Michael Renee Powell v The State Of Oklahoma

F-2000-1304

Filed: Oct. 10, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Michael Renee Powell appealed her conviction for manufacturing illegal drugs and several other drug-related charges. The court decided to reverse and dismiss her conviction for manufacturing drugs due to not enough evidence. The court also confirmed her other convictions and adjusted the sentence for maintaining a place for drugs to a lesser charge. Judge Lumpkin disagreed with dismissing the manufacturing charge, believing there was enough evidence to support it.

Decision

The judgments and sentences on Counts II and IV are hereby AFFIRMED. Appellant's conviction and sentence on Count I, Manufacturing CDS, are hereby REVERSED and DISMISSED. Appellant's conviction on Count III, Maintaining a Place for Keeping and Selling Drugs, is hereby MODIFIED to the misdemeanor version of this same crime, and her sentence on Count III is MODIFIED to a fine of $1,000.00. The sentences on Counts II and IV are ordered to run consecutively, as previously ordered.

Issues

• was there plain reversible error in the trial court's refusal to hold a hearing on the motion to suppress evidence?
• did the evidence seized by the police and presented at trial warrant suppression due to an unsupported search warrant?
• was the evidence presented at trial sufficient to support Appellant's convictions for manufacturing methamphetamine and maintaining a place for keeping or selling drugs?
• did the omission of the essential element of "knowingly or intentionally" from jury instruction number 16 constitute plain reversible error?

Findings

• the trial court did not err in refusing to hold a hearing on the motion to suppress
• the issue regarding the suppression of evidence was waived
• the evidence was sufficient to support convictions for unlawful possession of methamphetamine and unlawful possession of paraphernalia
• the evidence was insufficient to support the conviction for manufacturing CDS, and the conviction was reversed and dismissed
• the conviction for maintaining a place for keeping and selling drugs was modified to the misdemeanor version

F-2000-1304

Oct. 10, 2001

Michael Renee Powell

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

PER CURIAM: Appellant, Michael Renee Powell, was tried by jury in the District Court of Grady County, Case No. CF-98-176, and convicted of Manufacturing CDS (Count I), in violation of 63 O.S.1991, § 2-401(F), Unlawful Possession of Methamphetamine (Count II), in violation of 63 O.S.1991, § 2-402(B)(1), Maintaining a Place for Keeping and Selling Drugs (Count III), in violation of 63 O.S.1991, § 2-404(A)(6), and Unlawful Possession of Paraphernalia (Count IV), in violation of 63 O.S. 1991, § 2-405 (B). The jury set punishment at twenty (20) years imprisonment and a $50,000.00 fine on Count I, ten (10) years imprisonment on Count II, five (5) years imprisonment and a $10,000.00 fine on Count III, and one (1) year in the county jail and a $1,000.00 fine on Count IV. The trial judge sentenced Appellant accordingly and ordered the sentences to run consecutively. Appellant now appeals her convictions and sentences.

Appellant raises the following propositions of error in this appeal:

I. The trial court committed plain reversible error in refusing to allow defense counsel to present and argue a motion to suppress the evidence which resulted in a violation of Appellant’s due process rights under the Sixth and Fourteenth Amendments and protection against unreasonable searches and seizures under the Fourth and Fourteenth Amendments;

II. The evidence seized by the police and presented against Appellant at trial should have been suppressed as the search warrant obtained in this case was not supported by the facts;

III. The evidence presented at trial was insufficient to support Appellant’s convictions for manufacturing methamphetamine and maintaining a place for keeping or selling of drugs; and

IV. Plain reversible error occurred when the essential element of knowingly or intentionally was omitted from jury instruction number 16 defining the offense of maintaining a place where dangerous substances are kept in violation of the due process clauses of the federal and Oklahoma constitution.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we have determined neither reversal nor modification is required with respect to Counts II and IV. However, Appellant’s conviction and sentence with respect to Count I are hereby reversed and dismissed for insufficient evidence and her conviction and sentence with respect to Count III are hereby modified as set forth below.

