Dameon Tyrese Lundy v The State Of Oklahoma

F-2018-104

Filed: May 9, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Dameon Tyrese Lundy appealed his conviction for Possession of a Controlled Drug with Intent to Distribute. Conviction and sentence of 60 years imprisonment and a fine of $2,987. Rowland dissented.

Decision

The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in the trial court's denial of the defense counsel's motion to suppress?
• Did the evidence support Appellant's conviction for possession of a controlled drug with intent to distribute?
• Was Appellant's sentence excessive and requiring modification?

Findings

• the trial court did not err in denying the motion to suppress
• the evidence was sufficient to prove intent to distribute
• the sentence imposed was not excessive

F-2018-104

May 9, 2019

Dameon Tyrese Lundy

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Dameon Tyrese Lundy, was convicted by a jury in Tulsa County District Court, Case No. CF-2016-4383, of Possession of a Controlled Drug with Intent to Distribute (63 O.S.Supp.2012, § 2-401(A)(1)), After Conviction of Two or More Felonies. He was acquitted of a second charge, Possession of Drug Proceeds (63 O.S.2011, § 2-503.1). On January 19, 2018, the Honorable Kelly Greenough, District Judge, sentenced him in accordance with the jury’s recommendation to sixty years imprisonment and a fine of $2,987.

Appellant raises two propositions of error in support of his appeal:

PROPOSITION I. THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL’S MOTION TO SUPPRESS.

PROPOSITION II. APPELLANT’S CONVICTION WAS OBTAINED IN VIOLATION OF THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTION 7 OF THE OKLAHOMA CONSTITUTION, BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE INTENT TO DISTRIBUTE.

PROPOSITION III. APPELLANT RECEIVED AN EXCESSIVE SENTENCE THAT SHOULD SHOCK THE CONSCIENCE OF THIS COURT AND SHOULD BE MODIFIED.

After thorough consideration of these claims, the briefs of the parties, and the record before us on appeal, we affirm. During a police encounter outside a Tulsa-area bar, Appellant was found to be in possession of a quantity of marijuana, approximately $3000 in cash, as well as 41 pills of assorted controlled substances (23 hydrocodone, 6 oxycodone, 10 methamphetamine, 1 amphetamine, and 1 alprazolam) and material commonly used to package pills for retail sale.

As to Proposition I, although Appellant moved before trial to suppress the fruits of his encounter with police, he did not renew his objection at trial, so our review is for plain error only; he must prove that an error occurred, that the error is plain and obvious, and that the error affected his substantial rights. Seabolt v. State, 2006 OK CR 50, I 4, 152 P.3d 235, 237. We find no error, plain or otherwise, in the trial court’s admission of this evidence. The officers clearly had the right to approach Appellant in an open, public area, and speak to him. State U. Feeken, 2016 OK CR 6, I 6, 371 P.3d 1124, 1126. The bar was notorious for drug activity, and Appellant made furtive movements in his vehicle when he first spotted the officers. As they followed Appellant to the bar entrance, the officers noticed the smell of raw marijuana emanating from his person. The officers were authorized to ask a moderate number of questions to determine Appellant’s identity and to obtain information confirming or dispelling their suspicions. Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Prock U. State, 1975 OK CR 213, 18, 542 P.2d 522, 526. When Appellant admitted carrying marijuana, the officers had probable cause to arrest him and search his person incident to that arrest. Lozoya v. State, 1996 OK CR 55, I 35, 932 P.2d 22, 33; State U. Thomas, 2014 OK CR 12, I 5, 334 P.3d 941, 943-44. Proposition I is denied.

As to Proposition II, at trial Appellant’s strategy was to admit possession of controlled drugs, but to claim they were only for personal use. However, a rational juror could conclude, beyond a reasonable doubt, that Appellant was actually in the business of selling drugs, given the quantity and variety of drugs he was carrying, and the quantity and type of currency he was carrying (almost $3000, mostly in $20 bills). Jackson U. 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, I 7, 709 P.2d 202, 203-04; Newton v. State, 1991 OK CR 127, I 23, 824 P.2d 391, 396. The evidence supports Appellant’s conviction, and Proposition II is denied.

In Proposition III, Appellant claims his sentence should be modified, particularly since after his crime was committed, the Oklahoma Legislature lowered the punishment range for it; if charged today, he could receive no more than 20 years. 63 O.S.Supp.2018, § 2-401(B)(1). Nothing in this amendment, however, authorizes retroactive application to crimes committed before the effective date, and Appellant offers no legal authority requiring this Court to take remedial action in the posture of a direct appeal. Appellant was sentenced properly under the law in effect at the time of the offense. Williams U. State, 2002 OK CR 39, 9 4, 59 P.3d 518, 519. The jury’s sentence recommendation was informed by Appellant’s several prior convictions for similar drug crimes. The sentence imposed is not excessive. Proposition III is denied.

DECISION

The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 63 O.S.Supp.2012, § 2-401(A)(1)
2. 63 O.S.2011, § 2-503.1
3. Seabolt v. State, 2006 OK CR 50, ¶ 4, 152 P.3d 235, 237.
4. State v. Feeken, 2016 OK CR 6, ¶ 6, 371 P.3d 1124, 1126.
5. Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Prock v. State, 1975 OK CR 213, ¶ 18, 542 P.2d 522, 526.
6. Lozoya v. State, 1996 OK CR 55, ¶ 35, 932 P.2d 22, 33;
7. State v. Thomas, 2014 OK CR 12, ¶ 5, 334 P.3d 941, 943-44.
8. 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, ¶ 7, 709 P.2d 202, 203-04; Newton v. State, 1991 OK CR 127, ¶ 23, 824 P.2d 391, 396.
9. 63 O.S.Supp.2018, § 2-401(B)(1).
10. Williams v. State, 2002 OK CR 39, ¶ 4, 59 P.3d 518, 519.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(A)(1) - Possession of a Controlled Drug with Intent to Distribute
• Okla. Stat. tit. 63 § 2-503.1 - Possession of Drug Proceeds
• Okla. Stat. tit. 63 § 2-401(B)(1) - Punishment for Possession of a Controlled Drug
• Okla. Stat. tit. 21 § 701.8 - Sentencing for Prior Felony Convictions

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:

• Seabolt v. State, 2006 OK CR 50, I 4, 152 P.3d 235, 237
• State U. Feeken, 2016 OK CR 6, I 6, 371 P.3d 1124, 1126
• Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984)
• Prock U. State, 1975 OK CR 213, 18, 542 P.2d 522, 526
• Lozoya v. State, 1996 OK CR 55, I 35, 932 P.2d 22, 33
• State U. Thomas, 2014 OK CR 12, I 5, 334 P.3d 941, 943-44
• Jackson U. 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, I 7, 709 P.2d 202, 203-04
• Newton v. State, 1991 OK CR 127, I 23, 824 P.2d 391, 396
• Williams U. State, 2002 OK CR 39, 9 4, 59 P.3d 518, 519