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F-2017-1214

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Marco Antonio Hernandez v The State Of Oklahoma

F-2017-1214

Filed: Apr. 11, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Marco Antonio Hernandez appealed his conviction for Trafficking in Illegal Drugs (Methamphetamine) and Unlawful Possession of a Controlled Drug with Intent to Distribute (Marijuana & Cocaine). Conviction and sentence involved life imprisonment for trafficking, life imprisonment for possession with intent, and a year in jail for possession of drug paraphernalia, with all sentences running consecutively. # Lewis dissented. In this case, Marco was found with several types of illegal drugs when police searched his motel room. He admitted to selling drugs but tried to protect his girlfriend from getting in trouble by claiming most of the drugs were his. Despite his claims, the evidence suggested he was involved in drug trafficking. The jury convicted him, and he appealed, arguing that the court should have instructed the jury about lesser charges related to the drugs. The court reviewed his appeal and decided that the trial court did not make a mistake because the evidence showed Marco had too much methamphetamine to qualify for a lesser charge of possession with intent to distribute. They also found no basis to claim that the trial court made a mistake in not providing instructions on lesser offenses. Overall, the appellate court upheld Marco’s convictions and sentences, but one judge disagreed, believing the jury should have been given the option to consider lesser charges based on the evidence presented.

Decision

The Judgment and Sentence of the District Court is hereby AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there plain error in the trial court's failure to instruct the jury on Possession of Methamphetamine with Intent to Distribute as a lesser included offense of Trafficking in Illegal Drugs?
  • Did the trial court err in failing to instruct the jury on Possession of a Controlled Drug as a lesser included offense of Possession of Controlled Drug with Intent to Distribute?
  • Was there ineffective assistance of counsel due to the failure to request instructions on lesser included offenses?

Findings

  • the court did not err in failing to instruct the jury on Possession of Methamphetamine with Intent to Distribute as a lesser included offense of Trafficking in Illegal Drugs
  • the court did not err in failing to instruct the jury on Possession of a Controlled Drug as a lesser included offense of Possession of Controlled Drug with Intent to Distribute
  • the court did not err in finding that Appellant received effective assistance of counsel

F-2017-1214

Apr. 11, 2019

Marco Antonio Hernandez

Appellant

v

The State Of Oklahoma

Appellee

OPINION

LUMPKIN, JUDGE: Appellant, Marco Antonio Hernandez, was tried by jury and convicted of Trafficking in Illegal Drugs (Methamphetamine) (Count 1) (63 O.S.Supp.2015, § 2-415) and Unlawful Possession of a Controlled Drug with Intent to Distribute (Marijuana & Cocaine) (Count 2) (63 O.S.Supp.2012, § 2-401(A)(1)), After Former Conviction of Two or More Felonies and Unlawful Possession of Drug Paraphernalia (Count 4) (63 O.S.2011, § 2-405) in District Court of Tulsa County Case Number CF-2015-6346. The jury recommended as punishment imprisonment for life and a $25,000.00 fine in Count 1; imprisonment for life in Count 2; and incarceration in the county jail for one year and a $1,000.00 fine in Count 4. The trial court sentenced Appellant in accordance with the jury’s recommendation and ordered that the sentences run consecutively. It is from these judgments and sentences that Appellant appeals.

