Tommie Joe Moore v The State of Oklahoma

F-2012-168

Filed: May 6, 2013

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Tommie Joe Moore appealed his conviction for Distribution of Controlled Dangerous Substance and Trafficking in Illegal Drugs. His convictions and sentences were upheld but modified to reduce a fine. Judge Enos dissented on certain aspects of the opinion.

Decision

The Judgment and Sentence of the district court is AFFIRMED except that Appellant's fine on Count I of Case No. CF-2011-46 is MODIFIED to $10,000.00. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was Mr. Moore's fine in Count I of Case No. CF-2011-46 fundamentally erroneous and should it be modified?
• Did the trial court deprive Mr. Moore of a fair trial by failing to instruct the jury on the lesser-included offense of possession of controlled dangerous substance regarding the trafficking charge in Case No. CF-2011-59?
• Did prosecutorial misconduct constitute fundamental error that deprived Mr. Moore of a fair trial?
• Did the trial court abuse its discretion by imposing consecutive sentences and considering an improper factor when determining Mr. Moore's punishment, making the sentences excessive?
• Did the cumulative effect of all alleged errors deprive Mr. Moore of a fair trial and warrant relief?

Findings

• the court erred in imposing a $25,000.00 fine, which was modified to $10,000.00
• the trial court did not abuse its discretion by declining to instruct on the lesser-included offense of possession
• prosecutorial misconduct did not deprive Moore of a fair trial
• the trial court did not abuse its discretion in imposing consecutive sentences
• there was no accumulation of errors that would warrant relief

F-2012-168

May 6, 2013

Tommie Joe Moore

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Tommie Joe Moore, was convicted after jury trial in Stephens County District Court, of Distribution of Controlled Dangerous Substance (Count I) and Possession of Controlled Dangerous Substance (Count II) in Case No. CF-2011-46 and Trafficking in Illegal Drugs in Case No. CF-2011-59. Moore waived jury trial on the second stage and jury sentencing in both cases. The trial court found Moore guilty after one prior felony conviction on each count in Case No. CF-2011-46 and in Case No. CF-2011-59. The court sentenced Moore to twenty years imprisonment and a $25,000.00 fine on the distribution conviction, ten years imprisonment and a $7,500.00 fine on the possession conviction, and twenty-five years imprisonment and a $25,000.00 fine on the trafficking conviction. The court ordered the convictions in Case No. CF-2011-46 to be served concurrently with each other and consecutively to the conviction in Case No. CF-2011-59. It is from this Judgment and Sentence that Moore appeals to this Court.

Moore raises the following propositions of error:
1. Mr. Moore’s fine in Count I of Case No. CF-2011-46 constitutes fundamental error and should be modified by this Court.
2. The trial court’s failure to instruct the jury on the lesser-included offense of possession of controlled dangerous substance, with respect to the trafficking charge in Case No. CF-2011-59 deprived Moore of a fair trial.
3. Prosecutorial misconduct constituted fundamental error and deprived Mr. Moore of a fair trial.
4. Under the circumstances of the instant case, the trial court abused its discretion by ordering Mr. Moore to serve the two longest sentences consecutively. Judge Enos also considered an improper factor when determining Moore’s punishment. Therefore, Moore’s excessive sentences should shock the conscience of this Court and should warrant relief.
5. The cumulative effect of all these errors deprived Mr. Moore of a fair trial and warrants relief from this Court.

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. Moore’s Judgment and Sentence.

As to Proposition I, we find Moore was convicted in Count I of Case No. CF-2011-46 of distribution of methamphetamine under 63 O.S.2011, § 2-401(B)(2). As a first offense this crime is punishable by two years to life in prison and a fine of not more than $20,000.00. Moore had one prior felony conviction and his sentence was enhanced under 21 O.S.2011, § 51.1 which makes no independent provision for a fine. The trial court sentenced Moore on this count to twenty years imprisonment and a $25,000.00 fine. Moore did not object to this sentence at trial and has thus waived all but review for fundamental error on appeal. See Hubbard v. State, 2002 OK CR 8, I 7, 45 P.3d 96, 99. Moore argues that the $25,000.00 fine was not lawfully imposed and thus, constituted fundamental error. In support of his argument Moore relies on Coates v. State, 2006 OK CR 24, I 6, 137 P.3d 682, 684-85, in which this Court held that a sentence enhanced under section 51.1 could not include additional imposition of any fine authorized in the substantive drug statute. The State acknowledges the Coates ruling but counters with the unpublished opinion of Mulligan v. State, F-2009-876 (September 23, 2010), in which this Court found that in the rare circumstance where the substantive drug statute imposed a mandatory fine and specifically stated the fine shall be imposed in addition to other punishment provided by law, the trial court did not err in instructing jurors to impose a fine even if the sentence was enhanced with prior convictions under section 51. Title 63 O.S.2011, § 2-401(B)(2), does not include the rare statutory language at issue in Mulligan as it allows for, but does not require the imposition of a fine. Thus, it was plain error for the trial court to impose a fine under section 2-401(B)(2) when the sentence was enhanced under section 51. However, as the trial court could have imposed a fine of up to $10,000.00 under 21 O.S.2011, § 64(B), we modify Moore’s fine in Count I to $10,000.00.

