The State Of Oklahoma v Carl Edward Prince A/K/A Carl Edward Harper

S-2015-771

Filed: May 8, 2018

Not for publication

Prevailing Party: Carl Edward Prince A/K/A Carl Edward Harper

Summary

Carl Edward Prince, also known as Carl Edward Harper, appealed his conviction for possession of marijuana with intent to distribute, maintaining a place for selling controlled substances, and unlawful use of a police radio while committing a felony. The court affirmed the conviction and sentence for the first charge but dismissed the charge of maintaining a place for selling controlled substances. Judge Hudson dissented from this decision.

Decision

The Magistrate's order of August 4, 2105, sustaining Appellee's demurrer to the preliminary hearing evidence on Count 2 of the State's Information against Carl Edward Prince a/k/a Carl Edward Harper, in Garvin County District Court, Case No. CF-2013-19, and the reviewing judge's decision of August 25, 2105, upholding the Magistrate's order, are hereby AFFIRMED. Pursuant to Rule 3.15 of this Court's Rules, MANDATE IS ORDERED ISSUED on the filing of this decision.

Issues

• Was there sufficient evidence to establish probable cause for maintaining a place for keeping or selling a controlled substance under 63 O.S.2011, § 2-404(A)(6)?
• Did the preliminary hearing magistrate err in interpreting the habitualness requirement as necessary to prove maintaining a place for keeping or selling controlled substances?
• Did the Court of Criminal Appeals properly defer to the magistrate's factual determinations regarding the case's evidence?
• Was the evidence presented by the State adequate to carry the question of habitualness to a jury for Count 2 of the charges against the defendant?

Findings

• the court erred in affirming the magistrate's decision sustaining the demurrer to Count 2
• evidence was not sufficient to establish habitualness required for maintaining a place for keeping/selling controlled substances
• the habitualness requirement is necessary to establish probable cause under 63 O.S.2011, § 2-404(A)(6)

S-2015-771

May 8, 2018

The State Of Oklahoma

Appellant

v

Carl Edward Prince A/K/A Carl Edward Harper

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Appellee, Carl Edward Prince a/k/a Carl Edward Harper, was charged by Information in the District Court of Garvin County, Case No. CF-2013-19, with Count 1: Possession of Marijuana with Intent to Distribute within 2000 Feet of a School (63 O.S.Supp.2012, § 2-401(F)); Count 2: Maintaining Place for Keeping/Selling Controlled Substance (63 O.S.2011, § 2-404(A)(6)); and Count 3: Unlawful Use of a Police Radio while in Commission of a Felony (21 O.S. 2011, § 1214), all after former conviction of two or more drug related felonies. At the August 4, 2015, preliminary hearing, the Magistrate, the Honorable Trisha Misak, Special Judge, sustained Prince’s demurrer to Count 2.

The applicable statute under which Count 2 was brought states:

A. It shall be unlawful for any person:
6. To keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled dangerous substances in violation of this act for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this act.
63 O.S.2011, § 2-404(A)(6) (emphasis added).

In sustaining that demurrer, the Magistrate found, [T]here is not sufficient cause to believe the Defendant guilty of Count 2 of the complaint pursuant to Meeks v. State, 1994 OK CR 20, I 7, 872 P.2d 936, 939, requiring proof of more than an isolated incident of activity. (O.R. 11.) The State appealed the Magistrate’s decision under the authority of 22 O.S.2011, § 1089.1. On August 25, 2015, the Honorable George W. Butner, District Judge, heard that appeal. Judge Butner affirmed the Magistrate’s ruling on concluding that the evidence presented by the State failed to adequately prove Prince had kept or maintained marijuana within the meaning of the statute. (O.R. 113.) The State now appeals to this Court.

That appeal was automatically assigned to this Court’s Accelerated Docket under Section XI of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016). Oral argument was held on April 14, 2016, and the Court duly considered Appellant’s propositions of error raised on appeal:

**Proposition 1**
The preliminary hearing magistrate erred in the demurrer because the habitualness-requirement for a conviction-which the magistrate read into the elements-is a fact question for the jury and guidance for deliberation.

**Proposition 2**
Even if the habitualness-requirement is viewed as an element of the offense, the State adduced sufficient evidence at preliminary hearing to carry the question to a jury.

After hearing oral argument and thoroughly considering Appellant’s propositions of error and the entire record before us on appeal, the Court affirms.

The language of Section 2-404(A)(6), under which Prince was charged, has been construed by this Court as requiring more than a single, isolated activity. Howard v. State, 1991 OK CR 76, I 9, 815 P.2d 679, 683. Instead it requires evidence that the location in question is somehow being used for the purpose of facilitating drug usage or sales and that such use is at least a substantial purpose of the location maintained. Id.

In a subsequent decision, the Court elaborated further on the offense described in this statute:
[T]he activity giving rise to the charge must be more than a single, isolated activity. Rather, the term implies an element of some degree of habitualness. [T]he mere possession of limited quantities of a controlled substance by the person keeping or maintaining the residence, structure, or vehicle for that person’s personal use within that residence or structure is insufficient to support a conviction under this section. Meeks v. State, 1994 OK CR 20, I 7, 872 P.2d 936, 939 (emphasis added).

