Joe Lynn Paddock v The State Of Oklahoma

F-2003-336

Filed: Jun. 21, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Joe Lynn Paddock appealed his conviction for multiple crimes, including conspiracy to manufacture drugs and possession of methamphetamine. His conviction and sentence totaled 50 years for some charges. Judge Chapel dissented, suggesting that all sentences should run at the same time instead of consecutively. The court decided to dismiss one charge due to lack of evidence and modified some sentences but kept most of the convictions and sentences.

Decision

The judgment and sentence on Count VII (Failure to Carry Security Verification) is hereby REVERSED and DISMISSED for lack of evidence. The Judgments on Counts I, II, IV, V, VI, VIII, and IX are hereby AFFIRMED, as are the sentences on Counts IV, V, VI, VIII, and IX. The sentences on Counts I and II are each hereby MODIFIED to twenty-five (25) years, to be served consecutively to each other and the sentences on Counts IV, V, VI, VIII, and IX, to be served concurrently with Count II and with each other.

Issues

• Was there sufficient evidence to support the conviction for Failure to Carry Security Verification?
• Did the prosecutor's misconduct deprive the appellant of a fair trial and influence the sentencing?

Findings

• the court erred in affirming conviction on Count VII due to insufficient evidence
• the prosecutor's misconduct was plain error affecting sentencing
• the sentences on Counts I and II were modified to twenty-five years each
• the judgments on Counts I, II, IV, V, VI, VIII, and IX were affirmed

F-2003-336

Jun. 21, 2004

Joe Lynn Paddock

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Joe Lynn Paddock, was tried by jury in the District Court of Logan County, Case Number CF-2001-264, and convicted of the following crimes: Conspiracy to Manufacture a Controlled Dangerous Substance, after former felony conviction, in violation of 63 O.S.2001, § 2-408 (Count I); Unlawful Possession of a Controlled Dangerous Substance (Methamphetamine) with Intent to Distribute, after former felony conviction, in violation of 63 O.S.2001, § 2-402 (Count II);¹ Knowingly Concealing Stolen Property, after former felony conviction, in violation of 21 O.S.2001, § 1713 (Count IV); Driving While License is Suspended, in violation of 47 O.S.2001, § 6-303 (Count V); Operating a Vehicle with Expired Tag and Decal, in violation of 47 O.S.2001, § 1151 (Count VI); Failure to Carry Security Verification, in violation of 47 O.S.2001, § 7-602 (Count VII); Unlawful Possession of a Radio Set Capable of Receiving Law Enforcement Transmissions, after former felony conviction, in violation of 21 O.S.2001, § 1214 (Count VIII); and Possession of a Controlled Dangerous Substance without a Tax Stamp, after former felony conviction, in violation of 63 O.S.2001, § 450.1 (Count IX). Appellant was sentenced to fifty (50) years imprisonment on each of Counts I and II, ten (10) years imprisonment on each of Counts IV, VIII, and IX, one (1) year imprisonment on Count V, time served on Count VI, and thirty (30) days in the county jail on Count VII. The trial judge sentenced Appellant in accordance with the jury’s determination. Counts I and II were ordered to be served consecutively, and the remaining sentences were ordered to be served concurrently to each other and Count II. Appellant now appeals his convictions and sentences.

Appellant raises the following propositions of error in this appeal:

I. Because the State failed to introduce any evidence to support Count VII of the Information, this Court must reverse the conviction with instructions to dismiss; and

II. The repeated instances of misconduct by the prosecutor deprived Appellant of a fair trial and resulted in the jury imposing the maximum possible term of incarceration on each count of the Information.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find relief by way of reversal and modification is required as set forth below.

With respect to proposition one, we find insufficient evidence in the record to support Appellant’s conviction for Count VII, failure to carry security verification. Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985). With respect to proposition two, we find the prosecutor made repeated references during the trial concerning Appellant’s exercise of his Constitutional right to remain silent and personal attacks that had no relevance except to influence the jury. Although no objections were lodged, we find plain error that was harmless as to guilt, but not harmless with respect to sentencing. Simpson v. State, 876 P.2d 701 (Okl.Cr.1994). Therefore, due to the prosecutor’s improper argument, the sentence must be modified.

DECISION

The judgment and sentence on Count VII (Failure to Carry Security Verification) is hereby REVERSED and DISMISSED for lack of evidence. The Judgments on Counts I, II, IV, V, VI, VIII, and IX are hereby AFFIRMED, as are the sentences on Counts IV, V, VI, VIII, and IX. The sentences on Counts I and II are each hereby MODIFIED to twenty-five (25) years, to be served consecutively to each other and the sentences on Counts IV, V, VI, VIII, and IX, to be served concurrently with Count II and with each other.

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Footnotes:

1. ¹ Knowingly Concealing Stolen Property, after former felony conviction, in violation of 21 O.S.2001, § 1713 (Count IV).
2. 2 during the trial concerning Appellant's exercise of his Constitutional right to remain silent and personal attacks that had no relevance except to influence the jury.
3. Spuehler U. State, 709 P.2d 202, 203-204 (Okl.Cr.1985).
4. Simpson v. State, 876 P.2d 701 (Okl.Cr.1994).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-408 - Conspiracy to Manufacture a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-402 - Unlawful Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1713 - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 47 § 6-303 - Driving While License is Suspended
• Okla. Stat. tit. 47 § 1151 - Operating a Vehicle with Expired Tag and Decal
• Okla. Stat. tit. 47 § 7-602 - Failure to Carry Security Verification
• Okla. Stat. tit. 21 § 1214 - Unlawful Possession of a Radio Set Capable of Receiving Law Enforcement Transmissions
• Okla. Stat. tit. 63 § 450.1 - Possession of a Controlled Dangerous Substance without a Tax Stamp

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, 709 P.2d 202 (Okl.Cr.1985)
• Simpson v. State, 876 P.2d 701 (Okl.Cr.1994)