Taress Lamont Owens v The State Of Oklahoma

F 2000-862

Filed: Dec. 19, 2001

Not for publication

Prevailing Party: Taress Lamont Owens

Summary

Taress Lamont Owens appealed his conviction for Unlawful Possession of a Controlled Drug with Intent to Distribute. Conviction and sentence of 60 years in prison and an $11,000 fine. Ra Lumpkin dissented.

Decision

The Judgment and Sentence is AFFIRMED but the Eleven Thousand Dollar ($11,000.00) fine is hereby VACATED.

Issues

• Was the trial court correct in denying the motion to suppress the cocaine found in Kecia Howard's apartment?
• Was there sufficient evidence to support the conviction for possession of a controlled substance with intent to distribute?
• Was Mr. Owens unfairly prejudiced by the State's evidence regarding intent to distribute cocaine?
• Should the $11,000.00 fine imposed be modified or vacated due to exceeding the statutory maximum and erroneous jury instructions?
• Did the arrest and charge violate Mr. Owens' Fourth Amendment rights and due process?
• Was Mr. Owens denied his Sixth Amendment right to effective assistance of trial counsel?

Findings

• The trial court did not err in denying the oral motion to suppress the evidence.
• The evidence was sufficient to support Mr. Owens' conviction for possession of a controlled substance with intent to distribute.
• Proposition 3 does not warrant relief.
• The fine imposed by the jury exceeded the maximum amount provided by statute and must be vacated.
• Propositions 5 and 6 do not require relief.
• Appellant has not established that his trial counsel was ineffective.

F 2000-862

Dec. 19, 2001

Taress Lamont Owens

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Taress Lamont Owens was convicted by a jury in Tulsa County District Court, Case No. CF 99-2787, of Unlawful Possession of a Controlled Drug with Intent to Distribute (Count 1), in violation of 63 O.S.Supp. 1995, § 2-401, after former conviction of two or more felonies. Jury trial was held June 19th through 21st, 2000, before the Honorable David L. Peterson, District Judge. The jury set punishment at sixty (60) years imprisonment and imposed a fine of Eleven Thousand ($11,000.00) Dollars. Judgment and Sentence was imposed on June 26, 2000, in accordance with the jury’s verdict. From that Judgment and Sentence, Appellant filed this appeal.

Appellant raised six propositions of error:
1. The trial court should have suppressed the cocaine found in Kecia Howard’s apartment and subsequently admitted as evidence against Mr. Owens;
2. The evidence was insufficient to support Mr. Owens’ conviction on Count 1 – Possession of a Controlled Dangerous Substance (Cocaine) with Intent to Distribute;
3. Mr. Owens was unfairly prejudiced by the State’s irrelevant evidence regarding intent to distribute cocaine;
4. If Mr. Owens’ conviction is affirmed, the $11,000.00 fine must be modified because it exceeds the statutory maximum. Moreover, the fine should be vacated or further modified, because it is based on an erroneous jury instruction;
5. The arrest and charge of Count 1 and Count 2 in Tulsa county District Court case No. CF 99-2787 violated Mr. Owens Fourth Amendment rights and due process; and,
6. Appellant Owens was denied his sixth amendment right to effective assistance of trial counsel and due process of law where the principal allegation and manifestation of inadequate representation is counsel’s failure to file a written motion challenging Mr. Owens arrest and to suppress evidence allegedly obtained in violation of the 4th Amendment.

After thorough consideration of the propositions raised and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification of sentence is required. However, for the reasons set forth below, we find the fine imposed should be vacated.

The trial court did not err in denying the oral motion to suppress as the evidence at trial showed Kecia Howard’s consent was voluntarily given. Lyons v. State, 1989 OK CR 86, I 9, 787 P.2d 460, 464; see also Riggle U. State, 1978 OK CR 121, 1 20, 585 P.2d 1382, 1386; Johnson v. State, 1987 OK CR 8, 9 18, 731 P.2d 993, 1000 (where two persons have equal rights to the use and occupation of the premises, either may give consent to search and evidence discovered may be used against either). Further, the evidence presented at trial was sufficient to support the conviction for possession of controlled substance with the intent to distribute. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. Propositions 1 and 2 are therefore denied.

