Donald Antwan Mayberry v The State Of Oklahoma

RE-2017-801

Filed: Apr. 18, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Donald Antwan Mayberry appealed his conviction for violating probation. His conviction and sentence were for revoking his ten-year suspended sentences due to new crimes. The court found that he had made a bomb, used drugs, and drove without a license while on probation. Judge Henderson agreed to revoke his suspended sentences. Mayberry argued that there wasn't enough evidence to show he made a bomb and that revoking his sentence was too harsh. The appeals court decided that the judge had enough evidence to find Mayberry violated his probation rules, and they upheld the decision. Judge Kuehn dissented.

Decision

The order of the District Court of Oklahoma County revoking in full Appellant's ten year concurrent suspended sentences in Case No. CF-2015-6624 is AFFIRMED.

Issues

• Was there sufficient competent evidence to prove Mr. Mayberry manufactured an explosive device in violation of due process clauses?
• Did the trial court abuse its discretion by revoking Mr. Mayberry's sentence in full in violation of his due process rights, resulting in an excessive sentence?

Findings

• the court did not err in finding sufficient evidence to support the charge of manufacturing an explosive device
• the trial court did not abuse its discretion in revoking Appellant's sentences in full

RE-2017-801

Apr. 18, 2019

Donald Antwan Mayberry

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE:

Appellant, Donald Antwan Mayberry, appeals from the revocation in full of his ten year concurrent suspended sentences in Case No. CF-2015-6624 in the District Court of Oklahoma County, by the Honorable Timothy R. Henderson, District Judge.

On March 4, 2016, Appellant entered a plea of guilty to two counts of Assault and Battery With a Dangerous Weapon. He was convicted and sentenced to concurrent terms of ten years on each count with the sentences suspended under rules and conditions of probation.

On June 12, 2017, the State filed an application to revoke Appellant’s suspended sentences alleging he violated probation by committing the new crimes of Count 1: Manufacturing or Possessing an Explosive Device; Count 2: Possession of Drug Paraphernalia; and Count 3: Driving While Suspended, all as charged in Oklahoma County District Court Case No. CF-2017-2848. On July 13, 2017, the State filed an amended application to revoke Appellant’s suspended sentences adding alleged violations of probation that Appellant used methamphetamine while on probation, and failed to pay probation fees.

On March 30, 2017, the hearing on the applications to revoke was held before Judge Henderson. At the revocation hearing, the State first called Anthony Lee (Lee), a Sergeant with the Midwest City Police Department. On May 7, 2017, Lee responded to a call about a vehicle with a missing tag light. Lee made a traffic stop of Appellant’s pickup and determined Appellant was driving with an expired license. Lee called a K-9 unit, and the dog alerted on the car. The officers found alprazolam pills and a glass pipe with burned white residue in it. Lee found and opened an ammo box in the bed of Appellant’s pickup. Lee opened the ammo box, found what looked like bomb materials, and called the bomb squad.

The State’s second witness was Scott Dawson (Dawson), a field supervisor and bomb technician with the Midwest City Police Department. Dawson testified Appellant’s bomb was a typical IED (improvised explosive device) that included a can of gunpowder and a battery. Dawson said all components necessary to have a fully functional bomb were inside the ammo box. Dawson said the bomb was wired to make a sound when the lid was opened, but it was not wired to explode. Dawson said that if the wire to the speaker had been put into the can of gunpowder, the bomb would have been capable of exploding.

The State’s final witness was Brooke LeFlore (LeFlore), Appellant’s probation officer. LeFlore testified that Appellant tested positive for methamphetamine on April 4, 2017, and that he admitted being addicted for twenty years. After LeFlore’s testimony, the State rested. Appellant presented no evidence.

After hearing the evidence and arguments, Judge Henderson found that Appellant had violated his probation by manufacturing an explosive device, by possessing drug paraphernalia, by driving with license suspended, and by using methamphetamine while on probation. Judge Henderson did not find that Appellant had failed to pay probation fees. Judge Henderson revoked Appellant’s concurrent ten year suspended sentences in full.

Appellant filed this appeal asserting two propositions of error:

PROPOSITION I: THE STATE FAILED TO PRESENT SUFFICIENT COMPETENT EVIDENCE TO PROVE MR. MAYBERRY MANUFACTURED AN EXPLOSIVE DEVICE IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE FEDERAL AND STATE CONSTITUTIONS.

PROPOSITION II: THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING MR. MAYBERRY’S SENTENCE IN FULL IN VIOLATION OF HIS DUE PROCESS RIGHTS RESULTING IN AN EXCESSIVE SENTENCE.

ANALYSIS

In his first proposition, Appellant argues that the State did not present sufficient evidence to prove he had manufactured an explosive device because no evidence was presented of Appellant’s intent that the bomb be used, as required by 21 O.S.2011, § 1767.1(A)(4); or evidence that Appellant made the bomb for another person or sent the bomb to another person, as required by 21 O.S.2011, § 1767.1(A)(8).

Section 1767.1(A)(4), (8), provides:

A. Any person who shall willfully or maliciously commit any of the following acts shall be deemed guilty of a felony:

4. Manufacture, sell, transport, or possess any explosive, the component parts of an explosive, an incendiary device, or simulated bomb with knowledge or intent that it or they will be used to unlawfully kill, injure or intimidate any person, or unlawfully damage any real or personal property; or

8. Manufacture, sell, deliver, mail or send an explosive, incendiary device, or simulated bomb to another person; or

The standard of review applied to revocation proceedings is abuse of discretion. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557. Alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence. Tilden, 2013 OK CR 10 at I 5, 306 P.3d at 556. There was more than sufficient evidence to at least show that Appellant manufactured an explosive or simulated bomb with intent that it be used to intimidate any person. 21 O.S.2011, § 1767.1(A)(4). Moreover, Judge Henderson found Appellant committed four violations of the terms of his suspended sentences; three of which have not been challenged by Appellant. Violation of even one condition of probation is sufficient to justify revocation of a suspended sentence. Tilden, 2013 OK CR 10 at 5, 306 P.3d at 556. Appellant hasn’t established that Judge Henderson erred or abused his discretion by finding Appellant had violated terms and conditions of his probation. Proposition I is denied.

The decision of the trial court to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. Judge Henderson had more than sufficient evidence to show that Appellant violated terms and conditions of his probation. Moreover, even if the elements of Section 1767.1 were not fully established, no probationer should be making bombs, active or inert, real or simulated. Based upon the circumstances of this case, and the information before him, Judge Henderson’s decision to revoke Appellant’s concurrent ten year suspended sentences in full cannot be considered an abuse of discretion. Proposition II is denied.

DECISION

The order of the District Court of Oklahoma County revoking in full Appellant’s ten year concurrent suspended sentences in Case No. CF-2015-6624 is 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 filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 1767.1(A)(4)
2. 21 O.S.2011, § 1767.1(A)(8)
3. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557
4. Tilden, 2013 OK CR 10 at I 5, 306 P.3d at 556
5. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
6. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1767.1(A)(4) - Intent to use explosive device unlawfully
• Okla. Stat. tit. 21 § 1767.1(A)(8) - Sending explosive device to another person
• Okla. Stat. tit. 22 § 1051 - Probation revocation procedures

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:

• Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557
• Tilden v. State, 2013 OK CR 10 at I 5, 306 P.3d at 556
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565