Morton D. Hayner v The State Of Oklahoma

F-2005-314

Filed: May 1, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

#Hayner appealed his conviction for the manufacture of a controlled dangerous substance (methamphetamine). Conviction and sentence modified to attempting to manufacture methamphetamine, but overall sentence was affirmed. Judge Lumpkin dissented.

Decision

Hayner's CONVICTION for Unlawfully Manufacturing Methamphetamine is MODIFIED to Attempting to Unlawfully Manufacture Methamphetamine. As SO modified, Hayner's Judgment and Sentence is AFFIRMED. Pursuant to Rule 3. 15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was the conviction for the manufacture of a controlled dangerous substance supported by sufficient evidence under the due process clause of the United States Constitution?
• did the trial court err by failing to instruct on lesser included offenses, thereby violating the Appellant's rights to due process under the federal constitution?
• was the punishment imposed by the trial court, including a fine of $50,000.00, excessive given the Appellant's indigence?

Findings

• Conviction for Unlawfully Manufacturing Methamphetamine modified to Attempting to Unlawfully Manufacture Methamphetamine.
• Trial court did not err in failing to instruct on lesser-included offenses.
• Fine of $50,000.00 was not excessive despite the Appellant's indigence.

F-2005-314

May 1, 2006

Morton D. Hayner

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Morton D. Hayner was tried by jury and convicted of Manufacture of a Controlled Dangerous Substance (methamphetamine) in violation of 63 O.S. Supp. 2003, §2-401, After Former Conviction of two or more Felonies in Kingfisher County District Court Case No. CF-2004-9. In accordance with the jury’s recommendation, the Honorable Susie Pritchett sentenced Hayner to life imprisonment and a $50,000.00 fine. Hayner has perfected his appeal to this Court.

Hayner raises the following propositions of error:

I. The Appellant’s conviction for the manufacture of a controlled dangerous substance is based upon insufficient evidence under the due process clause of the United States Constitution because no rational trier of fact could find that methamphetamine was manufactured.

II. The failure of the trial court to instruct on the lesser included offenses of Attempted Manufacture of Methamphetamine, Endeavoring to Manufacture Methamphetamine, or Possession of Precursors for Methamphetamine, constitutes reversible error which violates the Appellant’s rights to due process under the federal constitution.

III. The punishment imposed by the trial court which included a fine of $50,000.00 was excessive.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that modification is required under the law and evidence. We find in Proposition I that Hayner’s conviction for Unlawfully Manufacturing Methamphetamine is modified to Attempting to Unlawfully Manufacture Methamphetamine. We find in Proposition II that Hayner was not denied any lesser-included offense instructions. We find in Proposition III that Hayner’s indigence does not render his fine excessive.

Hayner correctly asserts that there was no proof that he manufactured methamphetamine. The evidence established that Hayner was attempting to manufacture methamphetamine but had not completed the process when the search was conducted. As a result, Hayner should not have been convicted of manufacturing but rather attempting to manufacture. The evidence overwhelmingly establishes Hayner’s guilt for this offense. He had the ingredients and necessary items to make methamphetamine, and had created a lab in the bedroom closet. Moreover, he admitted that it was his methamphetamine lab in the closet in a written statement to police. As a result, this Court modifies Hayner’s conviction in the Judgment from Unlawfully Manufacturing Methamphetamine to Attempting to Unlawfully Manufacture Methamphetamine. A modification of the sentence is not required as both offenses are prohibited by the same statute and have the same range of punishment.

Hayner argues that the trial court erred in failing to instruct on the lesser-included offenses of attempting to manufacture methamphetamine, possession of precursors, or endeavoring to manufacture methamphetamine. Each of these offenses criminalizes some aspect of the production process, and each requires slightly different evidence to convict. However, the legislature has made all these offenses punishable in identical fashion. 63 O.S. Supp. 2003, § 2-401(G) and 63 O.S. 2001, § 2-408. Thus, the legislature has created an area where there are no lesser-included offenses but merely alternative ones by mandating that a defendant will be subject to the same punishment for participating in any aspect of the manufacture or attempted manufacture of methamphetamine. The jury imposed the minimum fine required for this offense. The fine is justified due to the severity of the offense.

Decision

Hayner’s CONVICTION for Unlawfully Manufacturing Methamphetamine is MODIFIED to Attempting to Unlawfully Manufacture Methamphetamine. As SO modified, Hayner’s Judgment and Sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 1 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL
DANIEL P. STAKE
E.A. GATES
ATTORNEY FOR THE DEFENDANT
ASSISTANT DISTRICT ATTORNEY

ATTORNEYS ON APPEAL
PATTI J. PALMER
W.A. DREW EDMONDSON
ATTORNEY FOR APPELLANT
ATTORNEY GENERAL OF OKLAHOMA

THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR THE STATE

**OPINION BY: CHAPEL, P.J.**
LUMPKIN, V.P.J.: CONCUR IN PART/DISSENT IN PART
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

LUMPKIN, VICE-PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

I agree with the Court’s decision to affirm the sentence in this case, but I must dissent to the decision to modify the conviction for manufacturing to attempted manufacturing. The evidence in this case shows Appellant was in the process of cooking or manufacturing the methamphetamine when the officers arrived. That this process was interrupted by the officers’ arrival does not reduce Appellant’s actions to a mere attempt to manufacture. Further, this Court has not required evidence of the finished or completed methamphetamine in order to sustain a conviction for manufacturing.

Where the evidence shows that all of the materials and ingredients necessary to manufacture methamphetamine are present and the chemical processes of extraction and synthesis have begun, the evidence has been found sufficient to support a conviction for manufacturing. I would therefore affirm the judgment as rendered.

Click Here To Download PDF

Footnotes:

1. 63 O.S. Supp. 2003, § 2-401.
2. McArthur v. State, 862 P.2d 482 (Okl.Cr. 1993) (this court has the power to modify the judgment to the offense supported by the evidence pursuant to 22 O.S.2001, § 1066).
3. 63 O.S. Supp. 2003, § 2-401(G) and 63 O.S.2001, § 2-408.
4. 63 O.S. Supp. 2003, § 2-401(G).
5. Vilandre v. State, 2005 OK CR 9, ¶ 6, 113 P.3d 893, 897.
6. Estes v. State, Case No. F-2004-939 (opinion not for publication, Sept. 27, 2005).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (Supp. 2003) - Manufacture of a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 1066 (2001) - Modification of Judgment
• Okla. Stat. tit. 63 § 2-408 (2001) - Possession with Intent to Manufacture

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:

• McArthur v. State, 862 P.2d 482 (Okl.Cr.1993)
• Vilandre v. State, 2005 OK CR 9, I 6, 113 P.3d 893, 897
• Estes v. State, Case No. F-2004-939