Proposition 3 does not warrant relief as the officer’s testimony, based upon his training and experience, was relevant as an explanation why he believed the drugs found were held for sale rather than for personal use. 12 O.S.1991, § 2704; Bryan v. State, 1997 OK CR 15, 1 43, 935 P.2d 338, 360; Cannon v. State, 1998 OK CR 28, II 18-19, 961 P.2d 838, 846. Propositions 5 and 6, raised in Appellant’s pro se supplemental brief, also do not require relief. Loman v. State, 1991 OK CR 24, 1 17, 806 P.2d 663, 666 (it is not inappropriate for officers to question suspicious individuals to determine their identity). Officers obtained a valid consent to search, see Proposition 1. Appellant has not carried his burden of establishing his trial counsel was ineffective. Perry v. State, 1993 OK CR 5, T 17, 853 P.2d 198, 203; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2053, 80 L.Ed.2d 674 (1984).

We do find, however, that the claim raised in Proposition 4 has merit. The fine imposed by the jury exceeded the maximum amount provided by statute. Fite v. State, 1993 OK CR 58, I 8, 873 P.2d 293, 295; 21 O.S.Supp.1998, § 64. Further, the jury instruction on punishment incorrectly used mandatory language pertaining to the imposition of a fine. Had the jury been properly instructed that the imposition of a fine was discretionary, we cannot be certain any fine would have been assessed at all. Accordingly, we find the fine assessed by the jury should be VACATED.

DECISION

The Judgment and Sentence is AFFIRMED but the Eleven Thousand Dollar ($11,000.00) fine is hereby VACATED.

APPEARANCES AT TRIAL

BILL BORDERS
ATTORNEY AT LAW
P. O. BOX 2064
TULSA, OKLAHOMA 74101
ATTORNEY FOR THE DEFENDANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEY FOR THE STATE

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Footnotes:

1. 63 O.S.Supp. 1995, § 2-401
2. Lyons v. State, 1989 OK CR 86, I 9, 787 P.2d 460, 464
3. Riggle U. State, 1978 OK CR 121, 1 20, 585 P.2d 1382, 1386
4. Johnson v. State, 1987 OK CR 8, 9 18, 731 P.2d 993, 1000
5. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
6. 12 O.S.1991, § 2704
7. Bryan v. State, 1997 OK CR 15, 1 43, 935 P.2d 338, 360
8. Cannon v. State, 1998 OK CR 28, II 18-19, 961 P.2d 838, 846
9. Loman v. State, 1991 OK CR 24, 1 17, 806 P.2d 663, 666
10. Perry v. State, 1993 OK CR 5, T 17, 853 P.2d 198, 203
11. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2053, 80 L.Ed.2d 674 (1984)
12. Fite v. State, 1993 OK CR 58, I 8, 873 P.2d 293, 295
13. 21 O.S.Supp.1998, § 64
14. 21 O.S.1991, § 64

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 - Unlawful Possession of a Controlled Drug with Intent to Distribute
• Okla. Stat. tit. 21 § 64 (1991) - Fine Provisions
• Okla. Stat. tit. 12 § 2704 - Evidence; Presumptions
• Okla. Stat. tit. 21 § 701.8 (1998) - Punishment for CDS Violations

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 21 U.S.C. § 841 - Controlled Substances; Prohibited Acts
• 21 U.S.C. § 846 - Attempt and Conspiracy
• 21 U.S.C. § 853 - Criminal Forfeiture
• 21 U.S.C. § 952 - Prohibited Acts
• 21 U.S.C. § 960 - Prohibited Acts
• 21 U.S.C. § 963 - Conspiracy

Other citations:

No other rule citations found.

Case citations:

• Lyons v. State, 1989 OK CR 86, I 9, 787 P.2d 460, 464
• Riggle v. State, 1978 OK CR 121, I 20, 585 P.2d 1382, 1386
• Johnson v. State, 1987 OK CR 8, 9 18, 731 P.2d 993, 1000
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Bryan v. State, 1997 OK CR 15, I 43, 935 P.2d 338, 360
• Cannon v. State, 1998 OK CR 28, II 18-19, 961 P.2d 838, 846
• Loman v. State, 1991 OK CR 24, I 17, 806 P.2d 663, 666
• Perry v. State, 1993 OK CR 5, T 17, 853 P.2d 198, 203
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2053, 80 L.Ed.2d 674 (1984)
• Fite v. State, 1993 OK CR 58, I 8, 873 P.2d 293, 295