Thomas Edward Gale v State Of Oklahoma

F-2003-1297

Filed: Mar. 2, 2005

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Thomas Edward Gale appealed his conviction for manufacturing and possessing methamphetamine and other related charges. His conviction and sentence included a total of 20 years for manufacturing, 10 years for possession, and additional time and fines for other charges, with some sentences running together. The court listened to his complaints about being punished too harshly and having two similar charges. The decision found that his convictions for manufacturing and possessing precursors did not violate laws against double punishment, but it agreed that he shouldn't have been punished twice for having two different precursor substances. So, one of his charges was canceled. The court kept all other convictions and sentences the same. Judge Lumpkin agreed with the decision, but Judge Lile did not participate.

Decision

The Judgment and Sentence of the trial court on Counts 1, 2, 3 and 5 is AFFIRMED. Count 4, Possession of a Precursor without a Permit, is REVERSED with Instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of double punishment and double jeopardy with simultaneous convictions for manufacturing methamphetamine and possession of precursors without a permit?
• Did the State proceed under the wrong statute for the conviction of possession of precursor without a permit for ephedrine?
• Was the evidence sufficient to convict Mr. Gale of maintaining a dwelling where drugs are used or sold?
• Did the trial court improperly assess the $50,000.00 fine?
• Is Mr. Gale's sentence excessive?
• Did the cumulative effect of all alleged errors deprive Appellant of a fair trial?

Findings

• The court erred in finding that multiple convictions for possessing a precursor without a permit violated the statutory prohibition against double punishment.
• The error alleged in Proposition II is rendered moot and will not be considered further.
• The evidence was sufficient to uphold the conviction for maintaining a dwelling where drugs are used or sold.
• The trial court properly assessed the mandatory statutory fine and did not deny jury sentencing.
• The sentence imposed was not excessive and did not shock the conscience of the court.

F-2003-1297

Mar. 2, 2005

Thomas Edward Gale

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Thomas Edward Gale, Appellant, was tried by jury in the District Court of Okmulgee County, Case No. CF-2002-162, where he convicted of Count 1 – Manufacturing Methamphetamine, Count 2 – Possession of a Controlled Dangerous Substance (Methamphetamine), Count 3 – Possession of the Precursor Red Phosphorus Without a Permit, Count 4 – Possession of the Precursor Ephedrine Without a Permit and Count 5 – Maintaining a Dwelling Where Drugs are Used or Sold. The jury recommended twenty (20) years imprisonment on Count 1, ten (10) years imprisonment on Count 2, seven (7) years imprisonment on Counts 3 & 4 and five (5) years imprisonment on Count 5. The Honorable Charles M. Humphrey, who presided at trial, sentenced Appellant accordingly and imposed a $50,000.00 fine on Count 1. The trial court ordered the sentences to run concurrently and suspended all but the first ten years of Appellant’s sentence in Count 1, as well as, $30,000.00 of the fine imposed. Appellant timely filed this appeal.

Appellant raises the following propositions of error:

I. The simultaneous convictions for Count I, Manufacture of Controlled Dangerous Substance, Methamphetamine, and Counts III and IV, Possession of Precursor without a permit, red phosphorous and ephedrine, violated the statutory prohibition against double punishment and double jeopardy;
II. In the alternative to Proposition I, the State proceeded under the wrong statute for Mr. Gale’s conviction in Count IV for possession of precursor without a permit, ephedrine;
III. The evidence was insufficient to convict Mr. Gale of Count V, Maintaining a Dwelling Where Drugs are used or sold;
IV. The trial court improperly assessed the $50,000.00 fine;
V. Mr. Gale’s sentence is excessive; and
VI. The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, exhibits and briefs of the parties, we affirm in part, reverse in part. As to Proposition I, we find Appellant’s convictions for manufacturing a controlled dangerous substance and possession of a precursor substance without a permit are separate and distinct offenses based on the facts of this case and do not violate 21 O.S.2001, § 11. Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999); Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995). We do, however, agree with Appellant that his two convictions for possessing a precursor without a permit (Count 3 – red phosphorous and Count 4 – ephedrine) violate the statutory prohibition against multiple punishment. 21 O.S.2001, § 11. Possession of Precursor Substances Without a Permit is a single offense under 63 O.S.2001, §§ 2-322 & 2-328. The statutory prohibition in § 2-322 (A) does not distinguish between the types of precursor substances; rather, it prohibits the possession, sale, manufacture, transfer or furnishing of the listed precursors individually or in combination. As such, Appellant’s act of possessing two different precursor substances constitutes one act of possessing precursors without a permit. See Watkins v. State, 855 P.2d 141, 142 (Okl.Cr.1992). Because Appellant has been punished twice for one act of possessing precursors without a permit, we find that Count 4 must be reversed with instructions to dismiss.

The disposition of this claim renders moot the claim raised in Appellant’s Proposition II. Therefore, the error alleged in Proposition II will not be considered further. As to Proposition III, we find the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Appellant maintained barn #2 and it was substantially used for keeping, consuming or selling drugs. Therefore, his conviction in Count 5 will stand. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985). As to Proposition IV, we find Appellant was not denied jury sentencing when the trial court imposed the mandatory statutory fine in Count I. 63 O.S.Supp.2002, § 2-401 (G)(2); 22 O.S.Supp. 2002, § 991a (A)(2). As to Proposition V, we find the sentence imposed is not so excessive as to shock the conscience of this Court. Rea U. State, 34 P.3d 148, 149 (Okl.Cr.2001). And finally as to Proposition VI, the only error found has been remedied with the dismissal of Count 4. None of the other alleged errors have merit. Consequently, no further relief is required. Lockett v. State, 53 P.3d 418, 431, cert. denied, 538 U.S. 982, 123 S.Ct. 1794, 155 L.Ed.2d 673 (2003).

DECISION

The Judgment and Sentence of the trial court on Counts 1, 2, 3 and 5 is AFFIRMED. Count 4, Possession of a Precursor without a Permit, is REVERSED with Instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 11.
2. 63 O.S.2001, §§ 2-322 & 2-328.
3. 63 O.S.Supp.2002, § 2-401 (G)(2).
4. 22 O.S.Supp. 2002, § 991a (A)(2).
5. Rea U. State, 34 P.3d 148, 149 (Okl.Cr.2001).
6. Lockett v. State, 53 P.3d 418, 431, cert. denied, 538 U.S. 982, 123 S.Ct. 1794, 155 L.Ed.2d 673 (2003).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 11 (2001) - Prohibition against double punishment and double jeopardy
• Okla. Stat. tit. 63 § 2-322 (2001) - Possession of Precursor Substances Without a Permit
• Okla. Stat. tit. 63 § 2-328 (2001) - Related to precursor substances
• Okla. Stat. tit. 63 § 2-401 (Supp. 2002) - Mandatory statutory fine
• Okla. Stat. tit. 22 § 991a (Supp. 2002) - Jury 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:

• Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999)
• Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995)
• Watkins v. State, 855 P.2d 141, 142 (Okl.Cr.1992)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985)
• Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001)
• Lockett v. State, 53 P.3d 418, 431, cert. denied, 538 U.S. 982, 123 S.Ct. 1794, 155 L.Ed.2d 673 (2003)