Mark Eugene Smith v The State Of Oklahoma

F-2001-231

Filed: Jun. 12, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Mark Eugene Smith appealed his conviction for attempted manufacture of methamphetamine. The court convicted him on four counts: attempted manufacture of methamphetamine, driving under suspension, possession of a controlled drug, and possession of a precursor substance without a permit. He received a total sentence of 27 years in prison for the first count, with additional time for the others, including a $100,000 fine for the last count. The court agreed to the appeal on one point, saying that the charges for attempted manufacturing and possession of precursor substances were unfair because they stemmed from the same act. Therefore, they dismissed the precursor charge and the fine. The court upheld the convictions and sentences for the other counts. Judge Strubhar dissented.

Decision

The judgments and sentences on Counts I, II, and III are hereby AFFIRMED. The judgment and sentence on Count IV (possession of a precursor substance without a permit) and the accompanying $100,000 drug clean-up fine are hereby REVERSED and DISMISSED.

Issues

• was there sufficient evidence to sustain a conviction for attempted manufacture of methamphetamine as a matter of law?
• did the convictions for attempted manufacture of methamphetamine and possession of a precursor substance violate Oklahoma's prohibition against multiple punishments for a single act?
• was the evidence seized in violation of the Fourth Amendment inadmissible and should it have been ordered suppressed?
• did prosecutorial misconduct inflate the jury's emotions and allow improper considerations to affect their deliberations?
• did the appellant receive constitutionally deficient representation during the second stage of trial?

Findings

• The court erred in affirming the conviction for possession of a precursor substance without a permit.
• The evidence was sufficient to support the conviction for attempted manufacture of methamphetamine.
• The police stop was justified based on reasonable suspicion.
• The prosecutor's argument did not constitute prosecutorial misconduct.

F-2001-231

Jun. 12, 2002

Mark Eugene Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE:

Appellant, Mark Eugene Smith, was tried by jury in the District Court of Tulsa County, Case No. CF-2000-950, and convicted of Attempted Manufacture of Methamphetamine (Count I), in violation of 63 O.S.Supp.1999, § 2-401( (F), Driving under Suspension (Count II), in violation of 47 O.S.Supp. 1993, § 6-303(B), Possession of a Controlled Drug (Count III)¹, after former conviction of one or more felony drug convictions and in violation of 63 S.Supp. 1999, § 2-402, and Possession of a Precursor Substance Without a Permit (Count IV), in violation of 63 Supp. 1999, § 2-328(E). The jury set punishment at twenty-seven (27) years imprisonment on Count I, one (1) year in the Tulsa County jail on Count II, ten (10) years imprisonment on Count III, and five (5) years imprisonment and a $100,000 drug clean-up fine on Count IV. Appellant was also ordered to pay a victim’s assessment of $500.00.

The trial judge ¹ Appellant was charged with Possession of a Controlled Drug with Intent to Distribute, but found guilty of the lesser possession charge. ² The drug clean-up fine was assessed on Count IV pursuant to 63 O.S.1991, § 2-329, but the written judgments incorrectly use the amount $101,570.00 and appear to be saying this 1 ordered Counts I, II, and II to run concurrently, but consecutively to Count IV. Appellant now appeals his convictions and sentences.

Appellant raises the following propositions of error in this appeal:

I. The evidence at trial was insufficient to sustain a conviction for attempted manufacture of methamphetamine as a matter of law;

II. Convictions for attempted manufacture of methamphetamine and possession of a precursor substance are barred by Oklahoma’s prohibition against multiple punishments for a single act;

III. Evidence seized in violation of the Fourth Amendment is inadmissible and should be ordered suppressed;

IV. Prosecutorial misconduct inflamed the jury and allowed improper considerations to affect deliberations; and

V. Appellant received constitutionally deficient representation during the second stage of trial.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find merit in proposition II, requiring that Count IV be reversed and dismissed. With respect to proposition one, we find sufficient evidence of an overt act by Appellant to initiate the process of manufacturing methamphetamine. Hunt U. State, 773 P.2d 375, 376 (Okl.Cr.1989); Spuehler U. State, 709 P.2d 202, 203-204 (Okl.Cr.1985). With respect to proposition three, we find, although there may not have been probable cause to make an arrest, the police officer acted properly in stopping Appellant based upon a reasonable suspicion, grounded in specific and articulable facts, that Appellant was involved in or is wanted in was a costs assessment on all four counts, again incorrectly. ² connection with a completed felony. Coulter U. State, 777 P.2d 1373, 1374 (Okl.Cr. 1989). With respect to proposition four, we find the prosecutor’s argument was within the wide latitude given to both sides to discuss the evidence and make reasonable inferences therefrom. While arguably invoking societal alarm to a slight degree, it did not amount to plain error. Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994). With respect to proposition five, Appellant has failed to show any errors by counsel that were so serious as to deprive Appellant of a fair trial or sentencing proceeding, one with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); 22 O.S.Supp.1999, § 860.1. The application for evidentiary hearing is denied.

With respect to proposition two, we find Appellant’s convictions for attempted manufacturing and possession of precursors violate our statutory protection against double punishment. 21 O.S.Supp.1999, § 11. We find no separate and distinct crimes here, but rather one act of attempted manufacturing, which encompassed the crime of possessing precursors. Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999); Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995).

DECISION

The judgments and sentences on Counts I, II, and III are hereby AFFIRMED. The judgment and sentence on Count IV (possession of a precursor substance without a permit) and the accompanying $100,000 drug clean-up fine are hereby REVERSED and DISMISSED.

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Footnotes:

1. Possession of a Controlled Drug with Intent to Distribute, but found guilty of the lesser possession charge.
2. The "drug clean-up" fine was assessed on Count IV pursuant to Okla. Stat. tit. 63 § 2-329, but the written judgments incorrectly use the amount $101,570.00 and appear to be saying this was a costs assessment on all four counts, again incorrectly.
3. Hunt U. State, 773 P.2d 375, 376 (Okl.Cr.1989); Spuehler U. State, 709 P.2d 202, 203-204 (Okl.Cr.1985).
4. Coulter U. State, 777 P.2d 1373, 1374 (Okl.Cr.1989).
5. Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994).
6. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); 22 O.S.Supp.1999, § 860.1.
7. 21 O.S.Supp.1999, § 11.
8. Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999); Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1999) - Attempted Manufacture of Methamphetamine
• Okla. Stat. tit. 47 § 6-303 (1993) - Driving under Suspension
• Okla. Stat. tit. 63 § 2-402 (1999) - Possession of a Controlled Drug
• Okla. Stat. tit. 63 § 2-328 (1999) - Possession of a Precursor Substance Without a Permit
• Okla. Stat. tit. 63 § 2-329 (1991) - Drug Clean-Up Fine
• Okla. Stat. tit. 22 § 860.1 (1999) - Procedural Code
• Okla. Stat. tit. 21 § 11 (1999) - Double Punishment Prohibition

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:

• Hunt v. State, 773 P.2d 375, 376 (Okl.Cr.1989)
• Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985)
• Coulter v. State, 777 P.2d 1373, 1374 (Okl.Cr.1989)
• Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994)
• Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999)
• Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995)