Michael Ray Baack v The State Of Oklahoma

F-2012-478

Filed: Dec. 12, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Michael Ray Baack appealed his conviction for unlawful possession of a controlled dangerous substance and public intoxication. Baack was found guilty and sentenced to eight years in prison and a $2,000 fine for the first charge, and thirty days in jail for the second charge. The sentences were to be served one after the other. The court decided that Baack's conviction was supported by enough evidence and ruled that there were no major errors in his trial. However, they corrected the sentencing documents to show that there should be no fine for the first charge. Justice Smith disagreed with the decision to affirm the conviction.

Decision

The Judgment and Sentence of the district court is AFFIRMED. We REMAND to the district court to correct the Judgment and Sentence documents on Count 1 by an order nunc pro tunc to reflect no fine. 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 delivery and filing of this decision.

Issues

• was the evidence sufficient to prove Count 1?
• did the trial court's failure to limit the jury's consideration of other crimes propensity evidence constitute plain error?
• did the trial court's failure to instruct the jury on the lesser offense of possession of drug paraphernalia constitute plain error?
• does the judgment and sentence require correction regarding the fine on Count 1?
• is the sentence excessive due to improper considerations of parole?

Findings

• evidence was sufficient
• no plain error regarding other crimes propensity evidence
• no plain error in failing to instruct on lesser offense of possession of drug paraphernalia
• remand for nunc pro tunc correction regarding fine on Count 1
• no error in admission of prior felony conviction affecting sentence

F-2012-478

Dec. 12, 2013

Michael Ray Baack

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE A. JOHNSON, JUDGE:

Appellant Michael Ray Baack was tried by jury in the District Court of Canadian County, Case No. CF-2011-48, and convicted of Unlawful Possession of a Controlled Dangerous Substance, After One Prior Felony Conviction (Count 1), in violation of 63 O.S.Supp.2009, § 2-402, and Public Intoxication (Count 2), in violation of 37 O.S.2001, § 8. The jury fixed punishment at eight years imprisonment and a $2,000.00 fine on Count 1 and thirty days imprisonment on Count 2. The presiding judge, the Honorable Gary E. Miller, sentenced Baack according to the jury’s verdict, ordered the sentences to be served consecutively, waived the fine on Count 1, and granted credit for time served.

From this Judgment and Sentence Baack appeals, raising the following issues: (1) whether the evidence was sufficient to prove Count 1; (2) whether the trial court’s failure to limit the jury’s consideration of other crimes propensity evidence was plain error; (3) whether the trial court’s failure to instruct the jury on the lesser offense of possession of drug paraphernalia was plain error; (4) whether the judgment and sentence requires correction regarding the fine on Count 1; and (5) whether his sentence is excessive because of improper considerations of parole.

We find reversal is not required and affirm the Judgment and Sentence of the District Court. The matter must be remanded, however, for an order nunc pro tunc to correct the Judgment and Sentence on Count 1 to eliminate the fine.

1. After reviewing the evidence in the light most favorable to the State, we find the evidence was sufficient for any rational jury to find beyond a reasonable doubt that Baack knowingly and intentionally possessed the baggies containing methamphetamine residue in his coat pocket. See Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204.

2. Reviewing Baack’s claim concerning the absence of a limiting instruction on other crimes evidence for plain error only, we find no relief is necessary. See Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923 (plain error is error that counsel failed to preserve through a timely trial objection, but upon appellate review, is clear from the record and affected the defendant’s substantial rights). A trial court is not required to give a limiting instruction unless one is requested. Drew v. State, 1989 OK CR 1, ¶ 23, 771 P.2d 224, 230. Because Baack did not request an instruction, he can show no error. Furthermore, it was Baack who introduced his prior record through his own testimony and admission of defense exhibits. Error, if any, was invited by him and cannot serve as the basis for relief on appeal. See Pierce v. State, 1990 OK CR 7, ¶ 10, 786 P.2d 1255, 1259.

3. The district court did not plainly err in failing to submit an instruction on possession of drug paraphernalia as a lesser related offense of unlawful possession of methamphetamine. See Taylor v. State, 2011 OK CR 8, ¶ 14, 248 P.3d 362, 368 (failure to request an instruction at trial waives review on appeal for all but plain error). Baack testified on his own behalf and proclaimed his innocence. He disavowed all knowledge and ownership of the baggies containing methamphetamine residue. Baack was not entitled to an instruction on possession of paraphernalia. See Harney v. State, 2011 OK CR 10, ¶ 11, 256 P.3d 1002, 1005.

