Andruss Lee Flowers v The State of Oklahoma

F-2006-1242

Filed: Jan. 15, 2008

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Andruss Lee Flowers appealed his conviction for trafficking in illegal drugs, unlawful possession of marijuana with intent to distribute, unlawful possession of paraphernalia, obstructing an officer, and possession of a firearm while in commission of a felony. His conviction and sentence were upheld on most counts, but the trafficking charge was changed to possession with intent to distribute. Judge Lumpkin dissented on modifying the trafficking charge.

Decision

The Judgment and Sentence of the district court is AFFIRMED as to Counts III, IV, V and VI. Appellant's Judgment and Sentence on Count I is MODIFIED to Possession with Intent to Distribute with ten years imprisonment and a $20,000.00 fine. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence of possession to support the verdicts in Counts I, III, IV, and VI?
• Was the evidence of drug quantity within Appellant's possession sufficient to support the verdict in Count I?

Findings

• The court affirmed the conviction for Unlawful Possession of Marijuana with Intent to Distribute (Count III).
• The court affirmed the conviction for Unlawful Possession of Paraphernalia (Count IV).
• The court affirmed the conviction for Obstructing an Officer (Count V).
• The court affirmed the conviction for Possession of a Firearm While in Commission of a Felony (Count VI).
• The court modified the conviction for Trafficking in Cocaine Base (Count I) to Possession with Intent to Distribute.
• The court modified the sentence on Count I to ten years imprisonment and a $20,000.00 fine.

F-2006-1242

Jan. 15, 2008

Andruss Lee Flowers

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, VICE-PRESIDING JUDGE:

Appellant, Andruss Lee Flowers, was convicted in the District Court of Tulsa County, Case No. CF-2006-1466, of the following crimes: Trafficking in Illegal Drugs (Count I); Unlawful Possession of Marijuana with Intent to Distribute (Count III); Unlawful Possession of Paraphernalia (Count IV); Obstructing an Officer (Count V); and Possession of a Firearm While in Commission of a Felony (Count VI).1 The jury assessed punishment as follows: fifteen years imprisonment and a $30,000 fine on Count I; two years imprisonment and a $7,000 fine on Count III; six months confinement and a $500 fine on Count IV; a $1,000 fine on Count V; and three years imprisonment and a $7,000 fine on Count VI. At sentencing, the trial court imposed judgment and sentence in accordance with the jury’s verdict ordering his sentences to run concurrently. From this Judgment and Sentence Appellant has perfected his appeal to this Court.

1 Count II, Failure to Obtain a Drug Tax Stamp, was dismissed prior to trial.

Appellant raises the following propositions of error:

1. Evidence of possession was insufficient to support the verdicts in Counts I, III, IV and VI.
2. Evidence of drug quantity within Appellant Flowers’ possession was insufficient to support the verdict in Count I.

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 affirm Appellant’s Judgment and Sentence on Counts III, IV, V and VI. We find that modification of Judgment and Sentence is required on Count I. With regard to errors raised in propositions I and II, we find that the evidence was sufficient to support Appellant’s conviction for Unlawful Possession of Marijuana with Intent to Distribute (Count III), Unlawful Possession of Paraphernalia (Count IV) and Possession of a Firearm while in Commission of a Felony (Count VI) beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 1 7, 709 P.2d 202, 203, citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.E.2d 560 (1979). However, because the evidence supports a finding that Appellant had constructive possession of only the cocaine base found on the coffee table and in the closet by his identification card, and the combined quantity of this cocaine base was 4.86 grams, his conviction for Trafficking in Cocaine Base (Count I) cannot stand.2 Accordingly, Appellant’s judgment on Count I is modified to the lesser offense of Possession with Intent to Distribute which was instructed upon and which is supported by the evidence beyond a reasonable doubt. His sentence on this count is modified to ten years imprisonment and a $20,000.00 fine.

DECISION

The Judgment and Sentence of the district court is AFFIRMED as to Counts III, IV, V and VI. Appellant’s Judgment and Sentence on Count I is MODIFIED to Possession with Intent to Distribute with ten years imprisonment and a $20,000.00 fine. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL
DAVID PHILLIPS
ASSISTANT PUBLIC DEFENDER
423 SOUTH BOULDER
TULSA, OK 74103
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
STEPHEN J. GREUBEL
ASSISTANT PUBLIC DEFENDER
423 SOUTH BOULDER, STE. 300
TULSA, OK 74103
ATTORNEY FOR APPELLANT

JASON RUSH
ASSISTANT DISTRICT ATTORNEY
500 SOUTH DENVER
TULSA, OK 74103
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21st ST.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, V.PJ.

LUMPKIN, P.J.: CONCURS IN PART/DISSENTS IN PART
CHAPEL, J.: CONCURS
A. JOHNSON, J.: CONCURS IN PART/DISSENTS IN PART
LEWIS, J.: CONCURS IN RESULTS

A. JOHNSON, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I concur in the majority’s decision to affirm Appellant’s Judgment and Sentence in Counts III, IV, V, and VI. I dissent, however, to the modification of the Judgment in Count I to the lesser offense of Possession with Intent to Distribute. Under the Spuehler test, which must guide our judgment here, there was sufficient circumstantial evidence to hold defendant responsible for all narcotics found and to require that we affirm this jury’s verdict on all counts. I am authorized to state that Judge Lumpkin joins in this opinion.

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Footnotes:

1. Count II, Failure to Obtain a Drug Tax Stamp, was dismissed prior to trial.
2. Spuehler v. State, 1985 OK CR 132, 1 7, 709 P.2d 202, 203, citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.E.2d 560 (1979).
3. 63 O.S.Supp.2004, 2-415(C)(7)(a).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2-415(C)(7)(a) - Drug 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, 1985 OK CR 132, 1 7, 709 P.2d 202, 203
• Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.E.2d 560 (1979)