State Of Oklahoma v Patrick Lee Walker
S-2016-169
Filed: Nov. 17, 2016
Not for publication
Prevailing Party: Patrick Lee Walker
Summary
Patrick Lee Walker appealed his conviction for distributing methamphetamine within 2,000 feet of a school. His conviction and sentence were dismissed by the lower court. Judge Lumpkin dissented. In this case, Walker was initially charged with selling meth near a school. During a preliminary hearing, the evidence showed that while he met with a confidential informant in Kay County (which was near a school), the actual exchange of drugs happened in a different county. The judge decided there wasn't enough proof to show the crime happened where it was charged and dismissed the case. The State appealed this decision, arguing they should have been allowed to change the charges instead of dismissing them. The higher court agreed with the lower court's decision to dismiss the case, saying the judge did not make a mistake by doing so, but some judges disagreed and believed the State should have been allowed to amend the charges.
Decision
The ruling of the trial court sustaining Walker's Motion to Quash, Dismiss, and Otherwise Set Aside the Information and dismissing Case No. CF-2015-45 in its entirety is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision.
Issues
- Was there sufficient evidence presented at preliminary hearing to prove the crime occurred in Kay County?
- Did the district court err in denying the State's request to amend the Information?
Findings
- the court erred in ruling that the State failed to prove venue at the preliminary hearing
- the court erred in denying the State's request to amend the Information
S-2016-169
Nov. 17, 2016
State Of Oklahoma
Appellantv
Patrick Lee Walker
Appellee
v
Patrick Lee Walker
Appellee
SUMMARY OPINION
JOHNSON, JUDGE:
Appellee Patrick Lee Walker was charged in Kay County District Court, Case No. CF-2015-45, with Distributing Controlled Dangerous Substance (Methamphetamine) Within 2,000 Feet of Park/School, After Former Conviction of Two or More Felonies, in violation of 63 O.S.2011, § 2-401 (F). Preliminary Hearing was held on August 31, 2015, and Walker was bound over for trial. On February 19, 2016, Walker filed a Motion to Quash, Dismiss and Otherwise Set Aside the Information. A hearing was held on the motion to quash and dismiss on February 24, 2016. At the conclusion of this hearing the Honorable David A. Bandy sustained the motion to quash and dismissed the case. The State appeals from this decision.
Appellant raises the following propositions of error:
1. Whether the district court erred when it ruled that the State failed to prove venue at the preliminary hearing; and
2. Whether the district court erred in denying the State’s request to amend the Information.
BACKGROUND
At preliminary hearing, Kay County Sheriff’s Deputy Sean Grigsba testified that on March 25, 2014, he worked with a confidential informant to make a controlled purchase of methamphetamine from Patrick Walker. Before the informant met with Walker, Deputy Grigsba searched the informant and her car to make sure she was not in possession of any drugs or contraband. After she had been cleared, Grigsba provided the informant with money to make the controlled purchase. The informant drove to a location in Kay County which was within 2,000 feet of Ponca City Head Start and Tammy’s Playskool. At this location, Walker got into the car with the informant and they drove to a location in Osage County where Walker exited the vehicle. When Walker was gone, Deputy Grigsba searched the informant and her car and retrieved the drugs she had purchased from Walker and the left over money. At the close of Deputy Grigsba’s testimony, Walker’s attorney entered a demurrer to the evidence. Walker was bound over on the crime charged.
At the hearing on the motion to quash and dismiss the defense argued that there was insufficient evidence presented at preliminary hearing to prove that the crime occurred either in Kay County or within 2,000 feet of a school. The district court found that while the crime of distribution started in Kay County when Walker got into the car with the confidential informant, there was no evidence where they were when the drugs were actually handed to the confidential informant. Based upon this, the district court granted Walker’s motion.
DISCUSSION
In appeals prosecuted pursuant to 22 O.S.2011, § 1053, this Court reviews the trial court’s decision to determine if the trial court abused its discretion. State v. Love, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. State v. Hooley, 2012 OK CR 3, ¶ 4, 269 P.3d 949, 950. At preliminary hearing, the State has the burden to show probable cause that an offense has been committed and probable cause to show that the defendant committed the offense. Heath v. State, 2011 OK CR 5, ¶ 7, 246 P.3d 723, 725.
In order to challenge the sufficiency of the evidence presented at preliminary hearing in a motion to quash, the defendant must establish beyond the face of the indictment or information that there is insufficient evidence to prove any one of the necessary elements of the offense for which the defendant is charged. State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192. The Oklahoma Constitution grants an accused the right to be tried in the county in which the crime charged was committed. In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. 3 Okla. Const. Article II, Section 20.
Additionally, the State need not prove venue beyond a reasonable doubt, but rather, must prove it by a preponderance of the evidence. See Omalza v. State, 1995 OK CR 80, ¶ 7, 911 P.2d 286, 294. Again, the State charged Walker with distributing a controlled dangerous substance within 2,000 feet of a school in Kay County. The State proved at preliminary hearing that Walker got into a vehicle with the confidential informant at a location in Kay County that was within 2,000 feet of a school. The two drove to a location in Osage County where Walker exited the car. Sometime between when he got into the car and when he exited the car, Walker distributed a controlled dangerous substance to the confidential informant.