FACTS

Appellant lived with his girlfriend, Jennifer Ziolkowski, at the Motel 6 at 1010 North Garnett Road in Tulsa, Oklahoma. On November 24, 2015, Officers Donald Cox, Jamie Kirby, David Wamsley and Anthony Finnegan of the Tulsa Police Department executed a search warrant on Appellant’s motel room. The officers knocked on the door several times and announced themselves but no one came to the door. They secured a keycard from the manager but were unable to open the door. Ultimately, the officers used a ram to breach the door. When the officers made entry into the room, they discovered Ziolkowski on the bed. Appellant was in the bathroom. His clothing was partially wet. The officers found five individually wrapped baggies of Marijuana, one baggie of crystal Methamphetamine, a baggie of Cocaine, and an e-cigarette loaded with a THC product in the toilet. A packaging label for Marijuana purchased in Colorado was also discovered in the bathroom floor. The officers found a set of digital scales, multiple cell phones, and a tin canister on the nightstand. The canister contained three individual baggies of crystal Methamphetamine. The officers found an opened box of sandwich baggies in the nightstand drawer. Based upon their training and experience, the investigating officers associated the scales, the extra baggies, the multiple types of controlled drugs, and the multiple cell phones with the distribution of controlled dangerous substances. Jared Lieser, of the Tulsa Police Department’s Forensic Laboratory, weighed and tested the substances recovered from the motel room. He determined that the baggies of Methamphetamine weighed 8.08, 6.93, 5.03, and .66 grams, respectively, and combined for a total weight of 20.70 grams. The baggie of Cocaine contained 1.06 grams of the substance. Officer Cox interviewed Appellant inside one of the police vehicles at the scene. Appellant waived his rights under Miranda and agreed to speak with Cox. Appellant confessed to possessing the drugs inside the room. He professed his love for Ziolkowski and sought to absolve her of any responsibility for the substances. Appellant advised Cox that he had been selling drugs, off and on, over the last ten years. He tried to avoid being arrested, promising to snitch on other drug dealers. Appellant claimed to be able to secure ten pounds of Methamphetamine from the individuals running drugs through one of the local stores. Both Appellant and Ziolkowski were arrested. During the booking process at the jail, Appellant advised Ziolkowski to go and get the Methamphetamine out of the storage unit. The following day, the investigating officers executed a search warrant on the storage unit. They found a shoebox containing approximately one-half pound of crystal Methamphetamine in the unit. Ziolkowski was present and attempting to gain access to the unit when the officers arrived. Jason McGinnis of the Tulsa Police Department’s Forensic Laboratory weighed and tested the substance recovered from the storage unit. He determined that the shoebox contained 199.46 grams of Methamphetamine. Officer Cox conducted a second interview with Appellant at the county jail. Appellant admitted that he had Ziolkowski rent the storage unit. Although he claimed that someone else had placed the Methamphetamine in the storage unit he admitted that he was going to have to get the drugs. He recounted that he had told Ziolkowski to get rid of the drugs when the officers took them to jail. Ziolkowski testified against Appellant at trial. She indicated that Appellant sold controlled drugs for a living. He purchased drugs from an individual in Oklahoma City, weighed the drugs with a digital scale, placed them in smaller quantities, and repackaged them in smaller baggies for resale. Appellant refused to sell in amounts less than one-hundred-dollars-worth. Ziolkowski explained that on or about November 19, 2015, Appellant had her rent a storage unit in her name at the 71st Street Self Storage in Tulsa. A couple of days later, Appellant and Ziolkowski travelled to Oklahoma City and picked up Marijuana and one-half of a pound of Methamphetamine from Appellant’s supplier. Appellant also picked up some Cocaine that he intended to sell to a specific individual. Appellant put most of the Methamphetamine inside the storage unit.

Appellant testified in his own defense. He admitted that he sold drugs for a living but claimed that he did it solely to support his addiction. Appellant confessed that the drugs found in the bathroom, including the .66 grams of Methamphetamine, belonged to him. Although Appellant acknowledged he had advised Officer Cox that the other drugs in the room were his too, he claimed that he was trying to keep Ziolkowski out of trouble. He indicated that Ziolkowski and he were friends with benefits and claimed that he had purchased the Methamphetamine found in the toilet through Ziolkowski’s friends. Appellant asserted that the three baggies of Methamphetamine found in the canister belonged to Ziolkowski but then, inexplicably, admitted to possessing 14 grams of Methamphetamine. He denied possessing any of the Methamphetamine found in the storage unit. On cross-examination, Appellant admitted that he was a drug dealer. He affirmed that he knew that there was one-half of an ounce of Methamphetamine in the motel room. He further admitted that the Cocaine in the motel room was his and that he had two prior convictions for Possession of Cocaine with Intent to Distribute. Appellant testified that the day both Ziolkowski and he were booked into the jail, he had told her there was something in the storage unit and directed her go get rid of the sh*t. Appellant admitted that the drugs in the storage unit were not Ziolkowski’s drugs.

