Roger Allen Eddy, Jr. v The State Of Oklahoma

F-2001-336

Filed: Apr. 12, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Roger Allen Eddy, Jr. appealed his conviction for several crimes, including manufacturing methamphetamine and possession of a firearm while committing a felony. His conviction and sentence were for 35 years in prison for the manufacturing of methamphetamine, along with additional sentences for the other crimes, all to be served at the same time. Judge Strubhar dissented on some points related to the case.

Decision

Appellant's conviction and sentences on Count I is hereby AFFIRMED. His convictions and sentences on Counts II and III, i.e., Possession of a Precursor Substance and Possession of Methamphetamine, are hereby REVERSED and the matter is REMANDED to the District Court of Logan County with instructions to DISMISS both of those counts. Appellant's conviction on Count IV is hereby AFFIRMED, but his sentence thereon is hereby MODIFIED to five (5) years. All sentences shall be served concurrently.

Issues

• Was there sufficient evidence presented that Appellant committed an offense?
• Did Appellant's convictions for manufacturing methamphetamine, possession of methamphetamine, and possession of a precursor substance violate the state and federal prohibitions against double jeopardy and double punishment?
• Were Appellant's Fourteenth Amendment Due Process rights violated when the jury was erroneously instructed as to the range of punishment in the second stage, regarding Count IV?
• Did the accumulation of errors in this case deprive Appellant of due process of law pursuant to the state and federal constitutions?

Findings

• the court erred in finding sufficient evidence to support the convictions
• the court erred by allowing multiple punishments for what constituted one act of manufacturing
• the court erred in instructing the jury on the range of punishment for Count IV, leading to a modification of the sentence
• there was no plain error or ineffective assistance of counsel found

F-2001-336

Apr. 12, 2002

Roger Allen Eddy, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant, Roger Allen Eddy, Jr., was tried by jury in the District Court of Logan County, Case No. CF-2000-224, and convicted of Manufacture of a Controlled Dangerous Substance (Methamphetamine) (Count I), in violation of 63 O.S.Supp.2000, § 2-401(F), Possession of a Precursor Substance (Count II), in violation of 63 O.S.Supp.1999, § 2-328, Possession of a Controlled Dangerous Substance (Methamphetamine) (Count III), in violation of 63 O.S.Supp.1999, § 2-402, and Possession of a Firearm while Committing a Felony (Count IV), in violation of 21 O.S.Supp. 1999, § 1287.¹ Appellant was charged and convicted of committing each of these offenses after two former felony convictions. The jury set punishment at 35 years imprisonment on Count I, 35 years imprisonment on Count II, 20 years imprisonment on Count III, and 20 years imprisonment on Count IV. The trial judge sentenced Appellant accordingly and ordered all sentences to run concurrently.

1 Appellant was acquitted on Count V, Knowingly Concealing Stolen Property.

Appellant now appeals his convictions and sentences. He raises the following propositions of error:

I. There was insufficient evidence presented that Appellant committed an offense;
II. Appellant’s convictions for manufacturing methamphetamine, possession of methamphetamine, and possession of a precursor substance violate the state and federal prohibitions against double jeopardy and double punishment;
III. Appellant’s Fourteenth Amendment Due Process rights were violated when the jury was erroneously instructed as to the range of punishment in the second stage, regarding Count IV; and
IV. The accumulation of errors in this case deprived Appellant of due process of law pursuant to the state and federal constitutions.

After thoroughly considering these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find the issues Appellant raises in propositions two and three have merit and require relief, as set forth below.

With respect to proposition one, 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 crime of manufacturing and possession of a firearm while committing a felony beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985); Ott v. State, 967 P.2d 472, 476 (Okl.Cr.1998).

With respect to proposition two, we find, under the facts of this case, Appellant’s simultaneous convictions for manufacturing methamphetamine, possession of precursor substances, and possession of methamphetamine were not based upon a series of separate and distinct crimes here, but rather one act of manufacturing, which encompassed both possession of precursor substances and methamphetamine. Davis U. State, 993 P.2d 124, 126 (Okl.Cr.1999); Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995). Although no objection was filed at trial, the multiples punishments amount to plain error.

With respect to proposition three, we find plain error occurred when the jury was erroneously instructed that the range of punishment on Count IV, possession of a firearm while in the commission of a felony, in violation of 21 O.S.Supp.1999, § 1287, was not less than twenty (20) years imprisonment. Here, the punishment range was not less than two (2) years nor more than ten years, as a first violation of 21 O.S.Supp.1999 § 1287, which is itself a form of enhancement statute.

2 As such, we find Appellant’s sentence under Count IV must be modified, as set forth below.

With respect to proposition four, we find, under this record, no plain error or ineffective assistance of counsel concerning defense counsel’s introduction of prior convictions in the first stage, the jury instructions, enhancement of the convictions, or the impeachment procedure used. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994).

2 The Court was recently called upon to decide this very issue in the unpublished decision of Stratmoen v. State, F-2000-292. Three members of the Court took the position that an enhancement statute may not be enhanced by another enhancement statute. I dissented on that issue on the basis that Section 1287 is not an enhancement statute, but a substantive felony statute, which may be enhanced like another felony under 21 O.S.Supp. 1999, § 51.1. I continue to take that position, but defer to my colleagues here as a matter of stare decisis.

3

DECISION

Appellant’s conviction and sentences on Count I is hereby AFFIRMED. His convictions and sentences on Counts II and III, i.e., Possession of a Precursor Substance and Possession of Methamphetamine, are hereby REVERSED and the matter is REMANDED to the District Court of Logan County with instructions to DISMISS both of those counts. Appellant’s conviction on Count IV is hereby AFFIRMED, but his sentence thereon is hereby MODIFIED to five (5) years. All sentences shall be served concurrently.

AN APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY

THE HONORABLE DONALD L. WORTHINGTON, DISTRICT JUDGE

APPEARANCES AT TRIAL
DANIEL E. JAMES
2601 NW EXPRESSWAY, SUITE 201W
OKLAHOMA CITY, OK 73112

STUART W. SOUTHERLAND
P.O. BOX 4441
TULSA, OK 74159-0441
COUNSEL FOR APPELLANT

EDDIE VALDEZ
ASSISTANT DISTRICT ATTORNEY
LOGAN COUNTY

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

BRANT M. ELMORE
ASSISTANT ATTORNEY GENERAL
LOGAN COUNTY COURTHOUSE
GUTHRIE, OK 73044
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, P.J.
JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR
STRUBHAR, J.: CONCUR
LILE, J.: CONCUR

Click Here To Download PDF

Footnotes:

1. ¹ Appellant was acquitted on Count V, Knowingly Concealing Stolen Property.
2. ² As such, we find Appellant's sentence under Count IV must be modified, as set forth below.
3. ³ I continue to take that position, but defer to my colleagues here as a matter of stare decisis.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (Supp. 2000) - Manufacture of a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-328 (Supp. 1999) - Possession of a Precursor Substance
• Okla. Stat. tit. 63 § 2-402 (Supp. 1999) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1287 (Supp. 1999) - Possession of a Firearm while Committing a Felony
• Okla. Stat. tit. 21 § 51.1 (Supp. 1999) - Enhancement of Sentences

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:

• Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985)
• Ott v. State, 967 P.2d 472, 476 (Okl.Cr.1998)
• Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999)
• Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995)
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994)
• Stratmoen v. State, F-2000-292