Cooper v. State

*1305OPINION

JOHNSON, Judge:

CECIL COOPER, appellant, was tried by jury for the crimes of Unlawful Delivery of a Controlled Dangerous Substance, Cocaine, Count I, and Unlawful Delivery of Marijuana, Count II, both Counts After Former Conviction of Two or More Felonies, in violation of 63 O.S.Supp.1989, § 2-401, in Case No. CRF-88-220 in the District Court of Pottawatomie County. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at a term not less than fifty (50) years and one (1) day imprisonment on each count, to run consecutively. The trial court sentenced appellant accordingly. From this Judgment and Sentence, appellant appeals.

During the month of November 1987, Detective Ted Askew was working undercover in the Shawnee area on a federal task force investigation on narcotics. On November 12, 1987, at approximately 7:30 p.m., Detective Askew and an informant went to an apartment in Shawnee and attempted to purchase narcotics. While at the apartment complex, a car pulled up and the informant identified the driver as appellant. The informant went to appellant’s car and talked with appellant for a couple of minutes. The informant soon returned, informing Detective Askew that appellant would be able to obtain cocaine. The informant introduced Detective Askew to appellant as “C.D.”. Appellant told Detective Askew that he would get the cocaine within forty-five minutes.

Detective Askew and the informant then left and drove to the location where appellant had told them he would meet them. When appellant arrived at the scheduled time, Detective Askew and the informant got into appellant’s car. Appellant handed Detective Askew four small white packets with the number “25” on them. Detective Askew put the packets in his coat pocket and then asked appellant if he had any “premo”. Appellant replied “No”, but said that he did have some “good smoke”. Detective Askew then purchased four hand-rolled cigarettes from the appellant. Detective Askew and the informant then got out of appellant’s car and left. The packets were eventually tested and determined to be cocaine, while the cigarettes were determined to be marijuana. Appellant was subsequently arrested.

In his first assignment of error, appellant contends that the trial court failed to instruct the jury on entrapment. A defendant is entitled to an instruction on his theory of defense only if it is a tenable theory or finds support in the record. See Hopper v. State, 736 P.2d 538, 541 (Okl.Cr.1987); and Cherbonnier v. State, 751 P.2d 1098, 1099 (Okl.Cr.1988). After reviewing the record before us, we find that the trial court was correct in refusing to give appellant’s requested instruction. This Court has held that the trial court must be satisfied that enough or sufficient facts must have been introduced before the defense is entitled to a defense instruction. The mere fact that defense counsel propounded questions concerning entrapment during cross-examination is by itself insufficient to establish the necessary factual and concrete evidentiary disagreement which requires a jury instruction for its resolution. Anderson v. State, 765 P.2d 1232, 1234 (Okl.Cr.1988). In the present case, it is clear that the State merely afforded the appellant the opportunity to commit the crime, and did not in any manner persuade or pressure him to do so. In fact, while admitting that he did not have any “pre-mo”, appellant willingly offered to sell Detective Askew some “good smoke.” It is not entrapment for police to simply furnish a defendant with an opportunity to commit a crime. Hunnicutt v. State, 755 P.2d 105, 107 (Okl.Cr.1988). We find this assignment of error to be without merit.

In his second assignment of error, appellant asserts that during the second stage enhancement proceeding, the State failed to present sufficient evidence that he had prior felony convictions. During the second stage, the State asserted that appellant had prior convictions for rape. In support, the State introduced certified copies of court records from California and Illinois. However, the Judgment from California *1306listed the name as “Cecil Cooper, Jr.”, while the Judgment from Illinois listed the name as “Cecil Cooper.” Appellant specifically argues that this evidence alone was insufficient to show that the Cecil Cooper on trial was the same person who was convicted of rape in California and Illinois.

In Henager v. State, 716 P.2d 669, 676 (Okl.Cr.1986), this Court stated that the rule in Oklahoma concerning proof of identity is that “identity of name is prima facie evidence of identity of person, and it is sufficient in absence of rebutting testimony.” We further stated that adoption of the position taken by the Tenth Circuit Court of Appeals in Gravatt v. United States, 260 F.2d 498 (10th Cir.1958), which holds that identity of names does not establish defendant’s prior convictions, may at some future point be necessary; we declined to do so in Henager due to the uniqueness of the appellant’s name.

In Gravatt, the court stated that it is common knowledge that in many instances men bear identical names. The Court further acknowledged that it is the State’s burden, and not a defendant’s, to prove that a defendant in the case on trial is one and the same person as the defendant listed on a prior Judgment and Sentence. We agree. Merely introducing the Information and the Judgment and Sentence of a prior trial is not sufficient to discharge the burden resting on the State to take the case to the jury on the question of identity of the two persons. If we do not require more than the introduction of uncorroborated documents, then in effect, we are making the defendant in a second stage prove that he is not such person. The burden of proof is not on the defendant but on the State.

In Williams v. State, 364 P.2d 702, 703 (Okl.Cr.1961), this Court stated,

In regard to proof of former conviction under the Habitual Criminal Act, .. .the identity of name of the defendant and the person previously convicted is prima facie evidence of identity of person, and, in the absence of rebutting testimony, supports a finding of such identity. This will leave the question of identity to be determined by the jury, after a proper instruction has been given, upon a consideration of all surrounding facts and circumstances, such as commonness or unusualness of the name, the character of the former crime or crimes, and the place of its commission.

See also Holt v. State, 551 P.2d 285, 288 (Okl.Cr.1976). Therefore, in addition to identity of name, there must be other facts and circumstances for the jury to consider in reaching their verdict. To the extent Henager is inconsistent with this opinion, it is hereby expressly overruled. In the present case, not only was there a difference in the names, there were absolutely no other facts and circumstances for the jury to consider in making its determination whether appellant was the one and same as the person listed on the Judgment and Sentences. Thus, we find that the State failed to present sufficient evidence of appellant’s prior felony convictions. Pursuant to 22 O.S.Supp.1990, § 1066, see also Scott v. State, 808 P.2d 73 (Okl.Cr.1991), this case is hereby REMANDED to the District Court for resentencing for the crimes of Unlawful Delivery of a Controlled Dangerous Substance and Unlawful Delivery of Marijuana.

Finally, insomuch as this case is being remanded for resentencing, we find appellant’s final assignment of error that his sentences were excessive to be moot.

For the foregoing reasons, this case is REMANDED to the District Court of Pottawatomie County for RESENTENCING.

BRETT and PARKS, JJ., concur. LANE, P.J., concurs in result. LUMPKIN, V.P.J., concurs in part/dissents in part.