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ORIGINAL 41045999251* IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA NAJEE JAMALL cox, ) Appellant, NOT FOR PUBLICATION ) -VS- ) No. F-2018-901 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA FEB 13 2020 SUMMARY OPINION JOHN D. HADDEN CLERK LEWIS, PRESIDING JUDGE: Appellant, Najee Jamall Cox, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2014-5486 in the District Court of Oklahoma County, by the Honorable Ray C. Elliott, District Judge. On January 30, 2017, Appellant entered a plea of guilty to Burglary in the First Degree, and Judge Elliott deferred judgment and sentencing for seven years until January 29, 2024, pursuant to rules and conditions of probation. On March 20, 2018, the State filed an Application to Accelerate Deferred Sentence alleging that Appellant violated probation by (1) committing the new crime of possession of CDS, as charged in Oklahoma County District Court Case No. CM-2018-447; (2) admitting to routine possession/use of marijuana prior to January 17, 20181; (3) committing the new crime of possession of drug paraphernalia; and (4) committing the new crime of failure to properly stop. On August 14, 2018, the State filed an Amended Application to Accelerate Deferred Sentence adding violations of probation that Appellant (5) failed to pay court costs; and (6) failed to pay district attorney prosecution reimbursement. The hearing before Judge Elliott on the applications to accelerate was also held on August 14, 2018. At the start of the hearing, counsel for Appellant asked for a continuance because his co-defendant in Oklahoma County District Court Case No. CM-2018-447 was not present to testify. Judge El- liott asked if the co-defendant had been subpoenaed to testify that day at the acceleration hearing, and Appellant responded, “No, sir.” Judge Elliott denied the motion for continuance. The State first called Melissa Galvez (“Galvez”) who supervised 1 The date of the new offense alleged as the first violation. -2- Appellant’s probation for a period of time. Galvez reviewed reports and testified Appellant had violated his terms and conditions of probation by not abstaining from illegal drug use, by picking up new law violations, and by not timely notifying the probation office of his traffic stop for running a stop sign. Appellant admitted to Galvez on January 30, 2018, that he had used marijuana the day before, and every other day before that. Appellant also tested positive for marijuana on June 27, 2018. Galvez testified that on May 10, 2018, Appellant still owed $176.00 on his restitution, and had not provided verification any of the balance had been paid off. The State’s second witness was Officer Julian Barrie (“Officer Barrie”), with the Oklahoma City Police Department, who made a traffic stop of Appellant’s vehicle on January 17, 2018. Officer Barrie testified Appellant’s vehicle failed to come to a complete stop prior to entering an intersection. As he approached the vehicle, Officer Barrie saw Appellant reaching for the center console, and the passenger reaching into the back seat behind the front passenger seat. Appellant rolled the driver’s side window down about two inches, and refused Officer Barrie’s request to roll the window down further. -3- Through the window, Officer Barrie smelled the odor of unburned marijuana coming from inside the vehicle and detained both Appellant and the passenger. The passenger confirmed to Officer Barrie that a backpack sitting in front of the front passenger seat was his, but denied that anything else in the vehicle belonged to him. The passenger’s backpack contained a beverage thermos, and inside the thermos was $36.00 and an overwhelmingly strong odor of unburned marijuana, but no marijuana. During a search of the vehicle, Officer Barrie found a clear plastic bag tied in a knot behind the front passenger seat of the vehicle that contained unburned marijuana and weighed approximately 3.75 grams. Officer Barrie found a digital scale inside the front center console that had marijuana crumbs or residue on it; and also found an empty container with the distinct strong odor of marijuana. Based upon the types of items he found inside