Gray v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BUSSEY
• Citation: Gray v. State, 585 P.2d 357 (Okla. Crim. App. 1978)
• Decision Date: 06 October 1978
• Docket Number: No. F-78-16,F-78-16
• Parties: Robert "Bobby" Alan GRAY, a/k/a Robert "Bobby" Alan Tarr, Appellant, v. The STATE of Oklahoma, Appellee.

Page 357

585 P.2d 357

Robert "Bobby" Alan GRAY, a/k/a Robert "Bobby" Alan Tarr, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-16.

Court of Criminal Appeals of Oklahoma.

Oct. 6, 1978.

An appeal from the District Court, Pontotoc County; Molly W. Shi, judge.

Robert "Bobby" Alan Gray, also known as Robert "Bobby" Alan Tarr, appellant, was convicted of the offense of Unlawful Possession of Controlled Drug With Intent to Distribute; was sentenced to two (2) years' imprisonment, and appeals. AFFIRMED.

Don L. Wyatt, Saunders & Wyatt, Ada, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., H. Lee Schmidt, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Robert "Bobby" Alan Gray, also known as Robert "Bobby" Alan Tarr, hereinafter referred to as defendant, was convicted in the District Court, Pontotoc County, Case No. CRF-76-116, of Unlawful Possession of Controlled Drugs With Intent to Distribute, in violation of 63 O.S.1971, § 2-401, P B 2. Punishment was fixed at two (2) years in the State penitentiary. From this judgment and sentence defendant has perfected a timely appeal to this Court.

Defendant's first assignment of error asserts that State's witness Howard Lee Baker, Jr., was an accomplice whose testimony was uncorroborated. At defendant's trial, Baker described the following drug exchange. After preliminary negotiations, Baker went to defendant's house where he agreed to trade a quantity of marihuana for some "downers." The defendant then produced a pillowcase full of drugs, fished out two plastic bags of pills (approximately 250 tablets of Diazepam, a tranquilizer), and the transaction was completed. Baker's further testimony indicated that he himself intended to sell the drugs. Defendant now seizes upon that indication to argue that Baker, like the defendant, was guilty of possession with intent to distribute, thus meeting the definition of an accomplice, that is, one who could have been charged with the offense for which the accused was tried. Farrar v. State, Okl.Cr., 505 P.2d 1355 (1973). While defendant correctly states the test for determining whether a witness is an accomplice, we find he misapplies it. In the present case, it is mere coincidence that identical charges could have been filed separately against the two men. A witness is not an accomplice to a defendant simply because his distinct acts happen to constitute a like offense. Rather, it is necessary that a charge against that witness could have arisen from the same occurrence as the crime for which the defendant was tried. Because Baker's independent misconduct does not amount to the kind of participation inherent in the term "accomplice," we cannot accept defendant's proposition.

At any rate, it is clear that Baker's testimony was thoroughly corroborated. A valid search warrant had been issued upon information supplied by Baker after he was stopped for a traffic violation, then arrested when the officer discovered the...