Bivens v. State

• Decision Date: 11 October 2018
• Docket Number: Case Number: F-2017-259
• Parties: Byron Jerome BIVENS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

431 P.3d 985

Byron Jerome BIVENS, Appellant,

v.STATE of Oklahoma, Appellee.

Case Number: F-2017-259

Court of Criminal Appeals of Oklahoma.

DECIDED October 11, 2018

APPEARANCES AT TRIAL SILAS R. LYMAN, 1800 W. MEMORIAL RD., STE. 106, OKLAHOMA CITY, OK 73131 COUNSEL, FOR DEFENDANT.

MICHAEL J. FIELDS, DISTRICT ATTORNEY, BARRY RETHERFORD, ASST. DISTRICT ATTORNEY, 212 N. WEIGLE, WATONGA, OK 73772, COUNSEL FOR THE STATE.

APPEARANCES ON APPEAL KATRINA CONRAD-LEGLER, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT.

MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, SHERI M. JOHNSON, ASST. ATTORNEY GENERAL, 313 N.E. 21ST ST., OKLAHOMA CITY, OK 73105, COUNSEL FOR THE STATE.

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE:

¶1 Appellant Byron Jerome Bivens was tried by jury and convicted of Trafficking in Illegal Drugs (Count I) ( 63 O.S.Supp.2014, § 2-415 ); Possession of a Controlled Dangerous Substance (Count II) ( 63 O.S.Supp.2012, § 2-402 ); Unlawful Possession of Drug Paraphernalia (Count III) ( 63 O.S.2011, § 2-405 ); and Possession of a Dangerous Drug Without a Prescription (Count IV) ( 59 O.S.2011 § 353.24(7) ), all counts After Former Conviction of Two or More Felonies, in the District Court of Blaine County, Case No. CF-2015-97. The jury recommended as punishment fifty (50) years in prison and a $500,000.00 fine in Count I, and one (1) year in prison and a $1,000.00 fine in each of Counts II, III and IV. The trial court sentenced accordingly, ordering the sentences to run concurrently. It is from this judgment and sentence that Appellant appeals.

¶2 Appellant raises the following propositions of error in support of his appeal:

I. The State's evidence in case No. CF-2015-97 was insufficient to convict Appellant of Counts I-IV.

II. Appellant's separate convictions for Possession of a Controlled Dangerous Substance in Counts I, II and IV violate his constitutional protection against Double Punishment and Double Jeopardy.

III. Appellant's Fourteenth Amendment due process rights pursuant to the United States Constitution were violated when the jury was erroneously instructed as to the range of punishment for Trafficking methamphetamine in excess of 200 grams.

IV. Prosecutorial misconduct deprived Appellant of a fair trial as guaranteed by the United States and Oklahoma Constitutions and caused the jury to render an excessive sentence.

V. The trial court committed fundamental error by failing to instruct the jury on the lesser-related offense of Possession of Controlled Drug with the Intent to Distribute, in violation of Appellant's right to due process and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

VI. The trial court committed fundamental error by not instructing the jury that Appellant would be ineligible for good time credits.

VII. The trial court failed to properly instruct the jury that Appellant would receive additional punishment of methamphetamine registration if found guilty.

VIII. Alternatively, reversal is required because any failure to adequately and completely preserve issues for review in this Court was the result of the ineffective assistance of counsel.

IX. Appellant's sentence is excessive.

X. The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we find that under the law and the evidence no relief is warranted.

¶4 On July 19, 2015, Appellant was a passenger in a pickup detained for a traffic stop by an officer from the Watonga Police Department. The driver was unable to produce a driver's license or vehicle registration. A warrant check returned an outstanding warrant for the back seat passenger. As the traffic stop progressed, all four occupants of the pickup acted nervous but Appellant particularly so. Appellant was constantly on his phone, had an odor of alcohol about him, and was the only occupant to repeatedly get in and out of the truck. Appellant appeared particularly upset when the officer advised the occupants that the driver was to be arrested and the pickup impounded. Appellant refused to leave the scene and remained by the driver's side door. During the ensuing inventory of the pickup, Appellant asked for a bag of tools lying on the front passenger floorboard. When asked if the bag of tools belonged to him, Appellant replied no. His request was refused. Appellant attempted to persuade the officers to allow him to move the pickup. This request was also refused. Appellant eventually complied with the officers' directives to leave the scene.