the vehicle and the circumstances of the stop, Officer Barrie arrested both Appellant and the passenger for possessing marijuana with intent to distribute. The State’s final witness was Lene’ Mitchell (“Mitchell”), probation coordinator for the Oklahoma County District Attorney’s -4- Office. Mitchell testified that Appellant had paid nothing toward the $960.00 balance on District Attorney reimbursement fees. Mitchell acknowledged that Appellant was on probation with DOC, not the District Attorney’s Office, and thus she never had any contact with Appellant. Mitchell noted that State’s Exhibit 5, the District Attorney’s Prosecution Reimbursement Notice requiring Appellant to pay $40.00 per month beginning 30 days from the date of his plea on January 30, 2017, had been signed by Appellant. Mitchell testified from State’s Exhibit 6, a certified copy of the Docket Sheet for Case No. CF-2014-5486, that as of February 5, 2018, Appellant’s balance due on court costs was $ $154.25. After Mitchell’s testimony, the State rested. Appellant testified that he was not guilty of any charges relating to the traffic stop, because his passenger was responsible for all of the items found in the vehicle. Appellant testified the probation office told him he was not delinquent on restitution or court costs. Appel- lant testified he had never previously been told that he owed a Dis- trict Attorney Reimbursement Fee. On cross-examination, Appellant acknowledged that he owned and was in control of the vehicle that -5- was stopped by Officer Barrie. He denied ever seeing or smelling ma- rijuana in his vehicle. Appellant was shown State’s Exhibits 4 and 5 and acknowledged his signature on the documents, but again denied ever being advised of payments he was supposed to make or condi- tions of probation he was required to abide by. Appellant also denied ever admitting to Galvez that he had used marijuana. After his tes- timony, Appellant rested. After hearing evidence and arguments, Judge Elliott first noted it didn’t matter that the charges in Case No. CM-2018-447 had not been prosecuted to a plea or trial because of the differing burdens of proof between trials and acceleration proceedings. Judge Elliott found that Appellant was clearly on notice of his obligation to pay District Attorney Reimbursement fees as shown by his signature on State’s Exhibit 5. Judge Elliott also took judicial notice that Appellant’s plea counsel, now deceased, was a good lawyer who had a reputation of thoroughly explaining to his clients how, when and where to pay fines, fees and costs. Judge Elliott found that Appellant was guilty of all probation violations charged in the applications to accelerate. Judge Elliott convicted Appellant of Burglary in the First -6- Degree and sentenced him to ten years imprisonment. Appellant appeals asserting six propositions of error: PROPOSITION I: THE ACCELERATION OF DEFERRED JUDGMENT AND SENTENCE MUST BE VACATED OR REDUCED, BECAUSE THE STATE’S EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT MR. COX POSSESSED THE MARIJUANA FOUND IN THE FLOORBOARD BEHIND THE PASSENGER SEAT, WHERE OFFICER BARRIE OBSERVED PASSENGER ANDREW WILLIAMS REACHING AS THE OFFICER APPROACHED THE CAR. PROPOSITION II: THE ACCELERATION OF DEFERRED JUDGMENT AND SENTENCE MUST BE VACATED OR REDUCED, BE- CAUSE THE STATE’S EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT MR. COX POSSESSED THE PAR- APHERNALIA FOUND IN HIS PASSENGER’S BACK- PACK, ON THE FLOORBOARD NEAR HIS PASSENGER’S FEET, AND IN A CENTER CONSOLE OF THE CAR. PROPOSITION III: MR. COX WAS DENIED HIS CONSTITUTIONAL DUE PROCESS RIGHT TO PRESENT SWORN TESTIMONY ON HIS BEHALF AT HIS ACCELERATION HEARING. PROPOSITION IV: THE ACCELERATION MUST BE VACATED, AS IT OCCURRED ABSENT THE CONSTITUTIONALLY- MANDATED NOTICE THAT THE STATE SOUGHT TO ACCELERATE BECAUSE APPELLANT FAILED TO PAY A DISTRICT ATTORNEY FEE HE WAS UNAWARE HE WAS STILL OBLIGATED TO PAY. -7- PROPOSITION V: THE TRIAL COURT IMPROPERLY TOOK JUDICIAL NOTICE OF A DISPUTED MATTER AT THE ACCELERATION HEARING, IN DENIAL OF MR. COX’S CONSTITUTIONALLY-MANDATED RIGHT TO CONFRONT THE WITNESSES AND EVIDENCE AGAINST HIM. PROPOSITION VI: ALTERNATIVELY, ANY FAILURE TO ENSURE WITNESSES AND EVIDENCE TO SUPPORT MR.COX’S DEFENSE AND PRESERVE ISSUES FOR REVIEW WAS THE RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL. ANALYSIS In Propositions I and II, Appellant claims that the evidence was insufficient to prove that he actually possessed either the marijuana found in a baggie behind the front passenger seat of his car, or any of the drug paraphernalia found in his car. To support these arguments, Appellant must prove that no rational trier of fact could have found the essential elements of these alleged violations of probation by a preponderance of the evidence. Hogan U. