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Charles Earl Lindsay v. State,
No. F-2005-252 (Okl.Cr., August 30, 2006) (unpublished): Robbery: Lindsay was convicted of Robbery with an Imitation Firearm AFCF by approaching a woman in a parking lot and clocking her with a fake gun, causing her to fall down whereupon he stole her purse and ran. He was sentenced to 40 years. The Court found three errors in the case: 1) The State failed to prove use of the firearm because the victim never saw the firearm or was in fear of a firearm; rather, she was hit with it from behind; 2) improper extra-judicial identification evidence when a police officer testified that the victim picked Lindsay out of a line-up; and 3) error in failing to instruct the jury on the applicability of the 85% rule. The relief fashioned by the Court was to modify the sentence to 20 years rather than reverse for a new trial, which I find odd since the Court held as a matter of law that Lindsay was not guilty of the crime for which he was convicted. NOTE: this appears to be an issue of first impression in Robbery with an Imitation Firearm cases. The State argued that Lindsay "used" the firearm in the robbery by hitting the victim with it; but the Court appears to hold that the firearm must be seen by the victim and cause fear.
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