Torrez Ceasar v The State Of Oklahoma

F-2010-558

Filed: Nov. 14, 2011

Not for publication

Prevailing Party: Torrez Ceasar

Summary

Torrez Ceasar appealed his conviction for Possession of Controlled Dangerous Substance (PCP) with Intent to Distribute. His original conviction and sentence were for 25 years in prison. The court found that while there was enough evidence to show he had possession of PCP, there wasn't enough proof to prove he intended to sell it. The court changed his conviction to just Possession of Controlled Dangerous Substance (PCP) and reduced his sentence to 20 years. Judge Lumpkin disagreed with the decision to reduce the conviction and thought Ceasar should remain convicted of intent to distribute.

Decision

Ceasar's conviction for Possession of Controlled Dangerous Substance (PCP) with Intent to Distribute, AFCF is hereby REVERSED, and this case is REMANDED to the district court, in order for the district court to MODIFY Ceasar's CONVICTION ON COUNT I to Possession of Controlled Dangerous Substance (PCP), AFCF, with a sentence of imprisonment for twenty (20) years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to establish Ceasar's knowledge, control, and intent to distribute PCP beyond a reasonable doubt?
• Did the trial court err in admitting irrelevant and unfairly prejudicial evidence regarding Ceasar's gang affiliation?
• Did the trial court commit reversible error by refusing to instruct the jury on the lesser related offense of public intoxication?

Findings

• the court erred in concluding that the evidence was sufficient to support a finding of intent to distribute
• the trial court did not abuse its discretion in admitting limited gang affiliation evidence
• the trial court correctly determined that public intoxication is not a lesser included offense of possession of controlled dangerous substance with intent to distribute

F-2010-558

Nov. 14, 2011

Torrez Ceasar

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE:

Torrez Ceasar, Appellant, was tried by jury and convicted of Possession of Controlled Dangerous Substance (PCP) with Intent to Distribute, AFCF, under 63 O.S.Supp.2007, § 2-401 (Count I), in the District Court of Oklahoma County, Case No. CF-2007-7188. In accord with the jury verdict, the Honorable Donald L. Deason, District Judge, sentenced Ceasar to imprisonment for twenty-five (25) years. Ceasar is before this Court on direct appeal. Ceasar raises the following propositions of error:

I. THE STATE FAILED TO PROVE MR. CEASAR’S GUILT BEYOND A REASONABLE DOUBT BY FAILING TO PRESENT SUFFICIENT EVIDENCE OF KNOWLEDGE, CONTROL, AND INTENT TO DISTRIBUTE.
II. THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT AND UNFAIRLY PREJUDICIAL EVIDENCE OF MR. CEASAR’S GANG AFFILIATION.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO INSTRUCT THE JURY ON THE LESSER RELATED OFFENSE OF PUBLIC INTOXICATION.

In Proposition I, Ceasar challenges the sufficiency of the evidence presented at trial to establish, beyond a reasonable doubt, both (1) that he was actually in possession of the PCP, and (2) that he intended to distribute the PCP. This Court evaluates such claims by determining whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04 (quoting Jackson); see also Easlick, 2004 OK CR 21, ¶ 5, 90 P.3d 556, 558, 559.

This Court finds that the evidence was sufficient for Ceasar’s jury to conclude, beyond a reasonable doubt, that the vanilla extract bottle found in the back of D’Angelo Smith’s car had just been thrown there by Ceasar, i.e., that Ceasar was actually in possession of phencyclidine (PCP). Officer Padgett’s observation of Ceasar apparently throwing something there, the precarious position of the bottle (containing PCP) on the black leather jacket, Smith’s willingness to have his car searched, and the fact that Ceasar appeared to be intoxicated on PCP at the time all support the jury’s factual finding in this regard. See Jones v. State, 1971 OK CR 529, 492 P.2d 1104 (affirming defendant’s conviction for drug possession even though no officer actually saw him throw bag of pills out window, based upon circumstantial evidence of where he and four other occupants of trailer home were at the time pills were thrown).

Whether the evidence presented at trial was sufficient to support the jury’s finding that Ceasar intended to distribute this PCP is a tougher question. In Billey v. State, 1990 OK CR 76, 800 P.2d 741, this Court clearly held that the amount of a drug, by itself, is not enough to support a finding that the possessor of that drug intended to distribute it: [M]ore than mere possession is required to support a finding of intent to distribute. Id. at ¶ 4, 800 P.2d at 742. The Billey Court noted that things like individual packaging, a large baggie containing a number of smaller baggies, separate bags of the same drug, a large amount of cash, evidence of an attempted drug sale by defendant, and evidence of an extended drug cultivation operation, along with the amount of the drug at issue, could support a finding of intent to distribute. Id. at ¶ 4, 800 P.2d at 742-43.

