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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA KENNETH LEE DUEITT, ) ) NOT FOR PUBLICATION Appellant, ) V. ) Case No. F 2002-157 ) FILED THE STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) APR – 1 2003 SUMMARY OPINION MICHAEL S. RICHIE JOHNSON, PRESIDING JUDGE: CLERK 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 2 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…”1 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. 1 Preliminary Hearing Transcript at p. 35-36 3 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 APPEARANCES ON APPEAL CHARLES BROADWAY ANDREAS T. PITSIRI ATTORNEY AT LAW APPELLATE DEFENSE COUNSEL 102 EAST EUFALA 1623 CROSS CENTER DRIVE NORMAN, OK NORMAN, OK 73019 ATTORNEY FOR THE DEFENDANT ATTORNEY FOR APPELLANT NATHAN DILLS W.A. DREW EDMONDSON ASST. DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA OKLAHOMA COUNTY COURTHOUSE ANN AGNEW CUPP 320 ROBERT S. KERR, SUITE 505 ASSISTANT ATTORNEY GENERAL OKLAHOMA CITY, OK 73102 112 STATE CAPITOL BUILDING ATTORNEY FOR THE STATE 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 4 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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