While this evidence established by a preponderance of the evidence that the crime of distribution of a controlled dangerous substance occurred in either Kay or Osage County, this crime was not the crime with which Walker was charged or upon which he was bound over. Although the evidence presented at preliminary hearing supported the lesser included charge of distribution of a controlled dangerous substance, the State did not request that the Information be amended to charge this lesser crime. Defense counsel preemptively addressed the issue at the motion hearing, arguing that the district court did not have the authority at the hearing to amend the Information to the lesser charge. The prosecutor did not refute this argument but rather, simply asked the district court to clarify that his ruling adopted defense counsel’s argument that it could not strike from the Information that the distribution occurred within 2,000 feet of a school. The district court judge responded that he was adopting this argument and the State argues on appeal that this ruling was in error.
It is true that Oklahoma statute permits the State to amend an Information, in matter of substance or form, where it can be done without material injury to the defendant. 22 O.S.2011, § 304. Amending the Information in this case to the lesser included offense of possession with intent to distribute would not have caused material injury to Walker. While the district court abused its discretion in adopting defense counsel’s position which was contrary to law, this was an error without effect, as the State had not requested to amend the Information to conform to the evidence presented at preliminary hearing nor did it indicate that it would have made such a request absent the district court’s ruling.
Based upon the evidence presented at the preliminary hearing, we find that the district court did not abuse its discretion in granting Walker’s motion to quash and dismiss.
DECISION
The ruling of the trial court sustaining Walker’s Motion to Quash, Dismiss, and Otherwise Set Aside the Information and dismissing Case No. CF-2015-45 in its entirety is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision.
OPINION BY: JOHNSON, J.
SMITH, P.J.: Concur
LUMPKIN, V.P.J.: Dissent
LEWIS, J.: Concur
HUDSON, J.: Dissent
Footnotes:
- 63 O.S.2011, § 2-401 (F)
- 22 O.S.2011, § 1053
- State v. Love, 1998 OK CR 32, I 2, 960 P.2d 368, 369
- State v. Hooley, 2012 OK CR 3, "I 4, 269 P.3d 949, 950
- Heath v. State, 2011 OK CR 5, I 7, 246 P.3d 723, 725
- State v. Delso, 2013 OK CR 5,9 5, 298 P.3d 1192
- Okla. Const. Article II, Section 20
- Omalza v. State, 1995 OK CR 80, "I 7, 911 P.2d 286, 294
- State v. Vincent, 2016 OK CR 7, I 5, 371 P.3d 1127, 1129
- State v. Juarez, 2013 OK CR 6, "I 11, 299 P.3d 870, 873
- 22 O.S.2011, § 264
- State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
- 22 O.S.2011, §§ 493-513
- 22 O.S.2011, § 504.1(A)
- 22 O.S.2011, § 304
- Sadler U. State, 1993 OK CR 2, IT 41, 846 P.2d 377, 386
Oklahoma Statutes citations:
- Okla. Stat. tit. 63 § 2-401 - Distributing Controlled Dangerous Substance
- Okla. Stat. tit. 22 § 1053 - Review of preliminary hearing decisions
- Okla. Const. Article II, § 20 - Right to be tried in the county where crime committed
- Okla. Stat. tit. 22 § 304 - Amendment of information
- Okla. Stat. tit. 22 § 264 - Authority to bind over for public offense
- Okla. Stat. tit. 22 § 493 - Motion to set aside indictment or information
- Okla. Stat. tit. 22 § 504 - Demurrer to the indictment or information
- Okla. Stat. tit. 22 § 504.1 - Motion to quash for insufficient evidence
- Okla. Stat. tit. 22 § 501.1 - Order on motion to quash
- Okla. Stat. tit. 22 § 508 - Judgment sustaining demurrer
- Okla. Stat. tit. 22 § 500 - Direction for new information or resubmittal
- Okla. Stat. tit. 22 § 264 - Binding over for public offense
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 2, 960 P.2d 368, 369.
- State v. Hooley, 2012 OK CR 3, "I 4, 269 P.3d 949, 950.
- Heath v. State, 2011 OK CR 5, I 7, 246 P.3d 723, 725.
- State v. Delso, 2013 OK CR 5,9 5, 298 P.3d 1192.
- Omalza v. State, 1995 OK CR 80, "I 7, 911 P.2d 286, 294.
- State v. Vincent, 2016 OK CR 7, I 5, 371 P.3d 1127, 1129.
- State v. Juarez, 2013 OK CR 6, "I 11, 299 P.3d 870, 873.
- State v. Hammond, 1989 OK CR 25, 775 P.2d 826, 827.
- Tilley v. State ex rel. Scaggs, 1993 OK CR 52, I 5, 869 P.2d 847, 849.
- Sadler v. State, 1993 OK CR 2, IT 41, 846 P.2d 377, 386.
- Riley v. State, 1997 OK CR 51, II 20, 947 P.2d 530, 534-35.