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919 (all sufficiency of the evidence claims are reviewed under the standard established in Spuehler U. State, 1985 OK CR 132, “I 7, 709 P.2d 202, -8- 203-04); Whitaker U. State, 2015 OK CR 1, “I 5, 341 P.3d 87, (probation violations must be proven by a preponderance of the evidence). The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts. Rutan v. State, 2009 OK CR 3, IT 49, 202 P.3d 839, 848; see also McGuire U. State, 1986 OK CR 102, I 5, 721 P.2d 817, 818. Proof of the knowledge and control necessary to justify an inference of possession (i.e., constructive possession) of contraband can be and usually is circumstantial. Bivens U. State, 2018 OK CR 33, I 8, 431 P. .3d 985, 992. Possession may be individual or joint, actual or constructive. Bivens, 2018 OK CR 33 at I 9, 431 P.3d at 992. Even in the absence of proof of possession and exclusive control, constructive possession may still be proven if “there are additional independent factors showing [the accused’s] knowledge and control.” Id. Such independent factors may consist of “incriminating conduct by the accused, or any other circumstance from which possession may be fairly inferred.” Id. Judge Elliott had evidence before him that Appellant and his -9- passenger were making furtive gestures as Officer Barrie approached Appellant’s vehicle; that Appellant refused requests to roll his window down more than two inches; that an odor of unburned marijuana was coming from inside Appellant’s vehicle; and that a baggie of marijuana and drug paraphernalia were found in Appellant’s vehicle within reach of both Appellant and the passenger. Such evidence supports a finding that Appellant had sufficient knowledge and control of marijuana and paraphernalia to at least constitute joint and constructive possession of those items. Bivens, 2018 OK CR 33 at 99 8, 9, 431 P.3d at 992. Appellant has not established that Judge Elliott was irrational in finding by a preponderance of the evidence that Appellant’s possession of such items constituted probation violations. Hogan, supra; Rutan, supra. Propositions I and II are denied. In Proposition III, Appellant claims he was denied the right to present the testimony of his co-defendant in Oklahoma County District Court Case No. CM-2018-447 when Judge Elliott denied his motion for a continuance of the acceleration hearing. Appellant contends that it was too severe a sanction to deny a continuance due -10- to the failure of Appellant’s counsel to follow the statutory subpoena procedure to compel the co-defendant’s presence. First, Judge Elliott neither denied Appellant the right to present the testimony of his co-defendant in the other case, nor refused to hear testimony offered in Appellant’s behalf. Contra Crow U. State, 1971 OK CR 440, 3, 490 P.2d 773, 774. Appellant had a meaningful opportunity to secure and present the testimony of his co-defendant, but failed to do SO. He has not established that he was denied the minimum requirements of due process afforded to probationers facing revocation. Gagnon U. Scarpelli, 411 U.S. 778, 786, (1973). Second, Petitioner has not established that the testimony of his co-defendant would negate the evidence analyzed in Propositions I and II above that Appellant had sufficient knowledge and control of marijuana and paraphernalia to at least constitute joint and constructive possession of those items. Bivens, supra; Hogan, supra; Rutan, supra. Third, Appellant was found guilty of multiple probation violations, and even one violation can be sufficient to justify revocation of probation. Tilden U. State, 2013 OK CR 10, 9 7, 