The opinion
CHAPEL, Judge,
concurring in part/dissenting in part:
I concur in affirming the judgment and sentence on the Assault and Battery with a Dangerous Weapon counts. However, I would reverse the misdemeanor conviction for violation of a Victim’s Protective Order as it violates the prohibition against double jeopardy found in Article II, Section 21 of the Oklahoma Constitution.
The majority treats the violation of a Victim’s Protective Order as contempt and concludes that jeopardy is not triggered because Taylor has been convicted of two separate crimes with distinctly different elements (i.e. contempt and assault and battery). I agree that violating a Victim’s Protective Order is contemptuous, but since Taylor’s contemptuous conduct is precisely the same conduct which led to his assault and battery convictions I believe jeopardy is triggered.
The U.S. Supreme Court has recently struggled with this issue in U.S. v. Dixon, — U.S.-, 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993). There, the Supreme Court, in a confusing effort to clear up the federal jurisprudence moves away from the “same conduct” test for analyzing the double jeopardy issue and reverts back to the “same elements” test established in Blockburger v. U.S., 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). The majority of this Court also relies on Garrett v. United States, 471 U.S. 773 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985), in analyzing the jeopardy issues before us today. I find the Garrett/Blockburger analysis to be simplistic, too narrow and of little help in analyzing these issues under the Oklahoma Constitution. A test which involves the elements of a crime renders the jeopardy clause virtually meaningless because the Legislature can always add elements. Therefore, notwithstanding Blockburger and other decisions of this court and federal courts to the contrary, I would hold that prosecutions for contempt and another completed crime simultaneously or in successive trials are barred by Art. II, § 21 of the Oklahoma Constitution if the same conduct is used to prove both. In my judgment, the analysis should center on the conduct. If the same conduct is being punished through multiple charges or successive trials, I would hold the jeopardy clause is triggered. I am authorized to state Judge Strubhar joins in this opinion.