With respect to proposition one, we find the trial court did not abuse its discretion by refusing to hold a hearing on the motion to suppress. Appellant failed to make a substantial preliminary showing that a false statement was made, so as to require a hearing. See Bishop v. State, 605 P.2d 260, 263 (Oki.Cr.1979); Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978); Simpson v. State, 876 P.2d 690, 693 kl.Cr.1994). With respect to proposition two, we find the issue has been waived based upon proposition one and the record before us. Furthermore, reviewing the totality of the circumstances, we find probable cause existed for the issuance of the search warrant. Langham U. State, 787 P.2d 1279, 1281 (Okl.Cr.1990). Appellant has failed to show errors by counsel that were so serious as to deprive Appellant of a fair and reliable trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

With respect to propositions three and four, we find, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury’s verdict, any rational trier of fact could have found the essential elements of the crimes charged in Counts II and IV beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985). However, using the same test, we find the evidence insufficient with respect to Count I, Manufacturing CDS, as the evidence supported no more than Appellant’s suspicions regarding that crime and do not support aiding and abetting on this count. Furthermore, with respect to Count III, jury instruction sixteen did not include the element of knowingly or intentionally, and 63 O.S.1991, § 2-404(B) specifically requires the jury to find this element in order for Appellant to be convicted of the felony, rather than the misdemeanor, version of this crime.

Considering the entire record before us, we find justice would best be served by modifying Appellant’s conviction and sentence to the misdemeanor version of this crime, as set forth below.

DECISION

The judgments and sentences on Counts II and IV are hereby AFFIRMED. Appellant’s conviction and sentence on Count I, Manufacturing CDS, are hereby REVERSED and DISMISSED. Appellant’s conviction on Count III, Maintaining a Place for Keeping and Selling Drugs, is hereby MODIFIED to the misdemeanor version of this same crime, and her sentence on Count III is MODIFIED to a fine of $1,000.00. The sentences on Counts II and IV are ordered to run consecutively, as previously ordered.

AN APPEAL FROM THE DISTRICT COURT OF GRADY COUNTY

THE HONORABLE OTEKA ALFORD, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

RICHARD WELDON
228 W. CHICKASHA, SUITE 706
CHICKASHA, OKLAHOMA 73018
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL

MICHAEL MCBRIDE
217 N. HARVEY, SUITE 105
OKLAHOMA CITY, OKLAHOMA 73102
COUNSEL FOR APPELLANT

JEREMY STILWELL
W.A. DREW EDMONDSON
ROBERT BEAL
ATTORNEY GENERAL OF OKLAHOMA
BRET BURNS
JENNIFER A. BLAKENEY
ASSISTANT DISTRICT ATTORNEYS
ASSISTANT ATTORNEY GENERAL
P.O. BOX 682
CHICKASHA, OKLAHOMA 73023
COUNSEL FOR THE STATE

OPINION BY: PER CURIAM

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR
STRUBHAR, J.: CONCUR
LILE, J.: CONCUR IN PART/DISSENT IN PART

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Footnotes:

1. 63 O.S.1991, § 2-401(F)
2. 63 O.S.1991, § 2-402(B)(1)
3. 63 O.S.1991, § 2-404(A)(6)
4. 63 O.S.1991, § 2-405(B)
5. Bishop v. State, 605 P.2d 260, 263 (Oki.Cr.1979)
6. Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978)
7. Simpson v. State, 876 P.2d 690, 693 kl.Cr.1994
8. Langham U. State, 787 P.2d 1279, 1281 (Okl.Cr.1990)
9. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
10. Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985)
11. 63 O.S.1991, § 2-404(B)
12. OUJI-CR 2d (2000), § 6-12
13. Ochoa v. State, 963 P.2d 583, 599 (Okl.Cr.1998)
14. Torres v. State, 962 P.2d 3, 15 (Okl.Cr.1998)
15. Douglas v. State, 951 P.2d 651, 672 (Okl.Cr.1997)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1991) - Manufacturing CDS
• Okla. Stat. tit. 63 § 2-402 (1991) - Unlawful Possession of Methamphetamine
• Okla. Stat. tit. 63 § 2-404 (1991) - Maintaining a Place for Keeping and Selling Drugs
• Okla. Stat. tit. 63 § 2-405 (1991) - Unlawful Possession of Paraphernalia

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:

• Bishop v. State, 605 P.2d 260, 263 (Oki.Cr.1979)
• Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978)
• Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994)
• Langham v. State, 787 P.2d 1279, 1281 (Okl.Cr.1990)
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985)
• Ochoa v. State, 963 P.2d 583, 599 (Okl.Cr.1998)
• Torres v. State, 962 P.2d 3, 15 (Okl.Cr.1998)
• Douglas v. State, 951 P.2d 651, 672 (Okl.Cr.1997)