306 P.3d 554, 557. Finally, the State is correct that Appellant’s -11- request for modification of his sentence is outside the scope of this acceleration appeal. The scope of review in an appeal challenging only errors in the acceleration proceeding is limited to the validity of the acceleration order. Rule 1.2(D)(5)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020). Appellant’s request for modification of his sentence could have and should have been raised in a motion to withdraw his plea, and in direct appeal proceedings from his Judgment and Sentence. Rule 1.2(D)(5)(c), Rules, supra. Proposition III is denied. In Proposition IV, Appellant makes a “twofold” argument claiming that the evidence is insufficient to establish that his failure to pay the District Attorney prosecution reimbursement fee was knowing and willful, and that the amended application to accelerate filed on the day of the acceleration hearing failed to provide timely notice of this alleged violation. In Proposition V, Appellant claims the District Court erroneously took judicial notice of his plea counsel’s reputation in determining that Appellant had violated probation by failing to pay the District Attorney prosecution reimbursement fee. The State proved that Appellant had failed to pay any of his -12- District Attorney prosecution reimbursement fees. Appellant presented no evidence that he made sufficient bona fide efforts to pay or that his failure to pay was caused by his indigence. He thus failed to meet his burden of proof. Winbush, III, U. State, 2018 OK CR 38, II 7, 12, 433 P.3d 1275, 1278, 1279-80. During the acceleration hearing, sufficient evidence was presented that Appellant had adequate notice of his obligation to pay District Attorney prosecution reimbursement fees. Moreover, Appellant did not object on the grounds he didn’t have sufficient time to prepare a defense concerning his failures to pay, and in fact announced ready at the acceleration hearing. He has not established his claim of insufficient notice. The District Court’s comments concerning his plea counsel’s reputation were not relevant to the finding that Appellant violated probation by failing to pay fees. And again, Appellant was found guilty of multiple probation violations, and even one violation can be sufficient to justify revocation of probation. Tilden, 2013 OK CR 10 at 7, 306 P.3d at 557. Propositions IV and V are denied. In Proposition VI, Appellant claims his counsel was ineffective for failing to subpoena and ensure presentation of the testimony of -13- his co-defendant in Oklahoma County District Court Case No. CM- 2018-447. To support such a claim, Appellant must establish that his counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). As analyzed above, Appellant has not shown that his defense was prejudiced. Regardless of the co-defendant’s testimony, Appellant had sufficient knowledge and control of marijuana and paraphernalia to at least constitute joint and constructive possession of those items. And again, Appellant was found guilty of multiple probation violations, and even one violation can be sufficient to justify revocation of probation. Tilden, 2013 OK CR 10 at 7, 306 P.3d at 557. Proposition VI is denied. DECISION The order of the District Court of Oklahoma County accelerating Appellant’s deferred judgment and sentencing in Case No. CF-2014- 5486 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision. -14- AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE APPEARANCES IN APPEARANCES ON APPEAL THE DISTRICT COURT MATTHEW TATE WISE KIMBERLY D. HEINZE Attorney at Law Appellate Defense Counsel 2201 McKown Dr., Suite 3 P. O. Box 926 Norman, OK 73072 Norman, OK 73070 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT KIRK MARTIN MIKE HUNTER Assistant District Attorney Attorney General of Oklahoma County Office Building SHERI M. JOHNSON 320 Robert S. Kerr, Suite 505 Assistant Attorney General Oklahoma City, OK 73102 313 N.E. 21st Street COUNSEL FOR THE STATE Oklahoma City, OK 73105 COUNSEL FOR THE STATE OPINION BY: LEWIS, P.J. KUEHN, V.P.J.: Concur in Results LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur RA/F -15-

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