Debra Gorrell v The State Of Oklahoma

F-2000-483

Filed: Dec. 3, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Debra Gorrell appealed her conviction for several drug-related crimes. Conviction and sentence included fifteen years for one charge and varying sentences for others. Judge Lile dissented on part of the decision.

Decision

The Judgments and Sentences of the trial court in Murray County District Court Case Nos. CF-99-193, 194, 196 and 197 are AFFIRMED. The Judgment and Sentence in Murray County District Court Case No. CF-99-195 is REVERSED AND REMANDED for a new trial.

Issues

• Was there error in admitting evidence of other crimes from 1997 during the trial for offenses committed in 1999?
• Did the trial court violate the statutory prohibition against multiple punishment for one criminal course of conduct?
• Was the statute for Endeavoring to Manufacture Methamphetamine unconstitutional and did it subject the Appellant to double jeopardy?
• Did the State fail to prove the elements of unlawful possession of methamphetamine in the presence of a child under the age of 12?
• Was the testimony of witnesses adequately corroborated to support the crime of endeavoring to manufacture methamphetamine?
• Was there fundamental error due to failure to instruct the jury correctly on essential and material elements of the charged crimes?
• Did the evidence sufficiently support the conviction for possession of marijuana on November 9, 1999?
• Did the court err in the punishment phase by using the general habitual offenders statute instead of the uniform controlled dangerous substance act?
• Did the trial court abuse its discretion by selecting the sentence enhancements rather than allowing the district attorney to do so and refusing to run the sentences concurrently as recommended by the jury?

Findings

• Any error in the admission of other crimes evidence was harmless beyond a reasonable doubt.
• Neither 21 O.S.1991, § 11 nor double jeopardy were violated for any of Gorrell's convictions.
• The Endeavoring to Manufacture Controlled Substances statute is constitutional.
• There was sufficient evidence for a rational trier of fact to find that the methamphetamine sale occurred in the presence of a child under 12.
• The accomplices' testimony was sufficiently corroborated and the evidence sufficient to support Gorrell's conviction for Endeavoring to Manufacture Methamphetamine.
• The jury was improperly instructed on Maintaining a Dwelling for the Use or Sale of Drugs.
• The evidence was sufficient to support Gorrell's conviction for Possession of Marijuana.
• Gorrell's sentence was properly enhanced pursuant to 21 O.S. 1991, § 51.
• The trial court did not abuse its discretion in ordering Gorrell's sentences in Case Nos. CF-99-196 and 197 to be served consecutively to her sentences in Case Nos. CF-99-193, 194 and 195.
• The Judgment and Sentence in Murray County District Court Case No. CF-99-195 is REVERSED AND REMANDED for a new trial.
• The Judgments and Sentences of the trial court in Murray County District Court Case Nos. CF-99-193, 194, 196 and 197 are AFFIRMED.

F-2000-483

Dec. 3, 2001

Debra Gorrell

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Debra Gorrell was tried by jury and convicted of Unlawful Possession of Methamphetamine with Intent to Distribute in the Presence of a Child in violation of 63 O.S.Supp.1999, § 2-402; Conspiracy to Possess and Distribute Methamphetamine in violation of 63 O.S.1991, § 2-408; Maintaining a Dwelling House for the Use or Sale of Drugs in violation of 63 O.S.Supp. 1999, § 2-404; Endeavoring to Manufacture Methamphetamine in violation of 63 O.S.1991, § 2-408; and Possession of Marijuana in violation of 63 O.S.Supp. 1999, § 2-402 in Murray County Case Nos. CF-99-193, 194, 195, 196, and 197, respectively. The Honorable John H. Scaggs sentenced Gorrell to fifteen (15) years imprisonment in Case No. CF-99-193, fifteen (15) years imprisonment in Case No. CF-99-194; ten (10) years imprisonment in Case No. CF-99-195; twenty (20) years imprisonment in Case No. CF-99-196; and six (6) months imprisonment in Case No. CF-99-197. The trial court ordered the sentences in CF-99-193, 194 and 195 to be served concurrently and the sentences in CF-99-196 and 197 to be served concurrently but consecutively to the sentences in CF-99-193, 194 and 195.

Gorrell has perfected her appeal of these convictions. Gorrell raises the following Propositions of Error:

I. Court erred in admitting evidence of other crimes going back to 1997, despite the fact that the defendant was on trial for offense allegedly committed in 1999 and failed to explain the meaning of the terms or which exception of the five (5) the court ruled on for admission.

II. Trial court violated 21 Okla. Stat. § 11 statutory prohibition against multiple punishment for one criminal course of conduct.

III. Title 63 Okla. Stat. § 2-408 Endeavoring to Manufacture is unconstitutional and subjected Appellant to Double Jeopardy.