DISCUSSION

In his first proposition of error, Appellant contends that the trial court erred when it failed to sua sponte instruct the jury that Possession of Methamphetamine with Intent to Distribute was a lesser included offense of Trafficking in Illegal Drugs. He concedes that he failed to request these instructions at trial. Therefore, we find that he has waived appellate review of this claim for all but plain error. We review his claim pursuant to the test set forth in Simpson v. State, and determine whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice.

Reviewing the record, we find that Appellant has not shown that plain error occurred within the jury instructions. The Oklahoma Legislature has codified the lesser included offense doctrine. Section 916 provides: The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. Historically, this Court used the elements test to determine whether an offense was a lesser included offense of the charged offense. This Court in Shrum determined that lesser related offenses met the requirement of a necessarily included offense within § 916. However, the defendant’s due process right to notice of the charges against which he must defend limits a trial court’s discretion in instructing on lesser related offenses. [T]he trial court should instruct the jury on any lesser offense that is reasonably supported by the evidence, so long as the accused is not unfairly surprised by the lesser-offense theory such that he had no adequate opportunity to defend against it.

In the present case, the State charged Appellant with Trafficking in Illegal Drugs for his possession of more than 220 grams of crystal Methamphetamine. Appellant argues that this offense necessarily includes the lesser offense of Possession of Controlled Drug with Intent to Distribute. Following Ott v. State, this Court has determined that the crime of Possession with Intent to Distribute is not a legally recognized lesser included to the crime of Trafficking.

This Court has repeatedly recognized that the Shrum test involved lesser related offenses. Applying this test to the present case, we find that the crime of Possession with Intent to Distribute is a lesser related offense to the crime of Trafficking. The statutory provisions enacting these offenses are both set forth within Chapter 2 of Title 63. It is apparent that in enacting these provisions, the Oklahoma Legislature intended to protect the public health by criminalizing distribution and possession of Controlled Dangerous Substances. Thus, both offenses fall within the same category of crime and are closely or inherently related.

As the evidence did not warrant an instruction on the lesser related offense, we conclude that Appellant has not shown that error, plain or otherwise, occurred. Proposition One is denied.

In his second and third propositions of error, Appellant contends that the trial court erred when it failed to sua sponte instruct the jury that Possession of a Controlled Drug was a lesser included offense of Possession of Controlled Drug with Intent to Distribute. He concedes that he waived appellate review of this claim for all but plain error when he failed to request this instruction at trial. We review his claim pursuant to the test set forth above and determine whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights.

Reviewing the record, we find that Appellant has not shown that plain error occurred within the jury instructions. The State charged Appellant with Possession of Controlled Drug with Intent to Distribute for his possession of the Marijuana and Cocaine recovered from the motel room toilet. Appellant argues that this offense necessarily includes the lesser offense of Possession of a Controlled Drug. Therefore, we review the alleged lesser offense to determine if it is a lesser included or lesser related offense to the charged offense. This Court has previously recognized that the crime of Possession of Controlled Drug is a lesser included offense to the crime of Possession of Controlled Drug with Intent to Distribute.

Having determined that Possession of Controlled Drug was a lesser related offense of the charged offense, we must determine whether the trial evidence warranted an instruction on the lesser related offense. In the case at hand, there was evidence which would have allowed a rational jury to find Appellant guilty of the crime Possession of Controlled Drug. However, the evidence would not have allowed a jury to rationally acquit Appellant of the charged offense of Possession of Controlled Drug with Intent to Distribute.

