Johnny L. Perry v The State Of Oklahoma

F-2003-44

Filed: Dec. 3, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Johnny L. Perry appealed his conviction for possession of a controlled substance (cocaine) and possession of a firearm in the commission of a felony. His conviction and sentence were modified; the first conviction was reversed, and the second was changed to "Possession of a Firearm After Conviction of a Felony" with a five-year sentence. Judge Lile dissented.

Decision

Count 1 is REVERSED WITH INSTRUCTIONS TO DISMISS. As to Count 2, the judgment is MODIFIED to Possession of a Firearm After Conviction of a Felony, After Conviction of Two or More Felonies, and the sentence on Count 2 is MODIFIED to five (5) years imprisonment.

Issues

• was there sufficient evidence to prove beyond a reasonable doubt that Appellant knowingly and intentionally possessed cocaine?
• was there sufficient evidence to prove beyond a reasonable doubt that Appellant possessed a firearm in the commission of a felony?
• did the trial court's failure to instruct the jury on the proper punishment range on Count 2 require sentence modification or resentencing?
• did cumulative error deny Appellant a fundamentally fair trial?

Findings

• the court erred, evidence was not sufficient to prove beyond a reasonable doubt that Appellant knowingly and intentionally possessed cocaine
• the judgment in Count 2 is modified to Possession of a Firearm After Conviction of a Felony, After Conviction of Two or More Felonies
• the sentence on Count 2 is modified to five (5) years imprisonment
• Proposition 3 is rendered moot
• no cumulative error denied Appellant a fundamentally fair trial

F-2003-44

Dec. 3, 2003

Johnny L. Perry

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL B. JOHNSON, PRESIDING JUDGE:

Appellant, Johnny L. Perry, was convicted after jury trial in Oklahoma County District Court, Case No. CF-2002-526, of Count 1: Possession of a Controlled Substance (Cocaine) (63 O.S.2001, § 2-401) and Count 2: Possession of a Firearm in the Commission of a Felony (21 O.S.2001, § 1287), both after conviction of two or more felonies (21 O.S.2001, § 51.1). The jury recommended sentences of twenty years imprisonment on each count. On January 8, 2003, the Honorable Tammy Bass-Jones, District Judge, sentenced Appellant in accordance with the jury’s recommendation, ordering the sentences to be served concurrently. Appellant then timely filed this appeal.

Appellant raises the following propositions of error:

1. The evidence was insufficient to prove beyond a reasonable doubt that Appellant knowingly and intentionally possessed cocaine.
2. The evidence was insufficient to prove beyond a reasonable doubt that Appellant possessed a firearm in the commission of a felony.
3. The trial court’s failure to instruct the jury on the proper punishment range on Count 2 requires sentence modification or resentencing.
4. Cumulative error denied Appellant a fundamentally fair trial.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we reverse in part and modify in part. As to Proposition 1, considering all of the evidence in a light most favorable to the State, we conclude that the evidence supported other reasonable hypotheses besides Appellant’s joint constructive possession of drugs. Doyle v. State, 1988 OK CR 147, ¶ 8, 759 P.2d 223, 225. Consequently, Appellant’s conviction on Count 1 is REVERSED WITH INSTRUCTIONS TO DISMISS.

As to Proposition 2, regarding Count 2, we conclude that the only reasonable hypothesis supported by the evidence was that Appellant possessed a firearm. While it may not have been possessed in the commission of a drug offense, Appellant stipulated to the fact that he had three prior felony convictions. We therefore MODIFY the judgment in Count 2 to Possession of a Firearm After Conviction of a Felony, After Conviction of Two or More Felonies (21 O.S.2001, §§ 1283, 1284, 51.1(C)), and MODIFY the sentence to five (5) years imprisonment. 22 O.S.2001, § 1066; McArthur v. State, 1993 OK CR 48, ¶ 10, 862 P.2d 482, 485; Snyder v. State, 1989 OK CR 81, ¶ 4, 806 P.2d 652, 654. Our resolution of Proposition 2 renders Proposition 3 moot.

