Martin Roy Romero v The State of Oklahoma

F-2004-268

Filed: Aug. 29, 2005

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Martin Roy Romero appealed his conviction for conspiracy to traffic methamphetamine, trafficking in methamphetamine, and using a minor to distribute methamphetamine. The conviction and sentence included ten years with a $50,000 fine for conspiracy, fifteen years with a $100,000 fine for trafficking, and twenty years with a $250,000 fine for using a minor, which were to be served one after the other. Judge Chapel partly dissented, indicating he would also reverse the conviction for conspiracy.

Decision

The conviction and sentence for count two of the Judgment and Sentence shall be REVERSED and REMANDED with instructions to DISMISS. The remaining counts in the Judgment and Sentence of the District Court shall be AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there prosecutorial misconduct that deprived the appellant of a fair trial?
• Did the appellant's convictions for conspiracy to traffic methamphetamine and for trafficking methamphetamine violate his constitutional and statutory protections against double punishment and double jeopardy?
• Was the state's evidence sufficient to support the conviction for conspiracy?
• Did the appellant's right to be free from double jeopardy and double punishment get violated when he was convicted of both trafficking and using a minor in trafficking, where both convictions arose from a single alleged sale of methamphetamine?

Findings

• the court did not err regarding prosecutorial misconduct and found no plain error
• the convictions for conspiracy to traffic methamphetamine and trafficking in methamphetamine do not constitute double jeopardy or double punishment
• the evidence was sufficient to support the conviction for conspiracy
• the conviction for trafficking in methamphetamine was reversed and remanded with instructions to dismiss due to double punishment concerns with the conviction for using a minor to distribute methamphetamine

F-2004-268

Aug. 29, 2005

Martin Roy Romero

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Martin Roy Romero was tried by jury in the District Court of Stephens County, Case No. CF-99-427, before the Honorable George W. Lindley, District Judge. At the conclusion of the trial, Romero was convicted of, count one, Conspiracy to Traffic in Methamphetamine in violation of 63 O.S.1991, § 2-408, count two, Trafficking in Methamphetamine in violation of 63 O.S.Supp.1999, § 2-415 and, count three, Using a Minor to Distribute Methamphetamine in violation of 63 O.S.Supp. 1999, § 2-401(A)(1). The jury set punishment at ten (10) years and a $50,000 fine, fifteen (15) years and a $100,000 fine, and twenty (20) years and a $250,000 fine, respectively. Judge Lindley sentenced Romero according to the jury verdict, ordering that the sentences be served consecutively.^1 Romero has perfected an appeal of the judgments and sentences to this Court and raises the following propositions of error in support of his appeal:

^1 These crimes were committed on December 22, 1999. Romero was apprehended on September 28, 2003.

1. Prosecutorial misconduct deprived appellant of a fair trial.
2. Under the facts of this case, appellant’s convictions for both conspiracy to traffic methamphetamine and trafficking methamphetamine violated his constitutional and statutory protections against double punishment and double jeopardy.
3. The state’s evidence was insufficient to support the conviction for conspiracy.
4. Appellant’s right to be free from double jeopardy and double punishment was violated when he was convicted of both trafficking and using a minor in trafficking, where both convictions arose from a single alleged sale of methamphetamine.

After thorough consideration of Romero’s propositions of error and the entire record before us on appeal, including the original record, transcripts, and briefs, we have determined that, due to arguments raised in proposition four, count two of the judgment and sentence shall be reversed and remanded with instructions to dismiss; the remainder of the counts should be affirmed.

In proposition one, we find that the evidence comparing the quantity of dosage units of methamphetamine to the population of Stephens County was relevant for the jury’s understanding of a trafficking amount of methamphetamine. Thus, the trial court did not abuse its discretion in allowing the evidence over objection. Robedeaux v. State, 1993 OK CR 57, 866 P.2d 417, 423. We also find that there was no objection to the argument referring to Romero as spreading the plague of methamphetamine and comparing the amount of methamphetamine to the population and area of Stephens County; thus, we review for plain error only. The argument fell within the wide range of proper argument. See Martinez v. State, 1999 OK CR 33, 984 P.2d 813, 825; Marshall v. State, 1998 OK CR 30, 963 P.2d 1, 8.

In proposition two, we find that Romero’s convictions for both conspiracy to traffic methamphetamine and trafficking in methamphetamine do not constitute double jeopardy or double punishment. Littlejohn v. State, 1998 OK CR 75, 989 P.2d 901 (holding conspiracy to commit an unlawful act constitutes an independent crime complete in itself and distinct from the unlawful act).

In proposition three, we find that there was sufficient evidence, viewed in a light most favorable to the state, for any rational trier of fact to have found that the crime of conspiracy to traffic methamphetamine was committed. State v. Davis, 1991 OK CR 123, 823 P.2d 367, 369-70. There was sufficient evidence to show an agreement between Romero and Aurelio Peco Romero to traffic methamphetamine, and the overt act towards the commission of the crime was the delivery of the buyer to Romero by Peco at the determined location.