As the evidence did not warrant an instruction on the lesser related offense, we conclude that Appellant has not shown that error, plain or otherwise, occurred. Propositions Two and Three are denied.

In his fourth proposition of error, Appellant challenges the effectiveness of defense counsel. This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington. Appellant argues that counsel was ineffective for failing to raise the challenges that he now raises in Propositions One, Two, and Three. Since the merits of the underlying claims have been rejected, we find that Appellant has not shown ineffective assistance of counsel. Proposition Four is denied.

DECISION

The Judgment and Sentence of the District Court is hereby AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 63 § 2-415
  2. Okla. Stat. tit. 63 § 2-401(A)(1)
  3. Okla. Stat. tit. 63 § 2-405
  4. Okla. Stat. tit. 21 § 454
  5. Miranda v. Arizona, 384 U.S. 436 (1966)
  6. Stewart v. State, 2016 OK CR 9
  7. Simpson v. State, 1994 OK CR 40
  8. 22 O.S.2011 § 916
  9. Shrum v. State, 1999 OK CR 41
  10. State v. Tubby, 2016 OK CR 17
  11. Ott v. State, 1998 OK CR 51
  12. Bivens v. State, 2018 OK CR 33
  13. Dufries v. State, 2006 OK CR 13
  14. Childress v. State, 2000 OK CR 10
  15. McHam v. State, 2005 OK CR 28
  16. Grant v. State, 2002 OK CR 36
  17. Ball v. State, 2007 OK CR 42
  18. White v. State, 2019 OK CR 2
  19. Gilson v. State, 2000 OK CR 14
  20. Tryon v. State, 2018 OK CR 20
  21. Lee v. State, 2018 OK CR 20

Oklahoma Statutes citations:

  • 63 O.S. Supp. 2015 § 2-415 - Trafficking in Illegal Drugs
  • 63 O.S. Supp. 2012 § 2-401(A)(1) - Unlawful Possession of a Controlled Drug with Intent to Distribute
  • 63 O.S. 2011 § 2-405 - Unlawful Possession of Drug Paraphernalia
  • 21 O.S. 2011 § 454 - Destroying Evidence
  • 22 O.S. 2011 § 916 - 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:

  • Stewart v. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514.
  • Simpson v. State, 1994 OK CR 40, 876 P.2d 690.
  • Shrum v. State, 1999 OK CR 41, I 5, 991 P.2d 1032, 1034.
  • State v. Tubby, 2016 OK CR 17, I 5, 387 P.3d 918, 920.
  • Ott v. State, 1998 OK CR 51, 967 P.2d 472.
  • Bivens v. State, 2018 OK CR 33, I 24, 431 P.3d 985, 994-95.
  • Dufries v. State, 2006 OK CR 13, I 20, 133 P.3d 887, 891.
  • Ball v. State, 2007 OK CR 42, I 31, 173 P.3d 81, 90.
  • Grant v. State, 2002 OK CR 36, I 48, 58 P.3d 783, 795.
  • Glossip v. State, 2001 OK CR 21, I 28, 29 P.3d 597, 603-04.
  • Childress v. State, 2000 OK CR 10, I 14, 1 P.3d 1006, 1011.
  • McHam v. State, 2005 OK CR 28, I 13, 126 P.3d 662, 668.
  • Davis v. State, 2011 OK CR 29, I 101, 268 P.3d 86, 116.
  • White v. State, 2019 OK CR 2, I 14, P.3d.
  • Gilson v. State, 2000 OK CR 14, I 113, 8 P.3d 883, 917.
  • Wilson v. State, 1994 OK CR 5, 871 P.2d 46, 49.
  • Hill v. State, 1988 OK CR 251, 764 P.2d 210, 213.
  • Backus v. State, 1981 OK CR 129, 635 P.2d 1021, 1022.
  • Tryon v. State, 2018 OK CR 20, I 66, 423 P.3d 617, 638.
  • Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).

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