Michael Orlando Wafford v State Of Oklahoma

F-2002-1470

Filed: Nov. 25, 2003

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Michael Orlando Wafford appealed his conviction for trafficking in illegal drugs and other crimes. Conviction and sentence: 30 years for trafficking, 10 years for possession of a firearm while committing a felony, and 5 years for possession of a controlled substance with intent to distribute. The court decided to reverse one of his convictions for concealing stolen property. Judge Johnson dissented.

Decision

The Judgment and Sentence of the trial court on Counts I, II and III is AFFIRMED. Count IV, Concealing Stolen Property, is REVERSED with Instructions to DISMISS.

Issues

• Was there sufficient evidence to support the conviction for possession of a weapon while committing a felony and for trafficking?
• Did the state improperly carve two crimes from one presence of a gun?
• Did an evidentiary harpoon deprive the Appellant of a fair trial?
• Did the trial court err by allowing evidence which was more prejudicial than probative to be admitted at trial?
• Did the trial court err by not preventing inadmissible hearsay from being admitted to the jury?
• Did the trial court err by allowing other crime evidence to be admitted?
• Did cumulative error deny the Appellant a fair trial?

Findings

• the evidence was sufficient to support the conviction for possession of a weapon while committing a felony and for trafficking
• the court erred in convicting Appellant for both possession of a firearm while committing a felony and concealing stolen property, resulting in the reversal of the latter
• no evidentiary harpoon occurred
• no error in the admission of certain testimony
• any error related to inadmissible hearsay did not affect the verdict
• defense counsel opened the door to certain questioning regarding the initial investigation and undercover drug buy
• no cumulative error denied Appellant a fair trial

F-2002-1470

Nov. 25, 2003

Michael Orlando Wafford

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Michael Orlando Wafford, Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CF-2002-1055, and was convicted of Count I – Trafficking in Illegal Drugs, Count II – Possession of a Firearm While Committing a Felony, Count III – Possession of a Controlled Dangerous Substance with Intent to Distribute and Count IV – Concealing Stolen Property, each after former conviction of a felony. The jury recommended thirty years imprisonment on Count I, ten years on Count II and five years on both Counts III and IV. The Honorable Susan P. Caswell, who presided at trial, sentenced Appellant accordingly. From this judgment and sentence, he appeals.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs of the parties, we affirm in part and reverse in part. The following propositions of error were considered:

I. The evidence was insufficient to support the conviction for possession of a weapon while committing a felony and for trafficking;
II. The state should not have been allowed to carve two crimes from one presence of a gun;
III. An evidentiary harpoon deprived Appellant of a fair trial;
IV. The trial court erred by allowing evidence which was more prejudicial than probative to be admitted at trial;
V. The trial court erred by not preventing inadmissible hearsay from being admitted to the jury;
VI. The trial court erred by allowing other crime evidence to be admitted; and
VII. Cumulative error denied Appellant a fair trial.

As to Proposition I, we find the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Appellant constructively possessed the cocaine. Hill v. State, 898 P.2d 155, 166 (Okl.Cr.1995). We also find the State sufficiently proved a nexus between the gun and the drug crimes. Ott v. State, 967 P.2d 472, 476 (Okl.Cr.1998), cert. denied, 525 U.S. 1180, 119 S.Ct. 1119, 143 L.Ed.2d 114 (1999). As such, no relief is required.

As to Proposition II, we find Appellant’s convictions for possession of a firearm while committing a felony and concealing stolen property violate 21 O.S.2001, § 11A. See Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999). The record shows the .357 magnum revolver discovered during the execution of the search warrant was used to support both the possession charge and the concealing stolen property charge. Appellant’s one act of having the gun in the apartment resulted in the two charges and resulting convictions. As such, we reverse with instructions to dismiss Appellant’s conviction for concealing stolen property.

As to Proposition III, we find Officer Beck’s testimony is not an evidentiary harpoon under our case law. Torres v. State, 962 P.2d 3, 13 (Okl.Cr.1998), cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999). Therefore, we find no plain error.