As to Proposition 4, we find no prosecutorial misconduct or other trial error, and therefore no cumulative error regarding the same. 1 Sanders v. State, 2002 OK CR 42, ¶ 17, 60 P.3d 1048, 1051. Specifically, we find (1) the prosecutor’s rhetorical questions did not shift the burden of proof to Appellant, and his assessments of the defense theory did not disparage Appellant or defense counsel; all of these were fair comments on the evidence, see Money v. State, 1985 OK CR 46, ¶ 13, 700 P.2d 204, 207; (2) the only comment Appellant actually objected to at trial was cured by objection, and could not have affected the outcome as it was made in the punishment stage and the jury assessed the minimum sentence, see id; (3) the prosecutor’s comment invoking racial issues was merely a response to defense counsel’s own invocation of these issues in her preceding argument, see Depew v. State, 1981 OK CR 61, ¶ 4, 628 P.2d 1174, 1175; and (4) the trial court properly excluded, as irrelevant to the punishment stage, evidence that one of Appellant’s co-defendants had pled guilty and received a five-year sentence, see Brogie v. State, 1985 OK CR 2, ¶ 39, 695 P.2d 538, 546-47; 12 O.S.2001, § 2401.

DECISION

Count 1 is REVERSED WITH INSTRUCTIONS TO DISMISS. As to Count 2, the judgment is MODIFIED to Possession of a Firearm After Conviction of a Felony, After Conviction of Two or More Felonies, and the sentence on Count 2 is MODIFIED to five (5) years imprisonment.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE TAMMY BASS-JONES, DISTRICT JUDGE

APPEARANCES AT TRIAL
JANET COX
WENDELL B. SUTTON
IRENE RANDOLPH
ASSISTANT PUBLIC DEFENDER
ASSISTANT PUBLIC DEFENDERS
320 ROBERT S. KERR, ROOM 611
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

APPEARANCES ON APPEAL
STEVE ALCORN
W. A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
320 ROBERT S. KERR, ROOM 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR THE STATE

TONYA GUINN
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY JOHNSON, P.J.
LILE, V.P.J.: CONCURS IN RESULTS
LUMPKIN, J.: CONCURS IN RESULTS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS

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Footnotes:

1. 63 O.S.2001, § 2-401
2. 21 O.S.2001, § 1287
3. 21 O.S.2001, § 51.1
4. 22 O.S.2001, § 1066
5. 21 O.S.2001, §§ 1283, 1284, 51.1(C)
6. 60 P.3d 1048, 1051
7. 700 P.2d 204, 207
8. 628 P.2d 1174, 1175
9. 695 P.2d 538, 546-47
10. 12 O.S.2001, § 2401

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2001) - Possession of a Controlled Substance
• Okla. Stat. tit. 21 § 1287 (2001) - Possession of a Firearm in the Commission of a Felony
• Okla. Stat. tit. 21 § 51.1 (2001) - After Conviction of Two or More Felonies
• Okla. Stat. tit. 21 § 1283 (2001) - Possession of a Firearm After Conviction of a Felony
• Okla. Stat. tit. 21 § 1284 (2001) - Possession of a Firearm After Conviction of Two or More Felonies
• Okla. Stat. tit. 22 § 1066 (2001) - Sentencing Procedures
• Okla. Stat. tit. 12 § 2401 (2001) - Relevant Evidence

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:

• Doyle v. State, 1988 OK CR 147, I 8, 759 P.2d 223, 225
• McArthur v. State, 1993 OK CR 48, I 10, 862 P.2d 482, 485
• Snyder v. State, 1989 OK CR 81, I 4, 806 P.2d 652, 654
• Sanders v. State, 2002 OK CR 42, I 17, 60 P.3d 1048, 1051
• Money v. State, 1985 OK CR 46, I 13, 700 P.2d 204, 207
• Depew v. State, 1981 OK CR 61, I 4, 628 P.2d 1174, 1175
• Brogie v. State, 1985 OK CR 2, I 39, 695 P.2d 538, 546-47