In proposition four, we find that the convictions for trafficking (count two) and using a minor to traffic methamphetamine (count three) violate the statutory prohibition against double punishment found at 21 O.S.Supp. 1999, § 11. The facts leading to these charges were that the minor had the methamphetamine in his pants at the time of the transaction. The minor handed the methamphetamine to Romero, and then Romero handed the methamphetamine to the buyer. The money was handled in the same manner—from the buyer to Romero, then to the minor.^2 At the conclusion of the trial, the jury was instructed that to be guilty of using a minor to traffic methamphetamine the State must prove these elements: First, knowingly; Second, used the services of a person less than 18 years of age; Third, to distribute; Fourth, two hundred (200) grams or more of a mixture or substance containing a detectable amount of methamphetamine. They were also instructed that the elements of trafficking in methamphetamine were: First, knowingly; Second, distributed; Third, two hundred (200) grams or more of a mixture or substance containing a detectable amount of methamphetamine. Under the facts of this case, the crime of using a minor to traffic methamphetamine could not have been completed without the distribution of the trafficking amount of methamphetamine because there was but one distribution, and it involved the use of a minor. See Peacock v. State, 2002 OK CR 21, ¶ 5, 46 P.3d 713, 714. Consequently, Romero’s conviction for trafficking in methamphetamine must be reversed and remanded with instructions to dismiss.

^2 Romero was charged with using a minor to traffic methamphetamine based on the language of 63 O.S.Supp. 1999, §§ 2-401 and 2-415, and the Information references § 2-401. Section 2-419.1 of Title 63, effective July 1, 1999, also criminalizes this act but provides for a more lenient sentence.

DECISION
The conviction and sentence for count two of the Judgment and Sentence shall be REVERSED and REMANDED with instructions to DISMISS. The remaining counts in the Judgment and Sentence of the District Court shall be AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL
DON J. GUTTERIDGE, JR.
INDIGENT DEFENSE SYSTEM
5900 MOSTELLER DRIVE
OKLAHOMA CITY, OK 73112
ATTORNEY FOR DEFENDANT

JERRY WAYNE HERBERGER
ASSISTANT DISTRICT ATTORNEY
STEPHENS COUNTY
DUNCAN, OK 73533
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL
THOMAS PURCELL
INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
OKLAHOMA ATTORNEY GENERAL
JOHN W. TURNER
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73104
ATTORNEYS FOR APPELLEE

OPINION BY: C. JOHNSON
CHAPEL, P.J.: CONCURS IN PART/DISSENTS IN PART
LUMPKIN, V.P.J.: CONCURS
A. JOHNSON, J.: CONCURS
LEWIS, J.: CONCURS

CHAPEL, PRESIDING JUDGE, CONCURS IN PART/DISSENTS IN PART: I concur in affirming Count Three and I concur in reversing Count Two. However, I would also reverse Count One. Furthermore, I would consolidate this appeal with Case No. F-2004-517 and reconsider the sentencing entrapment issues we decided in Lynch v. State, 66 P.3d 987 (2003).

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Footnotes:

1. These crimes were committed on December 22, 1999. Romero was apprehended on September 28, 2003.
2. Robedeaux v. State, 1993 OK CR 57, 866 P.2d 417, 423.
3. Martinez v. State, 1999 OK CR 33, 984 P.2d 813, 825; Marshall v. State, 1998 OK CR 30, 963 P.2d 1, 8.
4. Littlejohn v. State, 1998 OK CR 75, 989 P.2d 901.
5. State v. Davis, 1991 OK CR 123, 823 P.2d 367, 369-70.
6. Peacock v. State, 2002 OK CR 21, IT 5, 46 P.3d 713, 714.
7. Romero was charged with using a minor to traffic methamphetamine based on the language of 63 O.S.Supp. 1999, 2-401 and 2-415, and the Information references § 2-401. Section 2-419.1 of Title 63, effective July 1, 1999, also criminalizes this act, but provides for a more lenient sentence.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-408 - Conspiracy to Traffic in Methamphetamine
• Okla. Stat. tit. 63 § 2-415 - Trafficking in Methamphetamine
• Okla. Stat. tit. 63 § 2-401 - Using a Minor to Distribute Methamphetamine
• Okla. Stat. tit. 21 § 11 - Double Punishment

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Robedeaux v. State, 1993 OK CR 57, 866 P.2d 417, 423.
• Martinez v. State, 1999 OK CR 33, 984 P.2d 813, 825;
• Marshall v. State, 1998 OK CR 30, 963 P.2d 1, 8.
• Littlejohn v. State, 1998 OK CR 75, 989 P.2d 901.
• State v. Davis, 1991 OK CR 123, 823 P.2d 367, 369-70.
• Peacock v. State, 2002 OK CR 21, IT 5, 46 P.3d 713, 714.
• Lynch v. State, 66 P.3d 987 (2003).