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Irwin v. State

Court of Criminal Appeals of Oklahoma

June 14, 2018

JAMES RICHARD IRWIN, Appellant
v.
STATE OF OKLAHOMA, Appellee.

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

         APPEARANCES AT TRIAL

          TERESSA WILLIAMS ATTORNEY FOR DEFENDANT

          JORDAN CABELKA EVAN WATSON ASST. DISTRICT ATTORNEYS ATTORNEYS FOR STATE

         APPEARANCES ON APPEAL

          RICKI J. WALTERSCHEID ATTORNEY FOR APPELLANT

          MIKE HUNTER ATTORNEY GENERAL ROBERT WHITTAKER ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR APPELLEE

          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 ...


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