Spencer Thomas Cato v State Of Oklahoma

F-2019-82

Filed: Aug. 27, 2020

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Spencer Thomas Cato appealed his conviction for multiple charges related to firearm and drug possession. His conviction and sentence included significant prison time and fines for various offenses. The court found that there were issues with how he was punished for possessing a firearm after a felony conviction and possessing a firearm while committing a felony, as they stemmed from the same act. The court decided to keep most of the convictions but reversed and ordered the dismissal of one charge (Count 2) because it violated rules against double punishment. Judge Rowland agreed with this decision, noting there was no evidence that Cato possessed the firearm at a different time than when he committed the drug offense.

Decision

Counts 1, 3, 4, 5 and 6 of the Judgment and Sentence are AFFIRMED. Count 2 of the Judgment and Sentence is REVERSED AND REMANDED to the district court with instructions to DISMISS.

Issues

• Was there a violation of the protections against double punishment due to convictions for both Count 2 and Count 3, each based on the same act?
• Did the evidence presented at trial demonstrate a temporal break between the acts underlying Counts 2 and 3?
• Were Counts 2 and 3 considered separate and distinct crimes requiring dissimilar proof under Oklahoma law?
• Did the trial court err in affirming the convictions under Count 2 for Possession of a Firearm After Former Conviction of a Felony due to a plain error in light of a violation of the statutory prohibition against multiple punishments?

Findings

• Count 2 of the Judgment and Sentence is reversed and remanded to the district court with instructions to dismiss.
• Counts 1, 3, 4, 5 and 6 of the Judgment and Sentence are affirmed.

F-2019-82

Aug. 27, 2020

Spencer Thomas Cato

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant, Spencer Thomas Cato, was tried and convicted by a jury in Tulsa County District Court, Case No. CF-2017-3445, of Count 1: Unlawful Possession of a Controlled Drug with Intent to Distribute, After Former Conviction of Two or More Felonies, in violation of 63 O.S.Supp.2012, § 2-401(B)(2); Count 2: Possession of a Firearm After Former Conviction of a Felony, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2014, § 1283; Count 3: Possession of a Firearm While in the Commission of a Felony, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2012, § 1287; Count 4: Resisting an Officer, a misdemeanor, in violation of 21 O.S.2011, § 268; Count 5: Failure to Carry Insurance/Security Verification Form, a misdemeanor, in violation of 47 O.S.Supp.2016, § 7-606; and Count 6: Driving with a License Canceled, Suspended or Revoked, a misdemeanor, in violation of 47 O.S.Supp.2016, § 6-303(B). The jury recommended the following sentences: Count 1-fifteen years imprisonment and a $10,000 fine; Count 2-six years imprisonment; Count 3-ten years imprisonment; Count 4-one year in the county jail and a $500 fine; Count 5-a $250 fine; and Count 6-one year in the county jail. The Honorable William D. LaFortune, District Judge, presided over Cato’s jury trial, sentenced Cato in accordance with the jury’s verdicts and imposed various costs and fees. Judge LaFortune ordered Counts 1 and 2 to run concurrently with each other, and Counts 3, 4 and 6 to run concurrently with each other but consecutively to Counts 1 and 2. Judge LaFortune further granted Cato credit for time served. Cato now appeals and raises the following proposition of error before this Court:

I. APPELLANT’S CONVICTIONS FOR BOTH COUNT [TWO] AND COUNT [THREE], EACH PREMISED UPON THE SAME ACT, OFFEND THE PROTECTIONS AGAINST DOUBLE PUNISHMENT.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we AFFIRM Counts 1, 3, 4, 5 and 6 of the Judgment and Sentence, but REVERSE and REMAND with instructions to DISMISS Count 2.

Cato claims he was punished twice for the same act when he was convicted and sentenced for Possession of a Firearm After Former Conviction of a Felony (Count 2) and Possession of a Firearm While in the Commission of a Felony (Count 3). He contends that his possession of the same gun served as the basis for the charges in Counts 2 and 3, and that there was no temporal break between the alleged acts. He maintains that the acts were therefore not separate and distinct and his convictions violate the statutory prohibition against multiple punishments for the same act under 21 O.S.2011, § 11.

Cato concedes his failure to raise a multiple punishment challenge at trial waives all but plain error on appeal. Frazier U. State, 2020 OK CR 7, IT 8, _P.3d__. Cato thus “has the burden in plain error review to demonstrate that ‘an error, plain or obvious under current law, adversely affected his substantial rights.” Id. (quoting Hammick U. State, 2019 OK CR 21, I 8, 449 P.3d 1272, 1275). “[T]his Court will not grant relief unless [such] error seriously affects the fairness, integrity, or public reputation of the judicial proceedings, or otherwise represents a miscarriage of justice.” Lavorchek U. State, 2019 OK CR 13, I 5, 443 P.3d 573, 577.

