John Henry Throckmorton v State Of Oklahoma

F-2001-49

Filed: Jan. 7, 2002

Not for publication

Prevailing Party: State of Oklahoma

Summary

John Henry Throckmorton appealed his conviction for manufacturing and possessing methamphetamine. The court upheld his conviction for manufacturing but reversed the conviction for possession. Judge Lile dissented.

Decision

The Judgment and Sentence in Count I is AFFIRMED, the Judgment and Sentence in Count IV is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• was there a violation of the statutory prohibition against double punishment for the convictions of both Manufacture and Unlawful Possession of Methamphetamine?
• did the evidence used to convict Appellant of possession overlap with the evidence used for manufacturing?
• is possession required in order to commit the crime of manufacturing methamphetamine?

Findings

• The court erred in affirming the conviction for manufacturing methamphetamine.
• The conviction for unlawful possession of methamphetamine was reversed and remanded with instructions to dismiss.

F-2001-49

Jan. 7, 2002

John Henry Throckmorton

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant John Henry Throckmorton was tried by jury for Manufacturing a Controlled Dangerous Substance (Count I) (63 O.S.1991, § 2-401(F)), Maintaining a Place Resorted to by Users of Controlled Drugs (Count II) (63 O.S.1991, § 2-404(6)), and Unlawful Possession of a Controlled Drug (Count IV) (63 O.S.1991, § 2-402(B-1), all counts After Former Conviction of one Felony, in Case No. CF-2000-75 in the District Court of Beckham County. The jury returned guilty verdicts in Counts I and IV. Appellant was found not guilty in Count II. The jury recommended as punishment twenty (20) years imprisonment in Count I and ten (10) years imprisonment in Count IV. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following proposition of error in support of his appeal:

I. Conviction of both Manufacture and Simultaneous Possession of Methamphetamine violated the statutory prohibition against double punishment.

After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that reversal of Count I is not warranted under the law and the evidence. However, Appellant’s proposition has merit as to Count IV, due to the facts of this case. In Appellant’s sole proposition of error we find Appellant’s conviction for both manufacturing methamphetamine and possessing methamphetamine violate the statutory prohibition against double punishment. 21 O.S.1991, § 11; Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995). Appellant’s conviction for possession was based upon the same evidence used to convict him of manufacturing, i.e., the methamphetamine and precursor substances gathered from the drug lab. Moreover, the crime of manufacturing cannot be accomplished without the act of possession because possession is required in order to produce, prepare, propagate, compound, or process methamphetamine. See 63 O.S.Supp.1995, § 20101(9)(defining the term manufacture); Barton v. State, 26 Okl.Cr. 150, 222 P. 1019, 1020 (1924) (one cannot manufacture whisky illegally without at the same time having illegal possession of it.) Accordingly, Appellant’s conviction in Count IV, possession of methamphetamine is reversed and remanded with instructions to dismiss.

DECISION

The Judgment and Sentence in Count I is AFFIRMED, the Judgment and Sentence in Count IV is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

APPEAL FROM THE DISTRICT COURT OF BECKHAM COUNTY
THE HONORABLE JOE L. JACKSON, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL
LARRY JORDAN
C. KELLEY EISENBERG
1623 CROSS CENTER DRIVE
P.O. BOX 313
NORMAN, OK 73019
MANGUM, OK 73554
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL
KIMBERLY D. HEINZE
COUNSEL FOR APPELLANT

RICHARD L. DUGGER
W.A. DREW EDMONDSON
DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA

R.J. WARREN
DIANE L. SLAYTON
ASSISTANT DISTRICT ATTORNEY
ASSISTANT ATTORNEY GENERAL
BECKHAM COUNTY COURTHOUSE
112 STATE CAPITOL
SAYRE, OK 73662
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, P.J. JOHNSON, J.: CONCUR CHAPEL, J.: CONCUR STRUBHAR, J.: CONCUR LILE, J.: CONCUR

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Footnotes:

1. 63 O.S.1991, § 2-401(F)
2. 63 O.S.1991, § 2-404(6)
3. 63 O.S.1991, § 2-402(B-1)
4. 21 O.S.1991, § 11
5. 63 O.S.Supp.1995, § 20101(9)
6. Barton v. State, 26 Okl.Cr. 150, 222 P. 1019, 1020 (1924)
7. Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(F) - Manufacturing a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-404(6) - Maintaining a Place Resorted to by Users of Controlled Drugs
• Okla. Stat. tit. 63 § 2-402(B-1) - Unlawful Possession of a Controlled Drug
• Okla. Stat. tit. 21 § 11 - Double Punishment Prohibition
• Okla. Stat. tit. 63 § 2-101(9) - Definition of Manufacture

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:

• Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995)
• Barton v. State, 26 Okl.Cr. 150, 222 P. 1019, 1020 (1924)