Backus v. State, F-80-693

• Decision Date: 21 October 1981
• Docket Number: No. F-80-693,F-80-693
• Citation: 635 P.2d 1021
• Parties: William Dean BACKUS and Michael Ray Mead, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1021

635 P.2d 1021

William Dean BACKUS and Michael Ray Mead, Appellants, v. The STATE of Oklahoma, Appellee.

No. F-80-693.

Court of Criminal Appeals of Oklahoma.

Oct. 21, 1981.

An appeal from the District Court of Okfuskee County, Jess I. Miracle, Judge.

William Dean Backus and Michael Ray Mead, appellants, were convicted of Unlawful Possession of Marijuana with Intent to Distribute in Okfuskee County District Court, Case No. CRF-79-33. They were each given sentences of three (3) years and nine (9) months imprisonment and appeal. The sentences are modified to two (2) years and as so MODIFIED are AFFIRMED.

Andrew L. Hamilton, Bay, Hamilton, Lees, Spears & Verity, Oklahoma City, for appellants.

Jan Eric Cartwright, Atty. Gen., Susan Mary McNaughton, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellants, Michael Ray Mead and William Dean Backus, the defendants below, were convicted by a jury in the District Court of Okfuskee County, Case No. CRF-79-33, for the offense of Unlawful Possession of Marijuana with Intent to Distribute, in violation of Laws 1973, ch. 22, § 1, now 63 O.S.Supp.1980, § 2-401. Pursuant to the jury verdict, they were both sentenced to three (3) years and nine (9) months imprisonment, and from said judgment and sentence, the defendants have perfected this consolidated appeal.

Defendant Mike Mead, singularly, asserts that the evidence was insufficient to support his conviction in that it did not establish that he was in possession of the marijuana. Further, he contends that his arrest was unlawful since the arresting officer did not have probable cause to believe that Mead had committed a crime.

Johnny Croney, an informant, testified that he had talked with Mead and arranged for the purchase of nine (9) pounds of marijuana; and that Mead had directed him to: "(M)eet me below the hill, keep on going to the first intersection, and that's where it would be at." Croney communicated this conversation to Agent Joe Collins, of the Oklahoma State Bureau of Investigation, and together they proceeded to the prescribed location in Okfuskee County. Other officers were alerted, who proceeded to set up surveillance of the location. Agent Collins asked the defendants if they had any marijuana, to which the defendant Backus replied in the affirmative and related that it was secreted underneath a nearby bridge. A discussion regarding the quality and price of the marijuana culminated with Collins pulling a gun, instead of money, from his pocket, and placing the defendants under arrest. Agent Collins proceeded to the bridge and found a trash bag underneath it which contained nine (9) pounds of marijuana.

The evidence, as set forth above, is clearly sufficient to support the verdict of the jury. Defendant Mead's other contention, that the arrest was made without probable cause, is also without merit. The test of whether a police officer has probable cause to make a warrantless arrest is whether, at the moment the arrest was made, the facts and circumstances within his knowledge, and of which he had reasonably trustworthy information, was sufficient to warrant a prudent man in believing that the arrestee had committed or was committing an offense. Duke v. State, 548 P.2d 230 (Okl.Cr.1976). It is our opinion that this test has been met, and accordingly, Mead's contention is without merit.

As their first joint assignment of error the defendants assert that the trial court erred in not instructing the jury as to the lesser included offense of possession of marijuana. An examination of the record reveals that there was no...