Ronnie Lamonte Lister v State Of Oklahoma

F-2008-260

Filed: Apr. 16, 2009

Not for publication

Prevailing Party: State Of Oklahoma

Summary

# Ronnie Lamonte Lister appealed his conviction for Trafficking in Illegal Drugs, Possession of a Firearm During Commission of a Felony, and Possession of a Firearm After Former Conviction of a Felony. Conviction and sentence affirmed for Counts I and III, but Count II was reversed with instructions to dismiss. Judge Johnson dissented.

Decision

The Judgments and Sentences in Counts I and III are AFFIRMED. The Judgment and Sentence in Count II is REVERSED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there sufficient evidence to connect Appellant to either firearm or the drugs, thus determining if the three convictions can stand?
• Did the trial court err by admitting evidentiary harpoons or evidence far more prejudicial than probative through Seay's testimony, and should requests for a mistrial have been granted?

Findings

• the evidence was sufficient to support a conviction for Trafficking in Illegal Drugs.
• the evidence was insufficient to support the conviction for Possession of a Firearm During Commission of a Felony; thus, Count II is reversed with instructions to dismiss.
• the evidence was sufficient to support a conviction for Possession of a Firearm After Former Conviction of a Felony or During Probation.
• Ms. Seay did not improperly interject evidentiary harpoons into the trial, and the trial court's admonishment was sufficient to cure any error.

F-2008-260

Apr. 16, 2009

Ronnie Lamonte Lister

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant Ronnie Lamonte Lister was tried by jury and convicted of Trafficking in Illegal Drugs (Count I) (63 O.S.Supp. 2004, § 2-415); Possession of a Firearm During Commission of a Felony (Count II) (21 O.S.Supp.2006, § 1287), and Possession of a Firearm After Former Conviction of a Felony or During Probation (Count III) (21 O.S.Supp.2005, § 1283), Case No. CF-2007-9 in the District Court of Stephens County. The jury recommended as punishment twenty-five (25) years imprisonment and a $35,000 fine in Count I, ten (10) years imprisonment and a $10,000 fine in each of Counts II and III. The trial court sentenced accordingly, ordering the sentences in Counts I and II to run consecutively and the sentence in Count III to run concurrently with Count II. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. Insufficient evidence existed to connect Appellant to either firearm or the drugs, thus none of the three convictions can stand.

II. Evidentiary harpoons or evidence far more prejudicial than probative was admitted through Seay’s testimony; the defense requests for a mistrial should have been granted.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification is warranted under the law and the evidence as to Counts I and III. However, we find Count II must be reversed with instructions to dismiss.

In Proposition I, we find the evidence was sufficient to prove Appellant constructively possessed the illegal drugs found in the house. See Hill v. State, 1995 OK CR 28, ¶ 34, 898 P.2d 155, 166. Further, we find Ms. Seay’s testimony was sufficiently corroborated by the physical evidence (discovery of the key near where Appellant and Bowling had been seated which opened the black box, the discovery of the cocaine on the floor near where Appellant had been seated, and the discovery of the black box in the master bedroom) and by the testimony of Ms. Martin. See Glossip v. State, 2007 OK CR 12, ¶¶ 40 – 42, 157 P.2d 142, 152. Viewing the evidence in the light most favorable to the State, a rational trier of fact could find Appellant constructively possessed the drugs and the evidence was sufficient to support a conviction for Trafficking in Illegal Drugs. See Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559.

In Count II, Appellant was charged with possession of the .38 special revolver found on the couch. As Appellant’s associate, Mr. Bowling, was observed sitting on the weapon, we find the evidence insufficient to show that Appellant had any dominion or control over the gun. See Kinchion v. State, 2003 OK CR 28, ¶ 12, 81 P.3d 681, 685; Pebworth v. State, 1933 OK CR 28, ¶ 12, 855 P.2d 605, 607. Therefore, the evidence was insufficient to support the conviction and Count II should be reversed with instructions to dismiss.

In Count III, Appellant was charged with possession of the 9 mm weapon found in the bathroom of the house. The evidence was sufficient to find Appellant constructively possessed that weapon. See Hancock v. State, 2007 OK CR 9, ¶ 115, 155 P.3d 796, 823.

In Proposition II, we find Ms. Seay did not improperly interject evidentiary harpoons into the trial. Her statement concerning alleged gang activity was made in response to questioning from the prosecutor, it did not contain information about another crime, and it did not unfairly prejudice Appellant. See Riley v. State, 1997 OK CR 51, ¶ 9, 947 P.2d 530, 533; Bruner v. State, 1980 OK CR 52, ¶¶ 16 – 17, 612 P.2d 1375, 1378-79. The other challenged statement by Ms. Seay was met with an admonishment by the trial court to the jury to disregard the comment. This admonishment was sufficient to cure any error. See Welch v. State, 2000 OK CR 8, ¶ 26, 2 P.3d 356, 369-370.

DECISION

The Judgments and Sentences in Counts I and III are AFFIRMED. The Judgment and Sentence in Count II is REVERSED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-415
2. Okla. Stat. tit. 21 § 1287
3. Okla. Stat. tit. 21 § 1283
4. Hill v. State, 1995 OK CR 28, I 34, 898 P.2d 155, 166.
5. Glossip v. State, 2007 OK CR 12, III 40 - 42, 157 P.2d 142, 152.
6. Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559.
7. Kinchion v. State, 2003 OK CR 28, IT 12, 81 P.3d 681, 685.
8. Pebworth v. State, 1933 OK CR 28, 12, 855 P.2d 605, 607.
9. Hancock v. State, 2007 OK CR 9, 1 115, 155 P. 3d 796, 823.
10. Riley v. State, 1997 OK CR 51, IT 9, 947 P.2d 530, 533.
11. Bruner v. State, 1980 OK CR 52, 16 - 17, 612 P.2d 1375, 1378-79.
12. Welch v. State, 2000 OK CR 8, I 26, 2 P.3d 356, 369-370.
13. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2004) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 21 § 1287 (2006) - Possession of a Firearm During Commission of a Felony
• Okla. Stat. tit. 21 § 1283 (2005) - Possession of a Firearm After Former Conviction of a Felony or During Probation
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for a Felony

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:

• Hill v. State, 1995 OK CR 28, I 34, 898 P.2d 155, 166.
• Glossip v. State, 2007 OK CR 12, III 40 - 42, 157 P.2d 142, 152.
• Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559.
• Kinchion v. State, 2003 OK CR 28, IT 12, 81 P.3d 681, 685.
• Pebworth v. State, 1933 OK CR 28, 12, 855 P.2d 605, 607.
• Hancock v. State, 2007 OK CR 9, 1 115, 155 P. 3d 796, 823.
• Riley v. State, 1997 OK CR 51, IT 9, 947 P.2d 530, 533.
• Bruner v. State, 1980 OK CR 52, 16 - 17, 612 P.2d 1375, 1378-79.
• Welch v. State, 2000 OK CR 8, I 26, 2 P.3d 356, 369-370.