IV. The State failed to prove the elements of unlawful possession of methamphetamine in the presence of a child under the age of 12.

V. The testimony of Charles Dion Roller and Wade Allen Edwards was not corroborated and should be disregarded; the State failed to prove the crime of endeavoring to manufacture methamphetamine.

VI. Failure to instruct jury correctly on essential and material elements of crime charged in the guilty stage and required to be proven by competent evidence is fundamental error if omission is necessary to what jury had to consider in order to convict.

VII. The State did not prove Appellant had possession of marijuana on November 9, 1999.

VIII. The Court erred in the punishment phase by instructing under the general habitual offenders statute rather than under uniform controlled dangerous substance act.

IX. The trial court abused its discretion by selecting the enhancement rather than the district attorney and refusal to run the sentences concurrently as suggested by the jury.

After thorough consideration of the entire record before us on appeal, including the original records, transcripts, briefs, and exhibits of the parties, we determine that reversal is required for Gorrell’s conviction for Maintaining a Dwelling House for the Use or Sale of Drugs in Murray County Case No. CF-99-195. We affirm the remaining convictions.

We find in Proposition I that any error in the admission of other crimes evidence was harmless beyond a reasonable doubt. We find in Proposition II that neither 21 O.S.1991, § 11 nor double jeopardy were violated for any of Gorrell’s convictions because both the requisite elements for and evidence to prove each of these crimes was separate and distinct. We find in Proposition III that the Endeavoring to Manufacture Controlled Substances statute is constitutional. We find in Proposition IV that there was sufficient evidence for a rational trier of fact to find that the methamphetamine sale occurred in the presence of a child under 12. We find in Proposition V that the accomplices’ testimony was sufficiently corroborated and the evidence sufficient to support Gorrell’s conviction for Endeavoring to Manufacture Methamphetamine. We find in Proposition VI that the jury was improperly instructed on Maintaining a Dwelling for the Use or Sale of Drugs. We find in Proposition VII that the evidence was sufficient to support Gorrell’s conviction for Possession of Marijuana. We find in Proposition VIII that Gorrell’s sentence was properly enhanced pursuant to 21 O.S. 1991, § 51. We find in Proposition IX that the trial court did not abuse its discretion in ordering Gorrell’s sentences in Case Nos. CF-99-196 and 197 to be served consecutively to her sentences in Case Nos. CF-99-193, 194 and 195.

Decision

The Judgments and Sentences of the trial court in Murray County District Court Case Nos. CF-99-193, 194, 196 and 197 are AFFIRMED. The Judgment and Sentence in Murray County District Court Case No. CF-99-195 is REVERSED AND REMANDED for a new trial.

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Footnotes:

1. 63 O.S.Supp.1999, § 2-402
2. 63 O.S.1991, § 2-408
3. 63 D.S.Supp. 1999, § 2-404
4. 21 Okla. Stat. § 11
5. 63 Okla. Stat. § 2-408
6. 12 O.S.1991, 2404
7. 21 O.S.1991, § 51
8. Childers U. City of Tulsa, 658 P.2d 497 (Okl.Cr.1983)
9. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985)
10. Meeks v. State, 872 P.2d 936, 939 (1994)
11. Novey v. State, 709 P.2d 696, 699 (Okl.Cr. 1985)
12. Riley v. State, 947 P.2d 530, 534 (Okl. Cr. 1997)
13. Watkins v. State, 829 P.2d 42 (Okl.Cr.1991)
14. Watkins v. State, 855 P.2d 141 (Okl.Cr. 1992)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 (1999) - Unlawful Possession of Methamphetamine with Intent to Distribute
• Okla. Stat. tit. 63 § 2-408 (1991) - Conspiracy to Possess and Distribute Methamphetamine
• Okla. Stat. tit. 63 § 2-404 (1999) - Maintaining a Dwelling House for the Use or Sale of Drugs
• Okla. Stat. tit. 21 § 11 (1991) - Statutory Prohibition Against Multiple Punishment
• Okla. Stat. tit. 21 § 51 (1991) - Enhancement for Prior Felony Convictions

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:

• Meeks v. State, 872 P.2d 936, 938 (Okl.Cr.1994)
• Watkins v. State, 829 P.2d 42 (Okl.Cr.1991)
• Watkins v. State, 855 P.2d 141 (Okl.Cr. 1992)
• Childers U. City of Tulsa, 658 P.2d 497 (Okl.Cr.1983)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985)
• Novey v. State, 709 P.2d 696, 699 (Okl.Cr. 1985)
• Riley v. State, 947 P.2d 530, 534 (Okl. Cr. 1997)