Choctaw Nation of Oklahoma,

Plaintiff, vs.

Douglas Dry,
Defendant.

Case Nos.CR-95-01 and CR-95-02

Comes now the Choctaw Nation of Oklahoma ("the Nation"), by and through its prosecuting attorney, Robert L. Rabon in the above styled and numbered cause, responds to the defendants' motion to quash and set aside information as follows:

That defendant has erroneously contended that all of the charges against the defendant Dry arose out of the same struggle. That is simply not true. In the present case, the Nation would agree that the assault and battery and the resisting arrest charges arose out of the same struggle and Ajeani v. State, 610 P.2d 820 (Okla. Crim. App. 1980) would apply. In that respect, the Nation will amend the information. However, the attempt to intimidate a police officer occurred after the struggle and defendant's arrest when the officers were putting the defendant in the tribal police car. At that point, the defendant threatened to kill Hoppy Denison. Thus, the count charging defendant with attempting to intimidate a police officer is not precluded by the holding in Ajeani and should not be quashed by this Court.

Further, any claim that the defendant Dry's resistance was lawful is a defense that is a fact question for the jury and accordingly, not grounds for a motion to quash.

I hereby certify that on the 22nd day of November, 1995, I mailed a true and correct copy of the above Choctaw Nation's Response to Defendant's Motion to Quash and Set Aside Information to Scott Kayla Morrison, P.O. Box 637, Wilburton, OK 74578, with full postage prepaid thereon.