Victor Allen Martin v The State Of Oklahoma

F-2007-269

Filed: Dec. 4, 2007

Not for publication

Prevailing Party: Victor Allen Martin

Summary

Victor Allen Martin appealed his conviction for multiple drug-related charges. Conviction and sentence were confirmed, totaling 85 years for two counts of methamphetamine possession, 10 years for marijuana possession, and 1 year for drug paraphernalia, all to be served at the same time. Judge Chapel and other justices agreed, but Judge Lumpkin and others dissented on certain points.

Decision

Martin's Count II conviction for Possession of CDS (Methamphetamine) Without Tax Stamp Affixed, AF2CF, is REVERSED and DISMISSED. Martin's other convictions and sentences are all AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there insufficient evidence to support Martin's conviction for possession of methamphetamine without affixing a tax stamp?
• Did the trial court's instructions fail to require that the jury find Martin was a dealer required to comply with the tax stamp act?
• Was it error to enhance Martin's punishment on Counts I and II given that the State only alleged prior convictions as to Count III?
• Was there insufficient evidence presented that Martin had the intent to distribute methamphetamine?
• Did the admission of "other crimes" evidence deprive Martin of a fair trial?
• Was there ineffective assistance of counsel that deprived Martin of a fair trial?

Findings

• The court erred in affirming Martin's conviction for Possession of CDS (Methamphetamine) Without Tax Stamp Affixed, as the evidence was not sufficient to support a conviction.
• Martin's jury instruction challenge was rendered moot by the resolution of Proposition I.
• There was no plain error in enhancing Martin's punishment on Counts I and II, as he was adequately informed of the charges.
• The evidence was sufficient to support Martin's conviction for possession of methamphetamine with intent to distribute.
• There was no plain error in the admission of other crimes evidence, and Martin was not prejudiced by it.
• Martin's claims of ineffective assistance of counsel were rejected as he failed to establish prejudice.
• Martin's Count II conviction is REVERSED and DISMISSED, while his other convictions and sentences are AFFIRMED.

F-2007-269

Dec. 4, 2007

Victor Allen Martin

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Victor Allen Martin was tried by jury and convicted of Possession of Controlled Dangerous Substance (Methamphetamine) with Intent to Distribute, After Two or More Felony Convictions, under 63 O.S.Supp.2004, § 2-401(A)(1) (Count I); Possession of CDS (Methamphetamine) Without Tax Stamp Affixed, AF2CF, under 68 O.S.2001, § 450.1 (Count II); Possession of Marijuana, Second and Subsequent Offense, under 63 O.S.Supp.2005, § 2-402 (Count III); and Unlawful Possession of Drug Paraphernalia, under 63 O.S.2001, § 2-405 (Count IV), in Payne County, Case No. CF-2005-852. In accordance with the jury’s recommendation, the Honorable Donald L. Worthington sentenced Martin to imprisonment for eighty-five (85) years on Count I, eighty-five (85) years on Count II, ten (10) years on Count III, and imprisonment for one year in the county jail on Count IV, to be served concurrently. Martin appeals his convictions and his sentences.

Martin raises the following propositions of error:

I. MR. MARTIN’S CONVICTION FOR POSSESSION OF METHAMPHETAMINE WITHOUT AFFIXING A TAX STAMP MUST BE REVERSED BECAUSE THE EVIDENCE SHOWED THERE WAS LESS THAN ONE GRAM OF METHAMPHETAMINE, RATHER THAN THE 7 GRAMS NECESSARY TO SUPPORT A CONVICTION.

II. APPELLANT’S CONVICTION FOR FAILURE TO AFFIX A TAX STAMP MUST BE REVERSED BECAUSE THE TRIAL COURT’S INSTRUCTIONS FAILED TO REQUIRE THAT THE JURY FIND APPELLANT WAS A DEALER WHO WAS REQUIRED TO COMPLY WITH THE TAX STAMP ACT.

III. BECAUSE THE STATE ONLY ALLEGED THAT MR. MARTIN HAD SUFFERED PRIOR CONVICTIONS AS TO THE OFFENSE CHARGED IN COUNT 3, IT WAS ERROR TO ENHANCE MR. MARTIN’S PUNISHMENT ON COUNTS 1 AND 2.