We therefore reject Appellant’s contention in Proposition 1 that the habitualness issue was not a matter required to be shown to establish probable cause for an offense under Section 2-404(A)(6).

In state appeals brought under the procedures established at 22 O.S. 2011, §§ 1089.1 – 1089.7, and Section VI of this Court’s Rules, this Court reviews the factual findings of the magistrate and reviewing judge for an abuse of discretion² and reviews their legal interpretation of statutes de novo. This requires that we consider the evidence in the light most favorable to the district court’s ruling [and] accept those of the district court’s factual determinations supported by evidence. State v. Zungali, et al., 2015 OK CR 8, I 4, 348 P.3d 704, 705. In other words, this Court defers to the trial court’s findings of fact unless they are not supported by competent evidence and are therefore clearly erroneous. State V. Alba, 2015 OK CR 2, T 4, 341 P.3d 91, 92.

In Appellant’s matter, there was certainly evidence that Prince possessed marijuana in his apartment. There was additionally evidence from which reasonable persons could conclude that Prince was intending to sell or distribute the marijuana. Lacking at preliminary hearing, however, was direct proof of when Prince came into possession of the marijuana and whether his possession and intent was an isolated incident. Therefore, whether the State presented that quantum of evidence sufficient to establish probable cause on the habitualness issue must necessarily remain a judgment within the purview of the Magistrate. Providing appropriate deference to the Magistrate’s judgment on that issue, and being unable to find it is clearly erroneous based on the evidence presented, we find no abuse of discretion. We therefore find Appellant’s Proposition 2 lacks merit.

DECISION

The Magistrate’s order of August 4, 2105, sustaining Appellee’s demurrer to the preliminary hearing evidence on Count 2 of the State’s Information against Carl Edward Prince a/k/a Carl Edward Harper, in Garvin County District Court, Case No. CF-2013-19, and the reviewing judge’s decision of August 25, 2105, upholding the Magistrate’s order, are hereby AFFIRMED.

Pursuant to Rule 3.15 of this Court’s Rules, MANDATE IS ORDERED ISSUED on the filing of this decision.

**APPEARANCES AT TRIAL**
COREY L. MINER
ASSISTANT DISTRICT ATTORNEY
201 WEST GRANT, ROOM 5
PAULS VALLEY, OKLAHOMA 73075
ATTORNEY FOR STATE OF OKLAHOMA

**APPEARANCES ON APPEAL**
ARLAN BULLARD
110 NORTH WILLOW STREET, SUITE B
PAULS VALLEY, OKLAHOMA 73075
ATTORNEY FOR APPELLEE

**OPINION BY:** LEWIS, J.
Smith, P.J.: Concurs
Lumpkin, V.P.J.: Concurs
Johnson, J.: Concurs
Hudson, J.: Dissents

HUDSON, J., DISSENTING

The lower courts abused their discretion in sustaining the defendant’s demurrer to the Count 2 charge alleging Maintaining a Place for Keeping or Selling a Controlled Dangerous Substance. The lower courts’ decision, like the majority opinion in this case, is based on a misapplication of 63 O.S.2011, § 2-404(A)(6) driven by our decisions in Howard v. State, 1991 OK CR 76, 815 P.2d 679 and Meeks v. State, 1994 OK CR 20, 872 P.2d 936. I dissent to this Court’s unwillingness to revisit its unnecessarily restrictive interpretation of 63 O.S.2011, § 2-404(A)(6) which resulted in the demurrer and would reverse the lower courts’ rulings.

State v. Nelson, 2015 OK CR 10, II 11, 356 P.3d 1113, 1117 (we review de novo a magistrate’s legal conclusions drawn from the facts). We have interpreted § 2-404(A)(6) to require proof that the activity giving rise to the charge must be more than a single, isolated activity. Rather, we have held that keep[ing] or maintain[ing] for § 2-404(A)(6) purposes implies an element of some degree of habitualness. This limiting construction-which is part of the current uniform jury instruction for this charge-originated to prevent convictions under § 2-404(A)(6) due solely to the presence of drugs inside a residence, car or some other place.

In Howard v. State, 1991 OK CR 76, 815 P.2d 679, this Court held that evidence of simple possession of drugs inside a motel room was insufficient to support a second charge of Maintaining a Place where Controlled Dangerous Substances are Kept. In that case, police discovered a small package of white powder on a bedside table in a motel room along with a syringe, a piece of damp cotton and a broken cigarette. The package and the cotton both tested positive for methamphetamine. Id., 1991 OK CR 76, I 5, 815 P.2d at 682. Howard correctly held that the legislature intended to do more by the enactment of Section 2-404(A)(6) than provide additional punishment or enhanced punishment for cases of simple possession.

We noted that [c]onviction under this section is warranted when there is evidence that the location in question is somehow being used for the purpose of facilitating drug usage or sales. Id. Towards that end, this Court articulated two essential elements for conviction under § 2-404(A)(6): 1) that a substantial purpose-but not necessarily the sole purpose-of the maintaining of a place identified by the statute is for the keeping, selling or using of controlled dangerous substances; and 2) the activity giving rise to the charge must be more than a single, isolated activity.

