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Kincannon v. State10/23/1975
The opinion of the court was delivered by: BUSSEY, Judge.
Appellant, Kenny Bond Kincannon, hereinafter referred to as defendant, entered a plea of guilty in the District Court, Stephens County, Case No. CRF-74-27, to the offense of Second Degree Burglary, in violation of 21 O.S. 1971 § 1435 [21-1435], on May 24, 1974, and was thereupon sentenced to imprisonment for a term of five (5) years, which sentence was suspended upon probation. A hearing upon an application to revoke the suspension of said sentence for violation of the conditions thereof was conducted before that court on January 28, 1975, and thereupon granted. From the revocation order of the trial court, the defendant has perfected a timely appeal to this Court.
The State's first witness, Officer Charles Turner of the Duncan Police Department, testified that on the 4th day of December, 1974, at 10:00 p.m., he arrived at the scene of an accident where he found the defendant's car overturned. Defendant's car had struck a bicycle and injured its rider. Officer Turner testified that he observed acceleration marks at the scene of the accident and could smell alcohol on the defendant's breath, whom he described as "flightly and staggering a little bit." He told the defendant to take a seat in his patrol car and en route to the police station advised him of his Miranda rights. At the station he was given a breathalyzer test by Officer Richard Hart.
Upon cross-examination it was pointed out that the bicycle which was struck by defendant's car was without lights but the highway was lighted by the freeway lights.
The State's next witness, Roger Lee Stephenson, testified that on the evening in question he observed the defendant's car out of his rearview mirror traveling at a fast speed and fishtailing.
The State's next witness, Officer Richard Hart of the Duncan Police Department, testified that on the evening in question he had occasion to give the defendant a breathalyzer test at the request of Officer Turner. He also testified that he had been issued and had in his possession a valid breathalyzer permit as required by law. Officer Hart stated that the test revealed that the alcoholic content in the defendant's blood stream registered a reading of 0.10.
Johnny J. Doty of the Duncan Police Department next testified for the State that he too went to the scene of the accident in question and there saw the defendant, Kincannon, half in and half out of the overturned car. He further testified that after the defendant had removed himself from the car Doty shined a flashlight into the wreckage and at that time discovered a plastic baggie on the roof of the overturned car. This he retrieved and brought to the police station to await further analysis.
The State's final witness, William J. Caveny, testified he was employed by the Oklahoma State Bureau of Investigation as a forensic chemist in charge of the southwestern region of Oklahoma. He testified he was trained in the identification of various types of physical evidence including marihuana. After running certain tests on the substance within the plastic baggie given to him by Officer Doty, Caveny identified the substance as Cannabis Sativa, commonly called marihuana.
The defendant then testified in his own behalf concerning his activities on the day in question. He stated that he cleaned up his car before supper and afterwards took his car to the house of a friend who borrowed the car for about 30 minutes. He then went to the Zodiac Lounge in order to pick up a tool for tipping cues. While at the Zodiac Lounge, he testified, several friends bought
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