Ashley Dawn Bost v State Of Oklahoma
F-2018-646
Filed: Jun. 27, 2019
Not for publication
Prevailing Party: State Of Oklahoma
Summary
# Ashley Dawn Bost appealed her conviction for drug-related charges. Conviction and sentence affirmed. Judge Kuehn dissented.
Decision
The Judgments and Sentences of the District Court are 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 a violation of the prohibition against multiple punishment for a single offense regarding Counts 1 and 2?
- Did the appellant waive her right to challenge the double punishment allegation by failing to raise it during the trial?
- Was there any actual or obvious error affecting the appellant's substantial rights pertaining to the double punishment claim?
- Did the convictions for trafficking in methamphetamine and possession of oxycodone constitute separate and distinct crimes requiring different proof?
Findings
- Appellant's convictions for Counts 1 and 2 do not violate the prohibition against multiple punishment for a single offense.
- There was no plain error in the trial proceedings.
- Appellant's Judgments and Sentences are affirmed.
F-2018-646
Jun. 27, 2019
Ashley Dawn Bost
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
JOHN D. HADDEN, JUDGE:
Appellant, Ashley Dawn Bost, was tried and convicted at a jury trial in LeFlore County District Court, Case No. CF-2015-94, of Count 1: Trafficking in Illegal Drugs-Methamphetamine, in violation of 63 O.S.Supp.2014, § 2-415; Count 2: Possession of a Controlled Dangerous Substance-Oxycodone, in violation of 63 O.S.Supp.2012, § 2-402; Count 3: Possession of a Firearm During the Commission of a Felony, in violation 21 O.S.Supp.2012, § 1287; and Count 4: Unlawful Possession of Drug Paraphernalia, in violation of 63 O.S.Supp.2011, § 2-405. The jury recommended punishment of six years imprisonment on Count 1, two years imprisonment and a $2,500.00 fine on Count 2, two years imprisonment and a $1,000.00 fine on Count 3, and a $1,000.00 fine on Count 4. The Honorable Jonathan Sullivan, District Judge, presided at trial and sentenced Bost in accordance with the jury’s verdicts. Judge Sullivan also ordered that Counts 1, 2 and 3 run consecutively each to the other. The court further imposed various costs and fees. Bost now appeals, raising one proposition of error before this Court:
I. APPELLANT’S CONVICTIONS FOR COUNTS 1 AND 2 VIOLATE THE PROHIBITION AGAINST MULTIPLE PUNISHMENT FOR A SINGLE OFFENSE.
After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s Judgments and Sentences are AFFIRMED.
Proposition I: Appellant failed to articulate any objection at trial alleging a double punishment violation under 21 O.S.2011, § 11, and thus has waived all but plain error review. Bivens v. State, 2018 OK CR 33, ¶ 11, 431 P.3d 985, 992; Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693. To be entitled to relief under the plain error doctrine, Appellant must show the existence of an actual error (i.e., deviation from a legal rule), that is plain or obvious, and that affects her substantial rights, meaning the error affected the outcome of the proceeding. Bramlett v. State, 2018 OK CR 19, ¶ 23, 422 P.3d 788, 796. If these elements are met, [t]his 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. Id. (quoting Stewart v. State, 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514); 20 O.S.2011, § 3001.1. Appellant fails to show actual or obvious error. The proper analysis of a Section 11 claim focuses on the relationship between the crimes. Sanders v. State, 2015 OK CR 11, ¶ 6, 358 P.3d 280, 283. The factors to be considered in this analysis are: 1) the particular facts of each case; 2) whether those facts set out separate and distinct crimes; and 3) the intent of the Legislature. Sanders, 2015 OK CR 11, ¶ 8, 358 P.3d at 284. If the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent. Id. at ¶ 6. However, where each offense requires proof of a fact which the other does not, prosecution for both offenses is not prohibited under Section 11. Bivens, 2018 OK CR 33, ¶ 12, 431 P.3d at 992; Lamar v. State, 2018 OK CR 8, ¶ 53, 419 P.3d 283, 297. Here, Appellant was charged and convicted of violating two separate and distinct crimes requiring different proof—trafficking in methamphetamine (63 O.S.Supp.2014, § 2-415) and possession of oxycodone (63 O.S.Supp.2012, § 2-402). Each offense contains different elements, namely, the quantity of drug possessed. See OUJI-CR (2d) 6-13; OUJI-CR (2d) 6-6. Thus, as each requires different proof, we find Appellant’s Counts 1 and 2 convictions do not violate the Section 11 double punishment prohibition. Bivens, 2018 OK CR 33, ¶ 12, 431 P.3d at 992. There is no error, let alone, plain error. Appellant’s sole proposition of error is denied.
DECISION
The Judgments and Sentences of the District Court are 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.
Footnotes:
- 63 O.S.Supp.2014, § 2-415
- 63 O.S.Supp.2012, § 2-402
- 21 O.S.Supp.2012, § 1287
- 63 O.S.Supp.2011, § 2-405
- 21 O.S.2011, § 11
- OUJI-CR (2d) 6-13
- OUJI-CR (2d) 6-6
Oklahoma Statutes citations:
- Okla. Stat. tit. 63 § 2-415 (2014) - Trafficking in Illegal Drugs
- Okla. Stat. tit. 63 § 2-402 (2012) - Possession of a Controlled Dangerous Substance
- Okla. Stat. tit. 21 § 1287 (2012) - Possession of a Firearm During the Commission of a Felony
- Okla. Stat. tit. 63 § 2-405 (2011) - Unlawful Possession of Drug Paraphernalia
- Okla. Stat. tit. 21 § 11 (2011) - Prohibition Against Multiple Punishment for a Single Offense
- Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error Review
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:
- Bivens v. State, 2018 OK CR 33, I 11, 431 P.3d 985, 992
- Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693
- Bramlett v. State, 2018 OK CR 19, I 23, 422 P.3d 788, 796
- Stewart v. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514
- Sanders v. State, 2015 OK CR 11, I 6, 358 P.3d 280, 283
- Lamar v. State, 2018 OK CR 8, I 53, 419 P.3d 283, 297