Byrin Carr v The State Of Oklahoma

F-2000-1163

Filed: Sep. 27, 2001

Not for publication

Prevailing Party: Byrin Carr

Summary

Byrin Carr appealed his conviction for unlawful delivery of a controlled dangerous substance (cocaine base). Conviction and sentence were modified to possession of a controlled dangerous substance with a five-year prison term for each count, served consecutively. Judge Chapel dissented.

Decision

We find that in view of the error discussed under Proposition I, the conviction herein should be MODIFIED. Count I is modified to Possession of a Controlled Dangerous Substance within 1,000 feet of a public school in violation of 63 O.S.Supp.1999, § 2-402(B) and (C), and the sentence is MODIFIED to five (5) years imprisonment. Count II is MODIFIED to Possession of a Controlled Dangerous Substance in violation of 63 O.S.Supp. 1999, § 2-402(B), and the sentence is MODIFIED to five (5) years imprisonment. Sentences to be served consecutively.

Issues

• Was there an error in failing to instruct the jury on entrapment as requested by the Appellant?
• Did the trial court abuse its discretion in excluding certain evidence that was deemed not relevant?
• Should the convictions be modified based on the error related to the entrapment instruction?

Findings

• the court should have instructed on Entrapment, requiring modification of the convictions
• the court did not abuse its discretion in excluding the evidence as it was not relevant
• the conviction for Count I should be modified to Possession of a Controlled Dangerous Substance within 1,000 feet of a public school, with a modified sentence of five years imprisonment
• the conviction for Count II should be modified to Possession of a Controlled Dangerous Substance, with a modified sentence of five years imprisonment

F-2000-1163

Sep. 27, 2001

Byrin Carr

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, JUDGE: The Appellant, Byrin Carr, was convicted at jury trial of Count I- Unlawful Delivery of a Controlled Dangerous Substance (Cocaine Base) within 2,000 feet of a public school in violation of 63 O.S.Supp. 1999, § 2-401(B) and (E) and Count II-Unlawful Delivery of a Controlled Dangerous Substance (Cocaine Base) within 2,000 feet of a public housing project in violation of 63 O.S.Supp. 1999 § 2-401(B) and (E) in case number CF-2000-233 in the District Court of Garfield County. The Honorable Richard M. Perry, Associate District Judge, followed the jury’s recommendation and sentenced Appellant to ten (10) year prison sentences on each count and a fine of $10,000 on each count, the sentences to run consecutively. Appellant has perfected his appeal to this court.

With regard to Proposition I, we find that the Court should have instructed, pursuant to Appellant’s request, on Entrapment. The additional evidence in the form of Appellant’s taped statement to Police provided sufficient evidence to warrant entrapment instructions. Tully v. State, 1986 OK CR 185, 730 P.2d 1206. This error requires modification of these convictions. 22 O.S. 1991, § 1066.

With regard to Proposition II, we find that the evidence excluded by the trial court was not relevant. 12 O.S. 1991, § 2401. The court did not abuse its discretion in excluding the evidence. Bias U. State, 1977 OK CR 56, 561 P.2d 523.

DECISION

We find that in view of the error discussed under Proposition I, the conviction herein should be MODIFIED. Count I is modified to Possession of a Controlled Dangerous Substance within 1,000 feet of a public school in violation of 63 O.S.Supp.1999, § 2-402(B) and (C), and the sentence is MODIFIED to five (5) years imprisonment. Count II is MODIFIED to Possession of a Controlled Dangerous Substance in violation of 63 O.S.Supp. 1999, § 2-402(B), and the sentence is MODIFIED to five (5) years imprisonment. Sentences to be served consecutively.

ATTORNEYS AT TRIAL
JAMES L. HANKINS
205 W. MAPLE, SUITE 804
ENID, OK 73701

ATTORNEYS ON APPEAL
S. GAIL GUNNING
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR DEFENDANT

BRYAN SLABOTSKY
W. A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
GARFIELD COUNTY COURTHOUSE
ALECIA A. GEORGE
ENID, OK 73701
ATTORNEY FOR STATE

112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEY GENERAL

OPINION BY: LILE, J.
LUMPKIN, P.J.: CONCURS IN RESULTS
JOHNSON, V.P.J.: CONCURS
CHAPEL, J.: DISSENTS
STRUBHAR, J.: RECUSES

CHAPEL, JUDGE, DISSENTING: I agree with the analysis concerning the error in failing to instruct on entrapment. However, I cannot agree that modification of the sentence is the proper remedy to correct the error. I would reverse and remand for a new trial.

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Footnotes:

1. 63 O.S.Supp. 1999, § 2-401(B) and (E)
2. 63 O.S.Supp. 1999, § 2-401(B) and (E)
3. Tully v. State, 1986 OK CR 185, 730 P.2d 1206
4. 22 O.S. 1991, § 1066
5. 12 O.S. 1991, § 2401
6. Bias U. State, 1977 OK CR 56, 561 P.2d 523
7. 63 O.S.Supp. 1999, § 2-402(B) and (C)
8. 63 O.S.Supp. 1999, § 2-402(B)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1999) - Unlawful Delivery of a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 1066 (1991) - Modification of Conviction
• Okla. Stat. tit. 12 § 2401 (1991) - Relevance of Evidence
• Okla. Stat. tit. 63 § 2-402 (1999) - Possession of a Controlled Dangerous Substance

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:

• Tully v. State, 1986 OK CR 185, 730 P.2d 1206
• Bias U. State, 1977 OK CR 56, 561 P.2d 523