Kenneth Lee Dueitt v The State Of Oklahoma

F 2002-157

Filed: Apr. 1, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Kenneth Lee Dueitt appealed his conviction for Manufacturing Methamphetamine. Conviction and sentence affirmed for Counts 1, 3, and 4, but Count 2 was reversed and sent back for a new trial. Judge Lile dissented regarding Count 2.

Decision

The Judgment and Sentences imposed in Oklahoma County District Court, Case No. CF 2001-504, Counts 1, 3 and 4, are hereby AFFIRMED. Count 2 is REVERSED AND REMANDED FOR A NEW TRIAL.

Issues

• Was there a violation of double jeopardy and double punishment with Mr. Dueitt's convictions for Manufacturing Methamphetamine and Possession of a Precursor Substance?
• Did the trial evidence sufficiently support Mr. Dueitt's convictions, excluding every reasonable hypothesis except for his guilt?
• Was the trial court's denial of the defense's objection regarding the variance in the State's theory of the case erroneous?
• Did the variance in the State's theory of the case deprive Mr. Dueitt of adequate notice regarding the charge he had to defend against?

Findings

• Count 2 is reversed and remanded for a new trial due to the trial court's error regarding notice.
• Counts 1, 3, and 4 are affirmed.

F 2002-157

Apr. 1, 2003

Kenneth Lee Dueitt

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Kenneth Lee Dueitt, was convicted by a jury in Oklahoma County District Court, Case No. CF 2001-504, of Manufacturing a Controlled Dangerous Substance (Methamphetamine), in violation of 63 O.S.Supp.2000, § 2-401 (Count 1); Possession of a Precursor Substance with a Permit (Red Phosphorus), in violation of 63 O.S.Supp.2000, § 2-328(E) (Count 2); Possession of Controlled Dangerous Substance (Methamphetamine), in violation of 63 O.S.Supp.2000, § 2-402 (Count 3); Possession of Drug Paraphernalia, in violation of 63 O.S.Supp.2000, § 2-405 (Count 4), after former conviction of one prior felony. Jury trial was held before the Honorable Ray Elliott, on November 5th – 7th, 2001. The jury returned set punishment at Twenty-five (25) years and a Fifty Thousand Dollar ($50,000.00) fine on Count 1; Five (5) years on Count 2; Ten (10) years on Count 3; and, no time on Count 4. (O.R. 97-100; 109-112) Formal sentencing was held on January 23, 2002, and Judge Elliott ordered Counts 1 and 3 to run concurrently with each other and consecutively to Count 2. From the Judgment and Sentence imposed, Appellant perfected this appeal.

Appellant raised two propositions of error:
1. Mr. Dueitt’s convictions for Manufacturing Methamphetamine and for Possession of a Precursor Substance violate the prohibitions against double jeopardy and double punishment, and
2. The trial evidence was insufficient to support Mr. Dueitt’s convictions because the evidence failed to exclude every reasonable hypothesis except that of Appellant’s guilt.

After thorough consideration of the propositions raised, including the Original Record, transcripts, and briefs and arguments of the parties, we have determined that Count 2 should be reversed and remanded with instructions to dismiss for the reasons set forth below. Counts 1, 3 and 4 are affirmed.

Appellant challenges the sufficiency of the evidence going to Counts 1 and 2 in Proposition Two. Viewing the evidence in a light most favorable to the State, we find there was sufficient evidence presented from which the jury could find all of the elements of manufacturing beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. It is up to the jury to determine the weight and credibility to be given the witnesses’ testimony, consider their motives, and resolve conflicts in the evidence presented. This Court accepts those determinations. Plantz v. State, 1994 OK CR 33, I 43, 876 P.2d 268, 281. Because we find Count 2 should be reversed for the reasons set forth in Proposition One, we need not discuss the sufficiency of the evidence relating to that Count.

The record in this case reveals Appellant was bound over at a preliminary hearing for possession of the precursor substance, red phosphorus, based upon his suspected possession of that substance found at the methamphetamine lab. In fact, the State specifically stated at the preliminary hearing that it was making no allegations as to the red phosphorus that was found in the automobile… However, at trial, the State changed its theory of the case to prove Appellant possessed the precursor substance found in the automobile. Prior to trial, defense counsel argued the variance in the State’s theory created a notice problem and objected to the State’s use of a lab report showing the substance found in the car was red phosphorus. The trial court denied the objection.

An accused is entitled to notice of the charge he must be prepared to defend against. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). A variance between the charge made in the Information, and the evidence or theory presented at trial, is not fatal to the conviction unless it either deprived the defendant of adequate notice of what he had to defend against, or subjects him to double jeopardy. United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999); see also Patterson v. State, 2002 OK CR 18, II 23-25, 45 P.3d 926, 931. Under the unique facts of this case, we find the trial court’s ruling was in error and Appellant’s conviction for Possession of a Precursor Substance without a Permit (Count 2) should be REVERSED AND REMANDED FOR A NEW TRIAL.

DECISION

The Judgment and Sentences imposed in Oklahoma County District Court, Case No. CF 2001-504, Counts 1, 3 and 4, are hereby AFFIRMED. Count 2 is REVERSED AND REMANDED FOR A NEW TRIAL.

APPEARANCES AT TRIAL

CHARLES BROADWAY
ATTORNEY AT LAW
102 EAST EUFALA
NORMAN, OK

ANDREAS T. PITSIRI
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019

ATTORNEY FOR THE DEFENDANT

NATHAN DILLS
ASST. DISTRICT ATTORNEY
OKLAHOMA COUNTY COURTHOUSE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102

ANN AGNEW CUPP
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105

ATTORNEYS FOR STATE

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

LILE, VICE PRESIDING JUDGE: CONCURS IN PART/DISSENTS IN PART
I would affirm Count 2 because the defendant had sufficient notice prior to trial.

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Footnotes:

1. 63 O.S.Supp.2000, § 2-401
2. 63 O.S.Supp.2000, § 2-328(E)
3. 63 O.S.Supp.2000, § 2-402
4. 63 O.S.Supp.2000, § 2-405
5. O.R. 97-100; 109-112
6. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
7. Plantz v. State, 1994 OK CR 33, "I 43, 876 P.2d 268, 281
8. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948)
9. United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999)
10. Patterson v. State, 2002 OK CR 18, II 23-25, 45 P.3d 926, 931
11. Preliminary Hearing Transcript at p. 35-36

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2000) - Manufacturing a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-328 (2000) - Possession of a Precursor Substance with a Permit
• Okla. Stat. tit. 63 § 2-402 (2000) - Possession of Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-405 (2000) - Possession of Drug Paraphernalia

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, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Plantz v. State, 1994 OK CR 33, "I 43, 876 P.2d 268, 281
• Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948)
• United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999)
• Patterson v. State, 2002 OK CR 18, II 23-25, 45 P.3d 926, 931