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FILED IN THE COURT OF CRIMINAL OFFORINANES OF THE ARREALS STATE OF OKLAHOMA STATE OF OKLAHOMA MAR 2 9 2004 TOMMY W. MULLINS, MICHAEL $. RICHIE Appellant, CLERK NOT FOR PUBLICATION V. ) Case No. F-2003-505 ) THE STATE OF OKLAHOMA, ) ) Appellee.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.2 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 ATTORNEYS ON APPEAL DONALD HERRING LEE ANN JONES PETERS SUITE 1100 P.O. BOX 926 5900 MOSTELLER DRIVE NORMAN, OKLAHOMA 73070 OKLAHOMA CITY, OK 73112 ATTORNEY FOR APPELLANT MAX E. HOSKINS W.A. DREW EDMONDSON 608 SOUTHWEST D. AVENUE ATTORNEY GENERAL OF OKLAHOMA LAWTON, OKLAHOMA 73501 JENNIFER J. DICKSON ATTORNEYS FOR DEFENDANT ASSISTANT ATTORNEY GENERAL 112 STATE CAPITOL BUILDING EDDIE D. VALDEZ OKLAHOMA CITY, OKLAHOMA 73104 ASSISTANT DISTRICT ATTORNEY ATTORNEYS FOR APPELLEE COMANCHE COUNTY COURTHOUSE 300 SOUTHWEST 5TH STREET LAWTON, OKLAHOMA 73501 ATTORNEY FOR THE STATE 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. 2 OPINION BY: CHAPEL, J. JOHNSON, P.J.: CONCUR LILE, V.P.J.: CONCUR LUMPKIN, J.: CONCUR STRUBHAR, J.: CONCUR 3

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