Tommy W. Mullins v The State Of Oklahoma

F-2003-505

Filed: Mar. 29, 2004

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Tommy Mullins appealed his conviction for Maintaining a Place for Keeping/Selling Controlled Substances. His conviction and sentence were reversed, and he was ordered to have a new trial. Judge Strubhar dissented.

Decision

The Judgment and Sentence for Maintaining a Place for the Keeping/Selling of Controlled Substances is REVERSED and REMANDED for a new trial.

Issues

• Was there a failure to ask the jury to determine whether the defendant "knowingly or intentionally" maintained a place where controlled substances are kept?
• Did the penalty imposed exceed the maximum penalty permitted for the crime of which Mr. Mullins was convicted?
• Was the jury incorrectly instructed on the elements necessary for felony conviction of Maintaining a Place for Keeping/Selling Controlled Substances?
• Is a new trial required due to the erroneous jury instructions?

Findings

• The court erred in the jury instructions regarding the elements necessary for felony conviction of Maintaining a Place for Keeping/Selling Controlled Substances.
• A new trial is required due to the jury being incorrectly instructed.
• The Judgment and Sentence is reversed and remanded for a new trial.

F-2003-505

Mar. 29, 2004

Tommy W. Mullins

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE:

Tommy Mullins was tried by jury and convicted of Maintaining a Place for Keeping/Selling Controlled Substances in violation of 63 O.S.2001, § 2-404 in Comanche County District Court Case No. CF-2002-542. In accordance with the jury’s recommendation, the Honorable Keith B. Aycock sentenced Mullins to five (5) years’ imprisonment and a $10,000.00 fine. Mullins appeals this Judgment and Sentence. Mullins raises the following proposition of error:

I. Because the jury was not asked to determine whether the defendant knowingly or intentionally maintained a place where controlled substances are kept, the maximum penalty was a $1,000 civil fine; the penalty imposed, five years’ imprisonment and a $10,000 fine, exceeds the penalty permitted for the crime of which Mr. Mullins was convicted.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that reversal is required by the law and evidence. We find in Proposition I that a new trial is required because the jury was incorrectly instructed on the elements necessary for felony conviction of Maintaining a Place for Keeping/Selling Controlled Substances.

Decision

The Judgment and Sentence for Maintaining a Place for the Keeping/Selling of Controlled Substances is REVERSED and REMANDED for a new trial.

ATTORNEYS AT TRIAL

DONALD HERRING
LIE ANN JONES PETERS
SUITE 1100
P.O. BOX 926
5900 MOSTELLER DRIVE
NORMAN, OKLAHOMA 73070

ATTORNEYS ON APPEAL

MAX E. HOSKINS
W.A. DREW EDMONDSON
608 SOUTHWEST D. AVENUE
LAWTON, OKLAHOMA 73501

JENNIFER J. DICKSON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73104

EDDY D. VALDEZ
ASSISTANT DISTRICT ATTORNEY
COMANCHE COUNTY COURTHOUSE
300 SOUTHWEST 5TH STREET
LAWTON, OKLAHOMA 73501

1 The jury acquitted Mullins of Count I: Trafficking in Illegal Drugs and the trial court sustained Mullins’s demurrer to Count III: Possession of a Controlled Substance without a Tax Stamp Affixed.

2 63 O.S. 2001, § 2-404 and OUJI-CR 2d Supp. 2000 6-12. Section 2-404(B) provides: Any person who violates this section is punishable by a civil fine of not more than One Thousand Dollars ($1,000.00); provided, that, if the violation is prosecuted by an information or indictment which alleges that the violation was committed knowingly or intentionally, and the trier of fact specifically finds that the violation was committed knowingly or intentionally, such person is guilty of a felony[.] Here, the instruction given to the jury omitted the knowingly or intentionally element required for a felony conviction, and required of the finder of fact.

OPINION BY: CHAPEL, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR
STRUBHAR, J.: CONCUR

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Footnotes:

1. 63 O.S. 2001, § 2-404 and OUJI-CR 2d Supp. 2000 6-12.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-404 (2001) - Maintaining a Place for Keeping/Selling Controlled Substances

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:

No case citations found.