A Section 11 analysis “focus[es] on the relationship between the crimes, considering ‘(1) the particular facts of each case; (2) whether those facts set out separate and distinct crimes; and (3) the intent of the legislature.” Frazier, 2020 OK CR 7, 19 (quoting Sanders U. State, 2015 OK CR 11, I 8, 358 P.3d 280, 284). “If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma’s conviction and sentence under one section of law, bars the prosecution for the same act or omission under any other section of law. Id., § 11(A). However, “[i]f the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent.” Barnard v. State, 2012 OK CR 15, I 27, 290 P.3d 759, 767.

This case is controlled by Frazier and Sanders. As we observed in Frazier, the “unlawful possession of a firearm by a convicted felon is a status crime and generally separate and distinct from any subsequent criminal activity with the same firearm.” Id., 2020 OK CR 7, I 9 (citing Sanders, 2015 OK CR 11, I 7, 358 P.3d at 283-84). “While the crime of felon in possession is complete upon a convicted felon being in possession, either personally or constructively, of a weapon, it is the individual’s further actions that dictate whether additional criminal charges may arise from those acts.” Id.; see also Sanders, 2015 OK CR 11, I 8, 358 P.3d at 284.

In the present case, there was no evidence presented at trial showing Cato took any further actions beyond mere possession. See Sanders, 2015 OK CR 11, I 8, 358 P.3d at 284 (This Court analyzes Section 11 claims based on “the particular facts presented.”). The firearm used to support Cato’s Counts 2 and 3 charges was found in one of his pants pockets as were the illicit drugs. Moreover, the charging Information alleged the same time frame for both offenses-on or about July 10, 2017. The State presented no evidence at trial showing a temporal break between Cato’s act of felonious possessing the firearm (Count 2) and his possession of the same firearm while committing a felony (Count 3).

While a reasonable inference can be made that a temporal break between the challenged crimes existed because the crime of felon in possession is complete immediately upon possession, a reasonable inference can likewise be made that there was no genuine temporal break. Thus, under the reasoning of Frazier and Sanders, possession of the same firearm, with no evidence of a genuine temporal break between the individual acts, resulted in two charges and punishments in this case for the same act. Cato has therefore established the commission of a plain error stemming from a violation of Section 11. To remedy the error, we find the case should be remanded to the district court with instructions to dismiss Count 2.

DECISION Counts 1, 3, 4, 5 and 6 of the Judgment and Sentence are AFFIRMED. Count 2 of the Judgment and Sentence is REVERSED AND REMANDED to the district court with instructions to DISMISS. 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 delivery and filing of this decision.

OPINION BY: HUDSON, J.
LEWIS, P.J.: CONCUR
KUEHN, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR
ROWLAND, J.: SPECIALLY CONCUR

ROWLAND, JUDGE, SPECIALLY CONCURRING: I concur completely with reversing and dismissing Count 2 based upon the evidence in this record. There is no evidence that Cato, having prior felony convictions, took possession of the pistol at some point in time prior to coming into possession of the drugs. If there had been evidence that he possessed the pistol at any point other than during the commission of Count 1, the result would be different. The case shows how fact intensive and dependent 21 O.S.2011, § 11 issues can be.

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Footnotes:

1. Title 21 O.S.2011, § 11 provides in relevant part that: [A]n act or omission which is made punishable in different ways by different provisions of this title may be punished under any of such provisions, but in no case can a criminal act or omission be punished under more than one section of law; and an acquittal or
2. See Frazier, 2020 OK CR 7, I 10; Sanders, 2015 OK CR 11, 11 9-11, 358 P.3d at 284.
3. See Frazier at I 10.
4. See Anderson U. State, 1972 OK CR 289, I 6, 502 P.2d 1299, 1301.
5. If there had been evidence that he possessed the pistol at any point other than during the commission of Count 1, the result would be different.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2012) - Unlawful Possession of a Controlled Drug
• Okla. Stat. tit. 21 § 1283 (2014) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 1287 (2012) - Possession of a Firearm While in the Commission of a Felony
• Okla. Stat. tit. 21 § 268 (2011) - Resisting an Officer
• Okla. Stat. tit. 47 § 7-606 (2016) - Failure to Carry Insurance/Security Verification Form
• Okla. Stat. tit. 47 § 6-303 (2016) - Driving with a License Canceled, Suspended or Revoked
• Okla. Stat. tit. 21 § 11 (2011) - Double Punishment Prohibition

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Frazier v. State, 2020 OK CR 7, I 8, _P.3d__
• Hammick v. State, 2019 OK CR 21, I 8, 449 P.3d 1272, 1275
• Lavorchek v. State, 2019 OK CR 13, I 5, 443 P.3d 573, 577
• Sanders v. State, 2015 OK CR 11, I 8, 358 P.3d 280, 284
• Barnard v. State, 2012 OK CR 15, I 27, 290 P.3d 759, 767
• Anderson v. State, 1972 OK CR 289, I 6, 502 P.2d 1299, 1301