However, we emphasized that this second element may be established through either direct or circumstantial evidence of the intent to continue illicit activities at the place in question. Id. (emphasis added). We also recognized that these requirements be applied to the facts and circumstances of each case individually rather than as hard and rigid rules.

In Meeks v. State, 1994 OK CR 20, 872 P.2d 936, this Court applied the rules adopted in Howard to find sufficient evidence to support a conviction under 2-404(A)(6) for maintaining a dwelling house to facilitate the sale of drugs to others and also for use by its inhabitants. Id., 1994 OK CR 20, 19 2-5, 872 P.2d at 937-38. In Meeks, the State presented, inter alia, evidence of two drug sales by the defendant occurring on the same day to the same person at the defendant’s residence. Additionally, a second person present at the defendant’s house made a living as a drug dealer and the defendant himself had only sporadic employment. Even though there was no evidence that the defendant kept or maintained the house primarily to sell drugs, we emphasized Howard’s holding that this need not be the primary purposes for maintaining a dwelling. Rather, it need only be a substantial purpose. We nonetheless granted relief in Meeks because the written instruction defining the § 2-404(A)(6) offense for the jury allowed the defendant to be convicted simply because he consumed drugs in his home.

This Court prescribed language in Meeks for use in all future cases to define for juries the § 2-404(A)(6) offense. Notably, this language from Meeks was adopted nearly verbatim by the uniform instruction committee in Instruction No. 6-12, OUJI-CR(2d) (Supp. 2000). The uniform instruction emphasizes that a conviction for maintaining a place where controlled dangerous substances are kept requires that the activity giving rise to the charge must be more than a single, isolated activity. Rather, the term implies an element of some degree of habitualness.

Missing from this instruction is language from Howard emphasizing that a conviction under this section may be proven through either direct or circumstantial evidence of the intent to continue illicit activities at the place in question. This language supports a charge under § 2-404(A)(6) in the present case; yet, the Court’s emphasis on the need for prosecutors to show habitualness under this section forecloses that possibility.

Here, the majority was not moved to revisit this issue and for that reason I dissent. This may therefore be a case where legislative intervention is necessary to right the course.

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Footnotes:

1. 63 O.S.Supp.2012, § 2-401(F)
2. 63 O.S.2011, § 2-404(A)(6)
3. 21 O.S. 2011, § 1214
4. Meeks v. State, 1994 OK CR 20, ¶ 7, 872 P.2d 936, 939
5. 22 O.S. 2011, § 1089.1
6. State v. Swicegood, 1990 OK CR 48, ¶ 7, 795 P.2d 527, 529
7. State v. Vincent, 2016 OK CR 7, ¶ 5, P.3d, 87 OBJ 733, 734
8. State v. Zungali, et al., 2015 OK CR 8, ¶ 4, 348 P.3d 704, 705
9. State V. Alba, 2015 OK CR 2, ¶ 4, 341 P.3d 91, 92
10. In re J.L.M., 2005 OK 15, ¶ 4, 109 P.3d 336, 338
11. Tr. 50-53
12. State v. Nelson, 2015 OK CR 10, ¶ 11, 356 P.3d 1113, 1117
13. Howard v. State, 1991 OK CR 76, ¶ 9, 815 P.2d 679, 683
14. Ott v. State, 1998 OK CR 51, ¶ 11, 967 P.2d 472, 476
15. Meeks v. State, 1994 OK CR 20, ¶¶ 3-5, 872 P.2d at 938
16. Meeks v. State, 1994 OK CR 20, ¶ 7, 872 P.2d at 939
17. Barnes v. State, 339 S.E.2d 229, 234 (Ga. 1986)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2012) - Possession of Marijuana with Intent to Distribute
• Okla. Stat. tit. 63 § 2-404 (2011) - Maintaining a Place for Keeping/Selling Controlled Substance
• Okla. Stat. tit. 21 § 1214 (2011) - Unlawful Use of a Police Radio
• Okla. Stat. tit. 22 § 1089.1 (2011) - Appeal 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:

• Meeks v. State, 1994 OK CR 20, I 7, 872 P.2d 936, 939
• Howard v. State, 1991 OK CR 76, I 9, 815 P.2d 679, 683
• Jones v. State, 10 Okl.Cr. 79, 133 P. 1134 (1913)
• Nelson v. Territory, 5 Okl. 512, 49 P. 920 (1897)
• State v. Swicegood, 1990 OK CR 48, I 7, 795 P.2d 527, 529
• State v. Vincent, 2016 OK CR 7, I 5, P.3d , 87 OBJ 733, 734
• State v. Zungali, et al., 2015 OK CR 8, I 4, 348 P.3d 704, 705
• State v. Alba, 2015 OK CR 2, T 4, 341 P.3d 91, 92
• State v. Nelson, 2015 OK CR 10, II 11, 356 P.3d 1113, 1117
• Ott v. State, 1998 OK CR 51, I 11, 967 P.2d 472, 476