Helen Rose Rosson v The State Of Oklahoma

F-2002-1511

Filed: Feb. 27, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Helen Rosson appealed her conviction for Unlawful Delivery of a Controlled Drug. The conviction and sentence were originally for fifty (50) years' imprisonment and a $60,000.00 fine. Judge Lumpkin dissented regarding the sentence modification, believing it should have been changed to forty-five (45) years instead of ten.

Decision

The Judgment is AFFIRMED and the Sentence is MODIFIED to ten (10) years' imprisonment.

Issues

• Was there double jeopardy due to punishment for one criminal transaction?
• Did the introduction of inadmissible other crimes evidence prejudice the appellant?
• Did prosecutorial misconduct deny the appellant a fair trial?
• Is the appellant's sentence excessive and should it be modified?

Findings

• The court erred; Rosson's conviction for Delivery of a Controlled Drug and her conviction in another county for Acquiring Proceeds from a Drug Transaction were separate and distinct, not violating double jeopardy.
• The evidence was not sufficient; the "other crimes" evidence should not have been admitted.
• The court did not find prosecutorial misconduct affected Rosson's right to a fair trial.
• The sentence was modified to ten (10) years' imprisonment.

F-2002-1511

Feb. 27, 2004

Helen Rose Rosson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Helen Rosson was tried by jury and convicted of Unlawful Delivery of a Controlled Drug in violation of 63 O.S.2001, § 2-401 in Creek County District Court Case No. CF-2001-418. In accordance with the jury’s recommendation, the Honorable Donald Thompson sentenced Rosson to fifty (50) years’ imprisonment and a $60,000.00 dollar fine. Rosson appeals this judgment and sentence. Rosson raises the following propositions of error:

I. Because Ms. Rosson was punished twice for one criminal transaction, her conviction for delivery of a controlled drug must be reversed with instructions to dismiss.

II. Appellant was prejudiced by the introduction of inadmissible other crimes evidence.

III. Prosecutorial misconduct denied Appellant a fair trial.

IV. Ms. Rosson’s sentence is excessive and should be modified.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we find that reversal is not required but that Rosson’s sentence must be modified. We find in Proposition I that Rosson’s instant conviction for Delivery of a Controlled Drug and her conviction in Rogers County for Acquiring Proceeds from a Drug Transaction were separate and distinct and did not violate 21 O.S.2001, §11 or double jeopardy.¹ We find in Proposition II that the other crimes evidence should not have been admitted.² We find in Proposition III that Rosson was not denied a fair trial by any of the Prosecutor’s misconduct. We find that Proposition IV is moot due to the relief recommended in Proposition II.

Decision

The Judgment is AFFIRMED and the Sentence is MODIFIED to ten (10) years’ imprisonment.

¹ Mooney U. State, 990 P.2d 875, 883-84 (Okl.Cr.1999)(adopting same evidence test for double jeopardy violation involving multiple prosecutions). Here, the crimes were committed on separate dates at different locations and constituted two entirely separate transactions. But See; Mathues v. State, 925 P.2d 64, 65 (Okl.Cr.1996)(finding § 11 violation where defendant was convicted of delivery of a controlled drug and simultaneous acquisition of transaction proceeds).

² Hill v. State, 589 P.2d 1073 (Okl.Cr.1979). The jury was erroneously allowed to hear evidence and view the Judgments and Sentences of two separate drug related transactions. While the evidence of guilt was overwhelming irrespective of that additional information, it did affect the jury’s sentencing decision, requiring modification.

³ As most of the complained-of testimony offered by Detective Sergeant Brett Henson was not objected to, we review for plain error. Selsor v. State, 2 P.3d 344, 354 (Okl.Cr.2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001). We find that none of the testimony affected the jury’s determination of guilt as the evidence was overwhelming. Moreover, any effect the testimony may have on Rosson’s sentence was rectified by the relief given in Proposition II.

ATTORNEYS AT TRIAL

R. LAWRENCE ROBERSON
732 EAST TAFT
SAPULPA, OKLAHOMA 74066
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR THE DEFENDANT

BILLY J. BAZE
ATTORNEY FOR APPELLANT

CAROL ISKI
ASSISTANT DISTRICT ATTORNEY
CREEK COUNTY COURTHOUSE
P.O. BOX 1006
SAPULPA, OKLAHOMA 74066
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
BRENDA R. FITZPATRICK
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR IN PART/DISSENT IN PART
LUMPKIN, J.: CONCUR IN PART/DISSENT IN PART
STRUBHAR, J.: CONCUR

LUMPKIN, JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the conviction in this case. However, I find no basis in law or fact to modify the sentence to ten (10) years imprisonment. Granted, our prior case of Hill v. State, 589 P.2d 1073 (Okl.Cr. 1979), states evidence of the other transactions is error. However, even in that case, the Court only modified the sentence by deducting 5 years from the jury verdict to correct the error. The jury sentence in this case is supported by the record. If we are to adjust the sentence to correct the error, the modification should only be to forty-five (45) years imprisonment, not ten (10) years. What the Appellant received in this case is true individualized sentencing. The jury was informed regarding the true extent of her criminal activity. The jury was tired of this repeat drug offender being on the street and the evidence supports their decision. To correct the evidentiary error, I would agree the sentence should be modified to forty-five (45) years imprisonment.

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Footnotes:

1. Okla. Stat. tit. 21 § 11
2. Hill v. State, 589 P.2d 1073 (Okl.Cr.1979)
3. Selsor v. State, 2 P.3d 344 (Okl.Cr.2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001)
4. Mooney U. State, 990 P.2d 875 (Okl.Cr.1999)
5. Mathues v. State, 925 P.2d 64 (Okl.Cr.1996)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 - Unlawful Delivery of a Controlled Drug
• Okla. Stat. tit. 21 § 11 - Double Jeopardy
• Okla. Stat. tit. 21 § 701.8 - Sentencing

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:

• Mooney v. State, 990 P.2d 875, 883-84 (Okl.Cr.1999)
• Mathues v. State, 925 P.2d 64, 65 (Okl.Cr.1996)
• Hill v. State, 589 P.2d 1073 (Okl.Cr.1979)
• Selsor v. State, 2 P.3d 344, 354 (Okl.Cr.2000)