Fredrick Demon Cleveland v The State of Oklahoma
F-2007-58
Filed: Jan. 1, 2008
Not for publication
Prevailing Party: Fredrick Demon Cleveland
Summary
Fredrick Demon Cleveland appealed his conviction for possession of drugs with the intention to distribute. The court affirmed his convictions for possession of cocaine with intent to distribute and possession of drug proceeds, giving him a total sentence of twenty years and six years for those counts. However, they reversed his conviction for possession of marijuana, stating that since both drugs were found together, it should be treated as one offense. Judge Lumpkin dissented, believing that the marijuana charge should have been upheld.
Decision
The Judgment and Sentence is AFFIRMED as to Counts I and II. The Judgment and Sentence on Count III is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there a violation of Mr. Cleveland's constitutional protection against Double Jeopardy due to convictions for both Possession of Cocaine with Intent to Distribute and Possession of Marijuana found in one container?
- Did the trial court erred by allowing a witness to testify to an ultimate issue of fact, invading the province of the jury?
- Was the evidence presented by the State sufficient to prove Mr. Cleveland's possession of cocaine base with intent to distribute, possession of marijuana, and possession of drug proceeds?
Findings
- the court erred, convictions for Possession of Cocaine with Intent to Distribute and Possession of Marijuana violated Double Jeopardy
- the court erred, the trial court abused its discretion by allowing improper opinion testimony but the error did not require reversal
- evidence was sufficient to support the convictions for Possession of Cocaine with Intent to Distribute and Possession of drug proceeds
- the conviction on Count III is reversed with instructions to dismiss
F-2007-58
Jan. 1, 2008
Fredrick Demon Cleveland
Appellantv
The State of Oklahoma
Appellee
v
The State of Oklahoma
Appellee
SUMMARY OPINION
Fredrick D. Cleveland was convicted after a jury trial in Oklahoma County District Court, Case No. CF-2006-4059, of Possession of a Controlled Dangerous Substance (Cocaine Base) with Intent to Distribute (Count I), Possession of Proceeds Derived from a Violation of the Uniform Controlled Dangerous Substance Act (Count II) and Possession of a Controlled Dangerous Substance (Marijuana) (Count III). Appellant was found guilty of Counts I and II, After Two or More Prior Felony Convictions and of Count III, After One Prior Felony Conviction. The jury assessed punishment at twenty years imprisonment on Count I, six years imprisonment on Count II and four years imprisonment on Count III. The trial court sentenced Appellant accordingly, ordering the sentences on Counts I and II to run consecutively with each other and the sentence on Count III to be served concurrently with Counts I and II. Appellant timely filed this appeal.
Appellant raises the following propositions of error:
1. Mr. Cleveland’s convictions for both Possession of Cocaine with Intent to Distribute and Possession of Marijuana violate his constitutional protection against Double Jeopardy, because the drugs were found in one container.
2. The trial court erred by allowing a witness to testify to an ultimate issue of fact, thereby invading the province of the jury.
3. The State presented insufficient evidence to prove that Mr. Cleveland possessed cocaine base with the intent to distribute, possessed marijuana, or that he possessed drug proceeds.
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 Mr. Cleveland’s Judgment and Sentence as to Counts I and II. Appellant’s Judgment and Sentence on Count III must be reversed with instructions to dismiss.
As to Proposition I, we find that Appellant’s Judgment and Sentence on Count III must be reversed with instructions to dismiss. Appellant’s possession of both cocaine base and marijuana within a single container, while violative of separate statutes, constituted a single act of possession. 21 O.S.2001, § 11.
We find in Proposition II that the opinion testimony complained of did not merely suggest inferences based upon the witness’ specialized knowledge as is permissible. See Romano v. State, 1995 OK CR 74, 1 21, 909 P.2d 92, 109. Rather, it told the jury what conclusion to reach and was, to this extent, improper. Accordingly, we find that the trial court abused its discretion in allowing this testimony over defense counsel’s objection. However, this error does not require reversal. Based upon the evidence properly presented at trial, including testimony about the inferences that could be fairly drawn from the weight and packaging of the cocaine and the amount and denominations of the 2 bills possessed by Appellant, this Court finds that the inadmissible statement was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Finally, we find that the evidence presented at trial was sufficient to support, beyond a reasonable doubt, each element of possession with the intent to distribute cocaine base and possession of drug proceeds. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04 (citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571(1979)).