IV. THE STATE PRESENTED INSUFFICIENT EVIDENCE THAT MR. MARTIN HAD THE INTENT TO DISTRIBUTE METHAMPHETAMINE.

V. OTHER CRIMES EVIDENCE DEPRIVED APPELLANT OF A FAIR TRIAL.

VI. INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED APPELLANT OF A FAIR TRIAL.

Regarding Proposition I, the State concedes that Martin’s Count II conviction for possessing methamphetamine without affixing a tax stamp must be reversed, because a tax stamp is only required if a dealer possesses at least seven grams of methamphetamine (or other CDS other than marijuana). The State’s evidence did not establish that Martin possessed this much. Hence Martin’s conviction on Count II must be reversed and dismissed.

Regarding Proposition II, Martin’s jury instruction challenge is rendered moot by this Court’s resolution of Proposition I.

Regarding Proposition III, although the second page of the Information could have been more specific, Martin was adequately and fully informed that he was being charged AF2CF in relation to both Counts I and II. Martin never raised any objection to the Information, and the record clearly shows that he and his counsel understood that the State was charging him with the listed felony offenses (to which he stipulated) in order to enhance his sentences on Counts I and II. There is no plain error, and this claim is rejected accordingly.

Regarding Proposition IV, the evidence presented during Martin’s trial was sufficient to support his conviction for possession of methamphetamine with intent to distribute. This claim is rejected accordingly.

In Proposition V, Martin raises four challenges involving improper other crimes evidence. Martin did not object to any of this evidence at trial. The ten morphine pills were discovered in the search of Martin’s bedroom. There was no plain error in the brief references to the pills, nor has Martin established that he was prejudiced thereby. The evidence about the drug dog alerting to Martin’s truck came up during testimony by Deputy Paul Fox about where Martin lived. There was no plain error in the admission of this evidence, particularly since Fox noted that no drugs were found in the truck. Martin did not testify during the guilt stage of his trial. During his second-stage testimony, the prosecutor cross-examined him about additional drug charges that were filed against him after he was released on bond and the fact that he missed certain court appearances in the case. There was no objection to this questioning, and it could not have affected Martin’s convictions, since the jury had already convicted him. Similarly, the description of Martin as a habitual criminal and the comment that his liver condition could have been caused by his own methamphetamine use—during the prosecutor’s final, second-stage closing arguments—could not possibly have affected Martin’s convictions. Furthermore, the remarks were permissible commentary on the evidence presented and the arguments of defense counsel. There was no plain error. Hence this claim is rejected entirely.

In Proposition VI, Martin asserts various examples of alleged ineffective assistance of counsel. It should be noted that defense counsel’s main focus at trial was attempting to undermine the State’s overall case, by challenging the State’s evidence that Martin lived at 1304 1/2 South Fern Street. And counsel’s efforts in this regard were reasonable and persistent. While defense counsel may have failed to challenge some testimony that was objectionable and stumbled on some basic trial techniques, Martin utterly fails to establish that he was prejudiced thereby. This claim is rejected accordingly.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Count II must be reversed, as conceded by the State, but that reversal of Martin’s other convictions is not required under the law and evidence.

Decision

Martin’s Count II conviction for Possession of CDS (Methamphetamine) Without Tax Stamp Affixed, AF2CF, is REVERSED and DISMISSED. Martin’s other convictions and sentences are all AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. See 68 O.S.2001, § 450.1(2) (defining "dealer" as person who possesses over 42.5 grams of marijuana, 7 or more grams of any other illegal drug, or 10 or more dosage units of illegal drugs not sold by weight).
2. See Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04 (quoting Jackson).
3. See generally Burks v. State, 1979 OK CR 10, 594 P.2d 771, overruled in part on other grounds by Jones v. State, 1989 OK CR 7, ¶ 8, 772 P.2d 922, 925.
4. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (ineffective assistance requires showing of deficient performance and resulting prejudice).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2004) - Possession of Controlled Dangerous Substance with Intent to Distribute
• Okla. Stat. tit. 68 § 450.1 (2001) - Possession of CDS Without Tax Stamp Affixed
• Okla. Stat. tit. 63 § 2-402 (2005) - Possession of Marijuana, Second and Subsequent Offense
• Okla. Stat. tit. 63 § 2-405 (2001) - Unlawful Possession of Drug Paraphernalia

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:

• Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
• Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04
• Burks v. State, 1979 OK CR 10, 594 P.2d 771
• Jones v. State, 1989 OK CR 7, II 8, 772 P.2d 922, 925
• Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)