State Of Oklahoma v Christy Anne Selders

S-2009-667

Filed: Mar. 15, 2010

Not for publication

Prevailing Party: Christy Anne Selders

Summary

# The State of Oklahoma appealed its conviction for Christy Anne Selders. Conviction and sentence were dismissed for Count 1 - Endeavoring to Manufacture Controlled Drugs. Judge P. Thomas Thornbrugh dissented.

Decision

The order of the District Court of Tulsa County dismissing Count 1 in Case No. CF-2009-2031 is AFFIRMED. Pursuant to Rule 3.15, Rules, supra, the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there a valid consent to search obtained from the Appellee?
• Did the District Court abuse its discretion in sustaining the demurrer to the evidence for lack of probable cause?
• Was the evidence produced by the State sufficient to establish probable cause for binding the Appellee over for trial?

Findings

• The court did not err in ruling that the consent to search obtained from the Appellee was not voluntary.
• The court did not abuse its discretion in sustaining the demurrer to the evidence for lack of probable cause.
• The court did not err in sustaining the demurrer because the State did not produce sufficient evidence to establish probable cause.

S-2009-667

Mar. 15, 2010

State Of Oklahoma

Appellant

v

Christy Anne Selders

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE CHAPEL, JUDGE:

The State of Oklahoma, Appellant, appeals to this Court from an order of the reviewing judge affirming an adverse ruling of the preliminary hearing magistrate in Case No. CF-2009-2031 in the District Court of Tulsa County. On April 28, 2009, the Appellee was charged with Count 1 – Endeavoring to Manufacture Controlled Drugs; and Count 4 – Defrauding an Innkeeper.

On June 19, 2009, the preliminary hearing was conducted before the Honorable Allen Klein, Special Judge. After the State rested, the Appellee moved to quash and demurred to the evidence, alleging an illegal search of the hotel room and seizure of the evidence therein. Judge Klein sustained Appellee’s motion to quash and demurrer to the evidence, and dismissed Count 1 of the Information. The State announced its intent to appeal, pursuant to 22 O.S.2001, §§ 1098.1 – 1089.7, and Rule 6, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010).

The State’s appeal was assigned to a reviewing judge, the Honorable P. Thomas Thornbrugh, District Judge. On July 8, 2009, Judge Thornbrugh considered the preliminary hearing transcript and record, heard arguments of counsel, and took the matter under advisement. On July 9, 2009, Judge Thornbrugh announced he was sustaining Judge Klein’s decision, although for slightly different reasons. Judge Thornbrugh found the police had the right to make the initial search of the hotel room because of their good faith belief Appellee’s co-defendant could give them permission. Judge Thornbrugh did not believe Appellee’s search waiver was valid, and found there was nothing in the hotel room that the State linked to Appellee in a way that would entitle the State to bind her over for trial.

The State brings this appeal from the rulings of the District Court Judges. The State asserts the following propositions of error:

1. The District Court erred when it ruled the consent to search obtained from the Appellee was not voluntary.
2. The District Court abused its discretion in sustaining the demurrer to the evidence for lack of probable cause because the issue was not before the District Court.
3. The District Court erred in sustaining the demurrer because the State produced sufficient evidence to establish probable cause.

This appeal was automatically assigned to the Accelerated Docket of this Court pursuant to Rule 11.2(A)(4) of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010). The propositions or issues were presented to this Court in oral argument on February 25, 2010, pursuant to Rule 11.2(E). At the conclusion of oral argument, this Court voted four to zero to affirm the rulings of the District Court Judges.

In State appeals, this Court reviews the trial court’s decision to determine if the trial court abused its discretion. See State v. Love, 1998 OK CR 32, 12, 960 P.2d 368, 369. The State has not established that Judge Thornbrugh abused his discretion by finding that the evidence in the hotel room was not sufficiently linked to Appellee in a way that would allow her to be bound over for trial on Count 1. Id.

DECISION

The order of the District Court of Tulsa County dismissing Count 1 in Case No. CF-2009-2031 is AFFIRMED. Pursuant to Rule 3.15, Rules, supra, the MANDATE is ORDERED issued upon the filing of this decision.

APPEARANCES IN TRIAL COURT

Michael English
Assistant District Attorney
Tulsa County
500 S. Denver Ave, Suite 900
Tulsa, OK 74103

COUNSEL FOR APPELLANT

Marny Hill
Attorney at Law
P.O. Box 607
Tulsa, OK 74101

COUNSEL FOR APPELLEE

OPINION BY: CHAPEL, J.

C. JOHNSON, P.J.: Not Participating
A. JOHNSON, V.P.J.: Concur
LUMPKIN, J.: Concur
LEWIS, J.: Concur

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Footnotes:

1. 22 O.S.2001, §§ 1098.1 - 1089.7
2. Rule 6, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)
3. Rule 11.2(A)(4) of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)
4. Rule 11.2(E)
5. State v. Love, 1998 OK CR 32, 12, 960 P.2d 368, 369
6. Rule 3.15, Rules

Oklahoma Statutes citations:

No Oklahoma statutes found.

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:

• State v. Love, 1998 OK CR 32, I 12, 960 P.2d 368, 369