Cooper v. State

LUMPKIN, Vice Presiding Judge,

concurring in part/dissenting in part:

I concur with the Court that an entrapment instruction was not warranted under the facts of this case and the judgment rendered should be affirmed. However, I must respectfully dissent to the Court’s determination that the sentence must be vacated and the case remanded for resen-tencing.

The Court seeks to overrule Henager v. State, 716 P.2d 669 (Okl.Cr.1986). However, Henager merely restates the rule in Williams v. State, 364 P.2d 702 (Okl.Cr.1961), upon which the Court relies for its ruling in this case. There was no rebutting evidence in this case and the jury was properly instructed as to the law. Contrary to the Court’s analysis, the State retains the burden of proof under the law stated in Williams and Henager . That burden is not shifted to the defendant. It is analogous to the burden of proof requirement placed on a defendant as to proof that felony offenses “relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location”. We have determined that the proof of this exception provision of 21 O.S.1981, § 51(B), is an affirmative defense which places the burden on the defendant to present evidence to support the objections raised. See Cobb v. State, 773 P.2d 371 (Okl.Cr.1989); Bickerstaff v. State, 669 P.2d 778 (Okl.Cr.1983); and Clonce v. State, 588 P.2d 584 (Okl.Cr.1978).

We have established an objective standard for the admissibility of proof of prior convictions which will allow the State to meet the threshold, prima facie, showing of the identity of the defendant. Once this showing is made it is then a question for the trier of fact, pursuant to correct instructions of the law, to determine if the State has met its burden of proof. The question is not whether we would have made a different decision under the facts presented, but whether there was some evidence from which the jury could have made its decision. We must review this verdict in a light most favorable to the State to determine whether a rational trier of fact could have found the essential elements of the crime charged, i.e. that the defendant and the person named in the prior convictions are the same, beyond a reasonable doubt. Roberts v. State, 715 P.2d 483 (Okl.Cr.1986).

This raises the real question of whether these two names, “Cecil Cooper, Jr.” and “Cecil Cooper”, are sufficiently similar to make the State’s prima facie case of identity as described in Williams and our prior case law which has existed almost from statehood. This Court has addressed a similar problem in an earlier decision and held that a missing middle initial is not *1308 enough to render insufficient the State’s prima facie case of identity. In Dodson v. State, 674 P.2d 57, 59 (Okl.Cr.1984), the State introduced a certified copy of a judgment and sentence showing that a person named “Joe Dodson”, as opposed to “Joe L. Dodson” charged in the information, had been previously convicted of a felony. The defense objected claiming that “Joe Dodson” and “Joe L. Dodson” were not identical names. This Court held that the missing middle initial does not render the document insufficient as prima facie evidence of identity and that the State had met its burden of proof and the question of identity was properly left to the jury. Surely a name identical in all respects except for the missing “Jr.” is no lesser proof than a name absent a middle initial. Our prior jurisprudence, together with the surrounding facts presented in this case, dictate the sentence, as well as the judgement, be affirmed.

Therefore, I respectfully dissent to the vacating of the sentence in this case and would affirm the rule followed in Williams and Henager regarding the proof of identity of prior felony convictions.