Jerome Wade Hennesy v The State of Oklahoma

F 2001-873

Filed: Jul. 12, 2002

Not for publication

Prevailing Party: Jerome Wade Hennesy

Summary

# Jerome Wade Hennesy appealed his conviction for Trafficking in a Controlled Dangerous Substance (Cocaine Base). Conviction and sentence: ten years in prison and a $25,000 fine. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the trial court is hereby REVERSED AND REMANDED FOR A NEW TRIAL.

Issues

• Was there sufficient circumstantial evidence to exclude every reasonable hypothesis except that Appellant was guilty of trafficking in cocaine base?
• Did the improper admission of extensive other crimes evidence prejudice the Appellant's trial?

Findings

• the court erred in admitting other crimes evidence which was prejudicial and constituted plain error
• the sufficiency of evidence claim in Proposition One is moot
• the Judgment and Sentence of the trial court is reversed and remanded for a new trial

F 2001-873

Jul. 12, 2002

Jerome Wade Hennesy

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, Jerome Wade Hennesy, was convicted by a jury in Carter County District Court, Case No. CF 2000-442, of Trafficking in a Controlled Dangerous Substance (Cocaine Base), in violation of 63 O.S.2001, § 2-415. Jury trial was held June 5th and 6th, 2001, before the Honorable Lee Card, Associate District Judge. The jury set punishment at ten (10) years imprisonment and imposed a Twenty-Five Thousand Dollar ($25,000.00) fine. Judge Card formally sentenced Appellant on July 20, 2001 in accordance with the jury’s verdict. From the Judgment and Sentence imposed, Appellant filed this appeal.

Appellant raises two propositions of error:
1. The circumstantial evidence presented at trial failed to exclude every reasonable hypothesis except that Appellant was guilty of trafficking in cocaine base, and
2. Appellant was prejudiced by the improper admission of extensive other crimes evidence.

Appellant also was convicted of misdemeanor Unlawful Possession of Marijuana, CM 2000-735, but is not appealing that conviction.

After thorough consideration of the propositions raised, the record before us, the transcripts, the briefs and arguments of the parties, we have determined that relief is required for the reasons set forth below.

In Proposition Two, Appellant contends he was prejudiced by the improper admission of other crimes evidence and we agree. Although defense counsel did not object to the admission of this evidence, we find it was prejudicial, and its admission rose to the level of plain error in this case. Because the evidence in this case was not great and was entirely circumstantial, we cannot say the error was harmless. Simpson v. State, 1994 OK CR 40, I 18, 876 P.2d 690, 698. Accordingly, we find the case should be REVERSED AND REMANDED FOR A NEW TRIAL. Our decision on Proposition Two renders the sufficiency of evidence claim in Proposition One moot. We trust the State to strengthen its evidence showing knowledge and control over the contraband so that a similar claim will not be raised should Appellant be convicted on retrial.

DECISION

The Judgment and Sentence of the trial court is hereby REVERSED AND REMANDED FOR A NEW TRIAL.

APPEARANCES AT TRIAL
BURKE MORDY
ATTORNEY AT LAW
110 WEST MAIN
ARDMORE, OK 73401
ATTORNEY FOR THE DEFENDANT

CRAIG LADD
ASST. DISTRICT ATTORNEY
CARTER COUNTY COURTHOUSE
20 B STREET SW
ARDMORE, OK 73402
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL
GAIL GUNNING
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER J. DICKSON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

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

LUMPKIN, PRESIDING JUDGE: DISSENTS

Appellant was not prejudiced by the admission of evidence of other crimes. Evidence that Appellant was conducting drug transactions just prior to the execution of the search warrant was a part of the res gestae of the trafficking charge. See Rogers v. State, 890 P.2d 959, 971 (Okl.Cr.1995). The record shows that Appellant sold a controlled dangerous substance during the surveillance of the property in which a search warrant was soon to be executed. There is a visible connection between the selling of the drugs and the discovery of the crack cocaine in the trunk of the Mercedes. Smith v. State, 727 P.2d 1366 (Okl.Cr.1986). The evidence was part of the sequence of events and necessary to give the jury a complete understanding of the crime. Fontenot v. State, 881 P.2d 69, 83 (Okl.Cr.1994). Further, evidence of the drug sales was so closely connected to the trafficking charge so as to eliminate the element of surprise Burks v. State, 594 P.2d 771, 772 (Okl.Cr.1979) seeks to prevent. See Welborn v. State, 481 P.2d 783, 784 (Okl.Cr.1971). Therefore, no pre-trial notice was required. The probative value of the evidence was not outweighed by the danger of unfair prejudice. Omitting the evidence would have left the jury without a clear picture of the events surrounding the execution of the search warrant. Therefore, reversal is not warranted based upon admission of evidence of other drug sales.

Further, the evidence in this case was both direct and circumstantial. The drugs found in Appellant’s presence and in the Mercedes were direct evidence of guilt. Circumstantial evidence of guilt included Appellant’s possession of the car keys, and the large sums of money found on both Appellant and sister. Reviewing this evidence under the standard set forth in Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985), a rational trier of fact could find the elements of the crime charged beyond a reasonable doubt. As I have stated previously, there is no legal foundation supporting a separate standard of review depending on the evidence presented. See White v. State, 900 P.2d 982 (Okl.Cr.1995) (Lumpkin, J: specially concurring). This Court should recognize that fact and adopt a unified Spuehler-type approach to evaluating the sufficiency of the evidence in all cases.

LILE, JUDGE: DISSENTS

The evidence of drug transactions was evidence of possession of the trafficking quantity. The evidence was properly admitted into evidence.

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Footnotes:

1. 63 O.S.2001, § 2-415.
2. Simpson v. State, 1994 OK CR 40, I 18, 876 P.2d 690, 698.
3. Rogers v. State, 890 P.2d 959, 971 (Okl.Cr.1995).
4. Smith v. State, 727 P.2d 1366 (Okl.Cr.1986).
5. Fontenot v. State, 881 P.2d 69, 83 (Okl.Cr.1994).
6. Burks v. State, 594 P.2d 771, 772 (Okl.Cr.1979).
7. Welborn v. State, 481 P.2d 783, 784 (Okl.Cr.1971).
8. Jones v. State, 772 P.2d 922 (Okl.Cr. 1989).
9. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).
10. White v. State, 900 P.2d 982 (Okl.Cr.1995).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2001) - Trafficking in a Controlled Dangerous Substance

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:

• Simpson v. State, 1994 OK CR 40, I 18, 876 P.2d 690, 698
• Rogers v. State, 890 P.2d 959, 971 (Okl.Cr.1995)
• Smith v. State, 727 P.2d 1366 (Okl.Cr.1986)
• Fontenot v. State, 881 P.2d 69, 83 (Okl.Cr.1994)
• Burks v. State, 594 P.2d 771, 772 (Okl.Cr.1979)
• Welborn v. State, 481 P.2d 783, 784 (Okl.Cr.1971)
• Jones v. State, 772 P.2d 922 (Okl.Cr. 1989)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
• White v. State, 900 P.2d 982 (Okl.Cr.1995)