In Billey, we reversed the convictions of the three defendants, even though they were found in possession of approximately 13 pounds of just-harvested marijuana, id. at ¶ 3, 800 P.2d at 742, noting that there was no evidence of selling, individual packaging, large amounts of cash or cultivation. Id. at ¶ 6, 800 P.2d at 743. We noted that while the amount of marijuana at issue was consistent with an intent to distribute, since it was at least equally plausible to conclude that the marijuana was intended for personal use, there is no proof beyond a reasonable doubt of intent to distribute. Id. at ¶ 7, 800 P.2d at 743. We then ordered that the defendants’ convictions be modified to simple possession of marijuana. Id. at ¶ 8, 800 P.2d at 743.

Although the State asserts that the quantity of drugs at issue can be enough, by itself, to proof intent to distribute, the single case invoked by the State in this regard, Wilson v. State, 1994 OK CR 5, 871 P.2d 46, does not support this claim. In Wilson, this Court noted that the State’s evidence established that a nearly full 8 oz. bottle of PCP was found directly behind the passenger seat in which Appellant was sitting, along with a sack containing eight vials and a paring knife. Id. at ¶ 6, 871 P.2d at 49. Hence the PCP in Wilson was found in close proximity to materials associated with drug distribution, giving the jury sufficient evidence to find intent to distribute. Id. The Wilson decision neither held nor implied that it was reversing Billey or that evidence of drug amount alone can support a finding of intent to distribute.

The State emphasizes that Ceasar was clearly intoxicated by PCP at the time he was arrested and that the bottle of PCP had evidence of actual use, since it contained bits of tobacco leaves. In the current case, however, these two facts are at least equally consistent with a finding that Ceasar possessed the PCP because he was a user of PCP. While he may also have been a drug distributer, the only circumstantial evidence of an intent to distribute in the current record is the amount of PCP that Ceasar possessed. There was no evidence of individual packaging, drug distribution materials, separate containers, an attempt to sell a dip or dose of PCP, or any evidence regarding how much cash Ceasar had at the time. Consequently, this Court finds that Ceasar’s conviction for possession of PCP with intent to distribute must be reversed and modified to a judgment for simple possession of PCP.

In Proposition II, Ceasar challenges the trial court’s decision allowing the State to admit irrelevant and unfairly prejudicial gang evidence at trial. Such decisions are reviewed only for an abuse of discretion. See Pickens v. State, 2001 OK CR 3, ¶ 21, 19 P.3d 866, 876. Ceasar properly preserved this issue at trial, by challenging the State’s use of any evidence regarding his possible gang membership. After a hearing, the trial court ruled that the State could not make any reference to the fact that Ceasar had aliases, but that the State would be allowed to present the evidence that Ceasar threw up gang signs at Officer Padgett, after yelling a profanity at him, since this was part and parcel of the actions that occurred in this case.

This Court finds that the gang evidence that came in at trial, namely, that Ceasar made gestures at Padgett that occurred to be gang signs (though Padgett was unsure of the meaning of the signs or what gang they signified) and that both Ceasar and Smith were wearing red (which might have indicated gang membership, but without any testimony linking this color to any specific gang), was actually quite limited. The State did not make any reference to gangs or gang membership in its opening statement or closing arguments, nor did the State emphasize the gang evidence that did come in at trial. In fact, most of the questions regarding possible gang evidence were asked by defense counsel. This Court notes that the throwing of gang signs by Ceasar was part of the res gestae of the key events in this case. See Rogers v. State, 1995 OK CR 8, ¶ 21, 890 P.2d 959, 971 (summarizing standard for determining whether evidence is res gestae). And we conclude that the trial court did not abuse its discretion in allowing the limited gang evidence that came in at trial, that the State did not improperly emphasize or rely upon this evidence, and that Ceasar was not unfairly prejudiced thereby. Proposition II is rejected accordingly.