4. At formal sentencing, the trial court waived the fine fixed by the jury on Count 1. Baack contends, and the State agrees, that this case must be remanded for an order nunc pro tunc to correct the Judgment and Sentence to reflect no fine on Count 1. See Jacobs v. State, 2006 OK CR 4, ¶¶ 2-3, 128 P.3d 1085, 1086 (remanding for nunc pro tunc correction to judgment and sentence to show that defendant’s sentences should run concurrently because judgment and sentence must properly reflect sentence pronounced).

5. We reject Baack’s claim that he was prejudiced by the admission of the Judgment and Sentence of his prior felony conviction showing he received a suspended sentence. Reviewing for plain error only, we find none. Baack’s case is distinguishable from Hunter v. State, and he cannot show any error from the admission of this exhibit affected the outcome of his case. See Hunter v. State, 2009 OK CR 17, ¶¶ 8-10, 208 P.3d 931, 933-934. His sentence on Counts 1 and 2 is within the range of punishment provided by law and it does not shock our conscience. See Gomez v. State, 2007 OK CR 33, ¶ 18, 168 P.3d 1139, 1146; Rea v. State, 2001 OK CR 28, ¶ 5 n.3, 34 P.3d 148, 149 n.3. This claim is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. We REMAND to the district court to correct the Judgment and Sentence documents on Count 1 by an order nunc pro tunc to reflect no fine. 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 delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY

THE HONORABLE GARY E. MILLER, DISTRICT JUDGE

APPEARANCES AT TRIAL

MICHAEL RAY BAACK, PRO SE

TERRY J. HULL
OKLAHOMA INDIGENT DEFENSE SYSTEM
STAND-BY COUNSEL
P. O. BOX 926
NORMAN, OK 73070

ATTORNEY FOR APPELLANT

FOR THE DEFENDANT

PATRICK BLAKLEY
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA ATTORNEY GENERAL
303 N. CHOCTAW
EL RENO, OK 73036

ATTORNEY FOR STATE

STEVEN W. CREAGER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105

ATTORNEYS FOR APPELLEE

OPINION BY: A. JOHNSON, J.
LEWIS, P.J.: Concur
SMITH, V.P.J.: Concur
LUMPKIN, J.: Concur in Results
C. JOHNSON, J.: Concur

RA 5

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Footnotes:

1. 63 O.S.Supp.2009, § 2-402
2. 37 O.S.2001, § 8
3. Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161
4. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204
5. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923
6. Drew v. State, 1989 OK CR 1, ¶ 23, 771 P.2d 224, 230
7. Pierce v. State, 1990 OK CR 7, ¶ 10, 786 P.2d 1255, 1259
8. Taylor v. State, 2011 OK CR 8, ¶ 14, 248 P.3d 362, 368
9. Harney v. State, 2011 OK CR 10, ¶ 11, 256 P.3d 1002, 1005
10. Jacobs v. State, 2006 OK CR 4, ¶¶ 2-3, 128 P.3d 1085, 1086
11. Hunter v. State, 2009 OK CR 17, ¶¶ 8-10, 208 P.3d 931, 933-934
12. Gomez v. State, 2007 OK CR 33, ¶ 18, 168 P.3d 1139, 1146
13. Rea v. State, 2001 OK CR 28, ¶ 5 n.3, 34 P.3d 148, 149 n.3

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 (2009) - Unlawful Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 37 § 8 (2001) - Public Intoxication

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:

• Logsdon v. State, 2010 OK CR 7, I 5, 231 P.3d 1156, 1161
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Drew v. State, 1989 OK CR 1, I 23, 771 P.2d 224, 230
• Pierce v. State, 1990 OK CR 7, I 10, 786 P.2d 1255, 1259
• Taylor v. State, 2011 OK CR 8, I 14, 248 P.3d 362, 368
• Harney v. State, 2011 OK CR 10, I 11, 256 P.3d 1002, 1005
• Jacobs v. State, 2006 OK CR 4, I 2-3, 128 P.3d 1085, 1086
• Hunter v. State, 2009 OK CR 17, II 8-10, 208 P.3d 931, 933-934
• Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146
• Rea v. State, 2001 OK CR 28, I 5 n.3, 34 P.3d 148, 149 n.3