¶5 The inventory of the pickup yielded the tool bag, an orange power tool and a bottle of vodka in the front passenger floorboard. Underneath the front passenger seat was found a black nylon bag containing $280.00 cash, a silver spoon containing a crystal like residue, a digital scale with residue, and three clear baggies of a white, crystal-like substance which tested as methamphetamine in quantities of 205.01 grams, 13.13 grams and 2.91 grams. Also found inside the nylon bag were 3 baggies of a green leafy substance that tested as marijuana in the quantities of 4.25 grams, 0.43 grams, and 0.91 grams. A small jewelry bag was also found containing 10 tablets which tested to be Xanax. Three days later an arrest warrant was obtained for Appellant and he was taken into custody.

¶6 In Proposition I, Appellant challenges the sufficiency of the evidence to support his convictions arguing the State failed to prove he knowingly participated in the crimes. Appellant argues he was only one of four people in the truck and his mere proximity to the bag of drugs is insufficient to connect him to possession of the drugs.

¶7 We review Appellant's challenge to the sufficiency of the evidence supporting his convictions in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Davis v. State, 2011 OK CR 29, ¶ 74, 268 P.3d 86, 111. This Court will accept all reasonable inferences and credibility choices that tend to support the verdict. Id. It is the exclusive province of the trier of fact to weigh the evidence and determine the facts. Rutan v. State , 2009 OK CR 3, ¶ 49, 202 P.3d 839, 849.

¶8 Each of the offenses Appellant was convicted of committing contains an element of knowing and intentional possession. See 63 O.S.Supp.2014, § 2-415 (Trafficking); 63 O.S.Supp.2012, § 2-402 (Possession of a Controlled Dangerous Substance); 63 O.S.2011, § 2-405 (Unlawful Possession of Paraphernalia) and 59 O.S.2011 § 353.24(7) (Possession of a Dangerous Drug Without a Prescription). When an accused is not apprehended while in physical custody of contraband, proof of the knowledge and control necessary to justify an inference of possession (i.e., constructive possession) can be and usually is circumstantial. Johnson v. State, 1988 OK CR 246, ¶ 6, 764 P.2d 530, 532.

¶9 Proof of knowing possession of drugs is often solely circumstantial, and thus requires that guilt be determined through a series of inferences. Id. Even in the absence of proof of possession and exclusive control, constructive possession may still be proven if "there are additional independent factors showing [the accused's] knowledge and control." Id. Such independent factors may consist of "incriminating conduct by the accused, ... or any other circumstance from which possession may be fairly inferred." Id . Possession may be individual or joint, actual or constructive. White v. State, 1995 OK CR 15, ¶ 6, 900 P.2d 982, 986. "[J]oint possession can be proven by circumstantial evidence of dominion and control over the thing possessed." Id. Possession need not be exclusive "as long as there is proof that the defendant knowingly and willfully shared the right to control the dangerous substance." Id.

¶10 Contrary to Appellant's claim, the evidence in this case shows much more than his mere proximity to the drugs. The evidence, taken as a whole, supports the inference that Appellant knew the bag of drugs was under the front passenger seat where he had been sitting, next to the very visible tool bag. His attempts to either get inside the truck to retrieve the bag or move the truck and retrieve the bag or merely create a diversion set him apart from the conduct of the other occupants of the truck. Reviewing the evidence in the light most favorable to the State, we find any rational trier of fact could have found beyond a reasonable doubt that Appellant knowingly and intentionally committed the charged crimes.

¶11 In Proposition II, we review for plain error Appellant's claims of double punishment and double jeopardy. Head v. State, 2006 OK CR 44, ¶ 9, 146 P.3d 1141, 1144. Under the plain error test set forth in Simpson v. State , 1994 OK CR 40, 876 P.2d 690, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. See also Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121 ; Levering v. State , 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395 ; Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.

¶12 Appellant's convictions in Counts I, II and IV are not barred by the statutory prohibition against double punishment, 21 O.S.2011, § 11(A), or the constitutional prohibition against double jeopardy. See Sanders v. State , 2015 OK CR 11, ¶¶ 5-8, 358 P.3d 280, 283-284. Appellant was charged and convicted of violating three separate statutes - 63 O.S.Supp.2014, § 2-415 ; 63 O.S.Supp.2012, § 2-402, and 59 O.S.2011 § 353.24(7). Each offense contains different...