for two reasons. First, grand larceny, the later-charged crime, contains elements which differ from those required to prove a person concealed stolen property. Second, I believe Nowlin did not engage in a single course of conduct when he stole the tools then pawned them in a different city.

¶2 However, I would reach a different conclusion if Nowlin had first been convicted of grand larceny. Since the elements of concealing stolen property are included in the proof necessary for grand larceny, I believe any subsequent prosecution for concealing stolen property would violate double jeopardy.

FOOTNOTES