With regard to Proposition II, we find that there was no evidentiary support for a jury instruction on simple possession as a lesser-included offense of trafficking and the trial court did not abuse its discretion by declining to give this instruction sua sponte. McHam v. State, 2005 OK CR 28, I 21, 126 P.3d 662, 670; McIntosh v. State, 2010 OK CR 17, I 2, 237 P.3d 800, 801.

In Proposition III, we find that prosecutorial misconduct did not deprive Moore of his right to a fair trial. The comments at issue were certainly not so flagrant that they infected Moore’s trial and rendered it fundamentally unfair. Neither comment can be found to have deprived him of a fair trial or affected the jury’s finding of guilt or the trial court’s assessment of punishment. There was no plain error here. Matthews U. State, 2002 OK CR 16, I 38, 45 P.3d 907, 920.

We find in Proposition IV that a sentence within the statutory range will be affirmed on appeal unless, considering all the facts and circumstances, it shocks the conscience of this Court. Rea v. State, 2001 OK CR 28, I 5 n.3, 34 P.3d 148, 149 n.3. The district court sentenced Moore to terms of years allowed by statute properly taking into consideration the evidence presented at trial. The sentences imposed were not excessive and the trial court did not abuse its discretion in either the term of years imposed or the decision to run the sentences consecutively. 22 O.S.2011, § 976; Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.

Finally, Moore claims that trial errors, when considered cumulatively, deprived him of a fair trial. This Court has recognized that when there are numerous irregularities during the course of [a] trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial. DeRosa U. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157, quoting Lewis v. State, 1998 OK CR 24, I 63, 970 P.2d 1158, 1176. As noted above, error in Proposition I required modification of his sentence in Count I of Case No. CF-2011-46. All other allegations of error were found to be without merit. Thus, there was no accumulation of error and no further relief is warranted.

DECISION

The Judgment and Sentence of the district court is AFFIRMED except that Appellant’s fine on Count I of Case No. CF-2011-46 is MODIFIED to $10,000.00. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

OPINION BY C. JOHNSON, J.

LEWIS, P.J.: CONCUR
SMITH, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR
A. JOHNSON, J.: CONCUR

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Footnotes:

1. 1 The fine imposed by the trial court was actually $5,000.00 in excess of the maximum fine allowed under section 2-401(B)(2).
2. 2 Title 63 O.S.2011, § 401(G)(2) provides that: Any person violating the provisions of this subsection with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled dangerous substance, or possessing any substance listed in this subsection or Section 2-322 of this title, upon conviction, is guilty of a felony and shall be punished by imprisonment for not less than seven (7) years nor more than life and by a fine of not less than Fifty Thousand Dollars ($50,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. (emphasis added).
3. 3 under 21 O.S.2011, § 64(B), we modify Moore's fine in Count I to $10,000.00.
4. 4 Rea v. State, 2001 OK CR 28, I 5 n.3, 34 P.3d 148, 149 n.3.
5. 5 22 O.S.2011, § 976; Neloms v. State, 2012 OK CR 7, "I 35, 274 P.3d 161, 170.
6. 6 DeRosa U. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157, quoting Lewis v. State, 1998 OK CR 24, I 63, 970 P.2d 1158, 1176.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(B)(2) (2011) - Distribution of Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 51.1 (2011) - Enhanced punishment for prior felony convictions
• Okla. Stat. tit. 21 § 64(B) (2011) - Additional fines for certain crimes
• Okla. Stat. tit. 22 § 976 (2011) - Sentences to be served consecutively

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:

• Hubbard v. State, 2002 OK CR 8, I 7, 45 P.3d 96, 99.
• Coates v. State, 2006 OK CR 24, I 6, 137 P.3d 682, 684-85.
• McHam v. State, 2005 OK CR 28, I 21, 126 P.3d 662, 670.
• McIntosh v. State, 2010 OK CR 17, I 2, 237 P.3d 800, 801.
• Matthews v. State, 2002 OK CR 16, I 38, 45 P.3d 907, 920.
• Rea v. State, 2001 OK CR 28, I 5 n.3, 34 P.3d 148, 149 n.3.
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
• DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157.
• Lewis v. State, 1998 OK CR 24, I 63, 970 P.2d 1158, 1176.