DECISION
The Judgment and Sentence is AFFIRMED as to Counts I and II. The Judgment and Sentence on Count III is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE SUSAN P. CASWELL, DISTRICT JUDGE
APPEARANCES AT TRIAL
JOSEPH RUFFIN
ASSISTANT PUBLIC DEFENDER
320 ROBERT S. KERR
611 COUNTY OFFICE BUILDING
OKLAHOMA CITY, OK 73102
ATTORNEY FOR DEFENDANT
MATT DILLON
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR THE STATE
APPEARANCES ON APPEAL
KIM CHANDLER BAZE
ASSISTANT PUBLIC DEFENDER
320 ROBERT S. KERR
611 COUNTY OFFICE BUILDING
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
505 COUNTY OFFICE BUILDING
OKLAHOMA CITY, OK 73102
THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21st ST.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE
OPINION BY C. JOHNSON, V.P.J.
LUMPKIN, P.J.: CONCURS IN PART/DISSENTS IN PART
CHAPEL, J.: CONCURS
A. JOHNSON, J.: CONCURS
LEWIS, J.: CONCURS
LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART
I concur in the Court’s decision to affirm the judgments and sentences in Count I and II. However, I dissent to the decision to reverse and dismiss Count III. This case is distinguishable from our decision in Watkins v. State, 1991 OK CR 119, 829 P.2d 42, opinion on rehearing, 1992 OK CR 34, 855 P.2d 141. In Watkins, each of the drugs was prohibited under the statutory language of 63 O.S. 1991, § 2-401, and the statutory language did not make the possession of separate drugs under the statute separate offenses. I discussed this distinction in my specially concurring opinion in Lewis v. State, 2006 OK CR 48, P.3d where I explained:
As we explained in Watkins, the issue lies with the plain language of the statute in question, not with the applicability of double jeopardy or double punishment principles. With the publication of Watkins more than a decade ago, this Court put the Oklahoma Legislature on notice of how we would interpret the statute and what simple actions would need to be taken if the Legislature desired for separate charges to arise out of a single possession—that is, to amend each of the statutes to provide that possession of separate types of CDS at the same time constitutes separate offenses. Many years have come and gone since then, and the Legislature has declined to make those amendments, thereby confirming this Court’s interpretation. Legislatures, not Courts, prescribe the scope of punishment. See Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673, 677 74 L.Ed.2d 535 (1983). Until those amendments are made, this Court is bound to apply the plain language of the statutes.
In the present case, we are presented with a distinctly different factual and legal issue. The Oklahoma Legislature has exercised its constitutional authority and passed two separate statutes, i.e., 63 O.S. 2001, § 2-401 and 63 O.S. 2001, § 2-402, prohibiting different acts and creating separate crimes. The Legislature has clearly stated in this instance that the intent is to prosecute both crimes, even though the drugs were possessed at the same time and place. By the act of the Legislature, we are instructed that the provisions of 21 O.S. 2001, § 11 do not apply in this instance. Although the possession is at the same time and place, it is not the same act as defined by the Legislature. I would therefore affirm the judgment and sentence in Count III.
Footnotes:
- 21 O.S.2001, § 11
- 63 O.S. 1991, § 2-401
- 63 O.S. 2001, § 2-401
- 63 O.S. 2001, § 2-402
- Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673, 677 74 L.Ed.2d 535 (1983)
- Romano v. State, 1995 OK CR 74, 1 21, 909 P.2d 92, 109
- Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
- Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04 (citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571(1979))
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 11 (2001) - Offenses Against the Person
- Okla. Stat. tit. 63 § 2-401 (2001) - Uniform Controlled Dangerous Substances Act
- Okla. Stat. tit. 63 § 2-402 (2001) - Uniform Controlled Dangerous Substances Act
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:
- Romano v. State, 1995 OK CR 74, I 21, 909 P.2d 92, 109
- Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
- Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
- Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979)
- Watkins v. State, 1991 OK CR 119, 829 P.2d 42
- Watkins v. State, 1992 OK CR 34, 855 P.2d 141
- Lewis v. State, 2006 OK CR 48, P.3d
- Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673, 677, 74 L.Ed.2d 535 (1983)