In Proposition III, Ceasar challenges the trial court’s refusal to instruct his jury on the lesser related offense of public intoxication. Ceasar requested this instruction at trial, but the trial court declined to give it, concluding that public intoxication is not a lesser included (or lesser related) offense of drug possession with intent to distribute. The trial court was right. Although Ceasar certainly could have been charged with public intoxication in addition to being charged with possession of PCP, public intoxication is neither a lesser included nor a lesser related offense of drug possession (with or without an intent to distribute). Where an offense is a lesser included or lesser related offense of another, the defendant cannot be ultimately convicted of both the greater and the lesser offense based upon the same act(s). Furthermore, the crime of public intoxication is not even in the same category of crime, nor is it directed at the same kind of activity, as are the laws against drug possession. Nor are the laws against these separate types of crimes clearly designed to protect the same interest. See Shrum v. State, 1999 OK CR 41, ¶ 6 n.3, 991 P.2d 1032, 1034 n.3. The fact that public intoxication laws and drug possession laws are both designed to protect the public safety, as argued by Ceasar, is much too general to conclude that they are related crimes in this sense. Furthermore, it is not clear that public safety is the primary interest being protected by public intoxication laws, as opposed to public morals, the community’s interest in not being exposed to intoxicated persons, etc. The trial court was entirely correct to reject the proposed alternative offense instruction, and Proposition III 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 Ceasar’s conviction for Possession of Controlled Dangerous Substance (PCP) with Intent to Distribute, AFCF, under 63 O.S.Supp.2007, § 2-401, must be reversed and modified to a conviction for Possession of Controlled Dangerous Substance (PCP), AFCF, under 63 O.S.Supp.2007, § 2-402, with a sentence of imprisonment for 20 years, which is the maximum sentence for this crime. See 63 O.S.Supp.2007, § 2-402(B)(1).

DECISION

Ceasar’s conviction for Possession of Controlled Dangerous Substance (PCP) with Intent to Distribute, AFCF is hereby REVERSED, and this case is REMANDED to the district court, in order for the district court to MODIFY Ceasar’s CONVICTION ON COUNT I to Possession of Controlled Dangerous Substance (PCP), AFCF, with a sentence of imprisonment for twenty (20) years.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401
2. Okla. Stat. tit. 63 § 2-402
3. Okla. Stat. tit. 63 § 2-415(C)(6)(a)
4. Okla. Stat. tit. 22 § 916
5. Okla. Stat. tit. 63 § 2-401

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2011) - Possession of Controlled Dangerous Substance (PCP) with Intent to Distribute
• Okla. Stat. tit. 63 § 2-402 (2011) - Possession of Controlled Dangerous Substance (PCP)
• Okla. Stat. tit. 63 § 2-415 (2011) - Trafficking in PCP
• Okla. Stat. tit. 21 § 701.8 (2011) - [No specific subject provided]
• Okla. Stat. tit. 22 § 916 (2001) - Lesser Included Offense Doctrine

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, 2789, 61 L.Ed.2d 560 (1979)
• Spuehler v. State, 1985 OK CR 132, IT 7, 709 P.2d 202, 203-04
• Jones v. State, 1971 OK CR 529, 492 P.2d 1104
• Billey v. State, 1990 OK CR 76, 800 P.2d 741
• Wilson v. State, 1994 OK CR 5, 871 P.2d 46
• Pickens v. State, 2001 OK CR 3, I 21, 19 P.3d 866, 876
• Shrum v. State, 1999 OK CR 41, "I 6 n.3, 991 P.2d 1032, 1034 n.3
• Easlick v. State, 2004 OK CR 21, § 15, 90 P.3d 556, 559
• Scott v. State, 1991 OK CR 31, 808 P.2d 73
• Foster v. State, 714 P.2d 1031 (Okl.Cr.1986)
• Williams v. State, 721 P.2d 1318 (Okl.Cr.1986)
• Jones v. State, 772 P.2d 922, 926 (Okl.Cr.1989)
• Gates v. State, 754 P.2d 882, 885 (Okl.Cr.1988)
• Fallon v. State, 725 P.2d 603, 605 (Okl.Cr.1986)
• Champeau v. State, 678 P.2d 1192, 1195 (Okl.Cr.1984)
• Rudd v. State, 649 P.2d 791, 794 (Okl.Cr.1982)
• Grissom v. State, 2011 OK CR 3, 253 P.3d 969
• Gann v. State, 1964 OK CR 122, I 17, 397 P.2d 686, 690
• Jackson v. State, 1998 OK CR 39, 11 8-9, 964 P.2d 875, 899-900