As to Proposition IV, we find no error in the admission of Beck’s testimony concerning the calculations on the back of the SURE-TEL agreement or in the admission of Beck’s opinion that the marihuana seized was not for personal use. 12 O.S.2001, §§ 2401, 2403 and 2702. We find that any error in the failure to redact the traffic tickets did not affect the outcome of the trial. Simpson v. State, 876 P.2d 690, 702 (Okl.Cr.1994).

As to Proposition V, we find any error stemming from the jury hearing the inadmissible hearsay had no effect on the verdict, especially since the objection was sustained and there was ample other evidence introduced to connect Appellant to the apartment and to prove dominion and control. Simpson, 876 P.2d at 702. See also Moss v. State, 888 P.2d 509, 518-19 (Okl.Cr.1994).

As to Proposition VI, we find defense counsel did open the door to the prosecutor’s questions concerning the initial investigation/undercover drug buy. One who opens up an area of inquiry on direct examination is not then able to complain when that area is pursued further on cross-examination. Parker v. State, 917 P.2d 980, 984 (Okl.Cr.1996), cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997). In addition, evidence of the undercover drug buy between Appellant and the confidential informant showed Appellant’s knowledge of the drugs and intent to distribute. 12 O.S.2001, § 2404(B).

As to his final proposition, we find there was no error that, by itself or in combination with other errors, denied Appellant a fair trial. Lewis v. State, 970 P.2d 1158, 1176, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999).

DECISION

The Judgment and Sentence of the trial court on Counts I, II and III is AFFIRMED. Count IV, Concealing Stolen Property, is REVERSED with Instructions to DISMISS.

APPEARANCES AT TRIAL

BOB CARPENTER CASSANDRA WILLIAMS
RUSSELL WASHINGTON W.A. DREW EDMONDSON
OKLAHOMA INDIGENT ASST. DISTRICT ATTORNEY
DEFENSE SYSTEM ATTORNEY GENERAL
233 WEST PARK 320 ROBERT S. KERR
P.O. BOX 926 SUITE 505
OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73102

ATTORNEYS FOR APPELLANT ATTORNEYS FOR THE STATE

APPEARANCES ON APPEAL

LISBETH L. McCARTY PATRICK T. CRAWLEY
OKLAHOMA INDIGENT ASST. ATTORNEY GENERAL
DEFENSE SYSTEM 2300 N. LINCOLN BLVD., SUITE 112
NORMAN, OK 73070 OKLAHOMA CITY, OK 73105

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

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

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Footnotes:

1. 12 O.S.2001, §§ 2401, 2403 and 2702.
2. 21 O.S.2001, § 11A.
3. 12 O.S.2001, § 2404 (B).
4. Okla. Stat. tit. 21 § 11A.
5. Okla. Stat. tit. 12 § 2401.
6. Okla. Stat. tit. 12 § 2403.
7. Okla. Stat. tit. 12 § 2702.
8. Okla. Stat. tit. 21 § 11A.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 11A (2001) - Possession of firearm while committing a felony
• Okla. Stat. tit. 12 § 2401 (2001) - General provisions regarding admissibility of evidence
• Okla. Stat. tit. 12 § 2403 (2001) - Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
• Okla. Stat. tit. 12 § 2702 (2001) - Opinions and expert testimony
• Okla. Stat. tit. 12 § 2404 (2001) - Character evidence; crimes or other acts

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:

• Hill v. State, 898 P.2d 155, 166 (Okl.Cr.1995)
• Ott v. State, 967 P.2d 472, 476 (Okl.Cr.1998), cert. denied, 525 U.S. 1180, 119 S.Ct. 1119, 143 L.Ed.2d 114 (1999)
• Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999)
• Torres v. State, 962 P.2d 3, 13 (Okl.Cr.1998), cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999)
• Simpson v. State, 876 P.2d 690, 702 (Okl.Cr.1994)
• Moss v. State, 888 P.2d 509, 518-19 (Okl.Cr.1994)
• Parker v. State, 917 P.2d 980, 984 (Okl.Cr.1996), cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997)
• Lewis v. State, 970 P.2d 1158, 1176, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999)