Russell DeWayne Dykes v The State Of Oklahoma

F 2002-1035

Filed: Sep. 12, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Russell DeWayne Dykes appealed his conviction for Assault and Battery on a Police Officer, Possession of a Controlled Dangerous Substance, and Possession of a Controlled Dangerous Substance without a Tax Stamp. Conviction and sentence were modified to five years for count one and two years for count five, while the sentence for count three was affirmed. No justices dissented.

Decision

The judgments of the district court shall be AFFIRMED. The sentence in count three shall be AFFIRMED. The term of imprisonment in the sentence for count one shall be MODIFIED to five years imprisonment. The term of imprisonment in the sentence for count five shall be MODIFIED to two years imprisonment.

Issues

• Was there an inadequate chain of custody and contamination of evidence that denied Mr. Dykes a fair trial?
• Did the State's evidence support Appellant's conviction for possession of a controlled substance?
• Was the sentence imposed by the trial court in counts one and five in excess of the maximum sentence prescribed by statute?
• Should Mr. Dykes' sentence be modified to reflect the range of years orally pronounced by the trial court?
• Did the cumulative effect of errors deprive Appellant of a fair trial?

Findings

• sufficient chain of custody was established to render the evidence admissible
• the State's evidence was sufficient to support Appellant's conviction for possession of a controlled substance
• the trial court's imposition of sentence was correct, but two sentences exceeded the maximum term of years proscribed by statute
• the sentence for count three shall be modified to five years and the sentence for count five shall be modified to two years
• no further relief need be granted based on a cumulative error analysis

F 2002-1035

Sep. 12, 2003

Russell DeWayne Dykes

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE: Appellant, Russell DeWayne Dykes, was convicted, after a bench trial, of Assault and Battery on a Police Officer (Count 1) in violation of 21 O.S.Supp.1999, § 649(B), Possession of a Controlled Dangerous Substance (Methamphetamine) (Count 3) in violation of 63 O.S.Supp.1999, § 2-402, and Possession of a Controlled Dangerous Substance without a Tax Stamp Affixed (Count 5) in violation of 68 O.S.Supp.1999, § 450.8, in Creek County Case No. CF-2000-156, before the Honorable Joe Sam Vassar, District Judge. Judge Vassar sentenced Appellant to six (6) years and a $100 fine on each count to run concurrently. Appellant has perfected his appeal to this Court.

Dykes raises the following propositions of error in support of his appeal:
1. The inadequate chain of custody and strong evidence that the alleged contraband evidence offered in support of counts 3 and 5 had been contaminated, altered, or tampered with, denied Mr. Dykes of his right to due process and a fair trial.
2. The State’s evidence was insufficient to support Appellant’s conviction for possession of a controlled substance.
3. The sentence imposed by the trial court in each of counts 1 and 5 was in excess of the maximum sentence proscribed by statute, and must be set aside; or in the alternative modified as void.
4. Mr. Dykes’ sentence should be favorably modified to reflect the range of years orally pronounced by the trial court following conviction and the court’s subsequent proper exercise of discretion by ordering the sentences to run concurrently.
5. The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

After thorough consideration of Appellant’s propositions of error and the entire record before us on appeal, including the original record, transcripts, and briefs, we have determined that the judgments of the trial court shall be affirmed, the sentence in count three shall be affirmed, and the sentences in counts one and five shall be modified as set forth below.

In reaching our decision, we find, in proposition one that sufficient chain of custody was established to render the evidence admissible. McCarty v. State, 1995 OK CR 48, 904 P.2d 110, 126. In proposition two, we find that, after reviewing the evidence in a light most favorable to the State, any reasonable fact finder could have concluded that Appellant committed the offenses for which he was convicted beyond a reasonable doubt. See Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04; Jackson v. Virginia, 433 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979).

In propositions three and four, we find that the trial court’s imposition of sentence at the formal sentencing was correct; however, two of the sentences exceed the maximum term of years proscribed by statute. See Dyer v. State, 2001 OK CR 31, IT 4, 34 P.3d 652, 653 (any error in deviating from the original pronouncement was waived at formal sentencing). Therefore, the sentence for count three shall be modified to five years, and the sentence for count five shall be modified to two years. In proposition five, we find that no further relief need be granted based on a cumulative error analysis. Woods v. State, 1984 OK CR 24, I 10, 674 P.2d 1150, 1154.

DECISION
The judgments of the district court shall be AFFIRMED. The sentence in count three shall be AFFIRMED. The term of imprisonment in the sentence for count one shall be MODIFIED to five years imprisonment. The term of imprisonment in the sentence for count five shall be MODIFIED to two years imprisonment.

APPEARANCES AT TRIAL

KATHY FRY
APPELLANT DEFENSE COUNSEL
202 EAST 2ND AVENUE, #104
OWASSO, OK 74055

INDIGENT DEFENSE SYSTEM
ATTORNEY FOR DEFENDANT
P.O. BOX 926
NORMAN, OK 73070

ATTORNEYS FOR APPELLANT

DON I. NELSON
ASSISTANT DISTRICT ATTORNEY
CREEK COUNTY

W. A. DREW EDMONDSON
OKLAHOMA ATTORNEY GENERAL

KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
222 E. DEWEY, RM. 302
SAPULPA, OK 74066

ATTORNEY FOR THE STATE
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73104

ATTORNEYS FOR APPELLEE

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

RB

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Footnotes:

1. 21 O.S.Supp.1999, § 649(B)
2. 63 O.S.Supp.1999, § 2-402
3. 68 O.S.Supp.1999, § 450.8
4. McCarty v. State, 1995 OK CR 48, 904 P.2d 110, 126
5. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04
6. Jackson v. Virginia, 433 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979)
7. Dyer v. State, 2001 OK CR 31, IT 4, 34 P.3d 652, 653
8. Woods v. State, 1984 OK CR 24, I 10, 674 P.2d 1150, 1154

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 649(B) (1999) - Assault and Battery on a Police Officer
• Okla. Stat. tit. 63 § 2-402 (1999) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 68 § 450.8 (1999) - Possession of a Controlled Dangerous Substance without a Tax Stamp Affixed

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:

• McCarty v. State, 1995 OK CR 48, 904 P.2d 110, 126
• Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04
• Jackson v. Virginia, 433 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979)
• Dyer v. State, 2001 OK CR 31, IT 4, 34 P.3d 652, 653
• Woods v. State, 1984 OK CR 24, I 10, 674 P.2d 1150, 1154