Lewis William Roberson v The State Of Oklahoma

F-2009-398

Filed: Jun. 1, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Lewis William Roberson appealed his conviction for unlawful possession of controlled substances. Conviction and sentence were upheld for the first charge of possessing Phencyclidine, but the second charge for Marijuana was reversed and dismissed. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED as to Count 1, and REVERSED and REMANDED with instructions to DISMISS Count 2. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the evidence obtained from an unlawful search and seizure in violation of the Fourth Amendment and corresponding provisions of the Oklahoma Constitution?
• Did Mr. Roberson's simultaneous possession of Phencyclidine and Marijuana constitute a single act of possession that violated his protection against double jeopardy?

Findings

• the trial court did not abuse its discretion regarding the search issue
• the conviction on count two must be reversed with instructions to dismiss
• the judgment and sentence of the district court is affirmed as to count one

F-2009-398

Jun. 1, 2010

Lewis William Roberson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE:

Lewis William Roberson, Appellant, was tried by jury and found guilty of, count one, Unlawful Possession of a Controlled Substance (Phencyclidine) with Intent to Distribute and, count two, Unlawful Possession of a Controlled Substance (Marijuana) with Intent to Distribute, both in violation of 63 O.S.Supp.2005, §2-401(B)(2), after former conviction of two or more felonies, in Oklahoma County District Court, Case No. CF-2007-3443, before the Honorable Kenneth C. Watson, District Judge. The jury sentenced Roberson to thirty (30) years imprisonment on each count. Judge Watson imposed judgment and sentence accordingly and ordered that the sentences be served concurrently.

Mr. Roberson appeals in the following propositions of error:

1. Because the evidence admitted in this case was obtained as the result of an unlawful search and seizure in violation of the Fourth Amendment of the United States Constitution and Corresponding provisions of the Oklahoma Constitution, the evidence should have been suppressed and the charge dismissed.

2. Mr. Roberson’s simultaneous possession of Phencyclidine and Marijuana is a single act of possession and conviction for both violates Section 11 and Appellant’s constitutional protection against double jeopardy under Davis v. State, Watkins v. State and Lewis v. State.

After thorough consideration of Roberson’s propositions of error and the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we have determined that count one of the Judgment and Sentence of the district court shall be affirmed; count two shall be reversed and remanded with instructions to dismiss. We find, in proposition one that we review the search issue for an abuse of discretion. State v. Kemp, 2009 OK CR 25, ¶12, 217 P.3d 629, 631. The police encounter here began as a consensual encounter, which escalated into an investigative detention. The investigation necessitated a pat down, which resulted in the discovery of Marijuana. We find that the trial court did not abuse its discretion. See United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct 1870, 1877, 64 L.Ed.2d 497 (1980) and Coffia v. State, 2008 OK CR 24, ¶14, 191 P.3d 594, 598 (consensual encounters); United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct 744, 151 L.Ed.2d 740 (2002), Williams v. State, 2008 OK CR 19, ¶58, 188 P.3d 208, 222, and Abraham v. State, 1998 OK CR 29, ¶4, 962 P.2d 647 (activity rising to the level of an objectively reasonable and articulable suspicion authorizing an investigative detention); Hallcy v. State, 2007 OK CR 2, ¶6, 153 P.3d 66, 68 (the plain feel doctrine).

In proposition two, we find that, in accordance with Watkins v. State, 1991 OK CR 119, 829 P.2d 42, and more recently, Lewis v. State, 2006 OK CR 248, ¶5, 150 P.3d 1060, 1062, and under the facts of this case, Roberson’s possession of two different controlled dangerous substances should have been charged as a single count of possession of a controlled dangerous substance, with intent to distribute. Although not raised at trial, the trial court’s error adversely affected Appellant’s substantial rights, constituting plain error. See Simpson v. State, 1994 OK CR 40, ¶10-12, 876 P.2d 690, 695. Therefore, we find that the conviction on count two must be reversed with instructions to dismiss.

DECISION

The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED as to Count 1, and REVERSED and REMANDED with instructions to DISMISS Count 2. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. Okla. Stat. tit. 63 § 2-401(B)(2)
2. Davis v. State
3. Watkins v. State
4. Lewis v. State
5. State v. Kemp, 2009 OK CR 25, I 12, 217 P.3d 629, 631
6. United States v. Mendenhall, 446 US 544, 553, 100 S.Ct 1870, 1877, 64 L.Ed.2d 497 (1980)
7. Coffia v. State, 2008 OK CR 24, I 14, 191 P.3d 594, 598
8. United States v. Arvizu, 534 US 266, 273, 122 S.Ct 744, 151 L.Ed.2d 740 (2002)
9. Williams v. State, 2008 OK CR 19, I 58, 188 P.3d 208, 222
10. Abraham v. State, 1998 OK CR 29, 9 4, 962 P.2d 647
11. Hallcy v. State, 2007 OK CR 2, "I 6, 153 P.3d 66, 68
12. Watkins v. State, 1991 OK CR 119, 829 P.2d 42
13. Lewis v. State, 2006 OK CR 2 48, I 5, 150 P.3d 1060, 1062
14. Simpson v. State, 1994 OK CR 40, 11 10-12, 876 P.2d 690, 695

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2005) - Unlawful Possession of Controlled Substances
• Okla. Stat. tit. 21 § 11-801(B)(1) - Definitions
• Okla. Stat. tit. 22 § 3.15 (2010) - Mandate
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentences for Certain Violent Crimes

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:

• State v. Kemp, 2009 OK CR 25, I 12, 217 P.3d 629, 631
• United States v. Mendenhall, 446 US 544, 553, 100 S.Ct 1870, 1877, 64 L.Ed.2d 497 (1980)
• Coffia v. State, 2008 OK CR 24, I 14, 191 P.3d 594, 598
• United States U. Arvizu, 534 US 266, 273, 122 S.Ct 744, 151 L.Ed.2d 740 (2002)
• Williams v. State, 2008 OK CR 19, I 58, 188 P.3d 208, 222
• Abraham v. State, 1998 OK CR 29, I 4, 962 P.2d 647
• Watkins v. State, 1991 OK CR 119, 829 P.2d 42
• Lewis v. State, 2006 OK CR 248, I 5, 150 P.3d 1060, 1062
• Simpson v. State, 1994 OK CR 40, I 10-12, 876 P.2d 690, 695