Guthrie v. State, F-83-51

• Decision Date: 31 January 1984
• Docket Number: No. F-83-51,F-83-51
• Citation: 679 P.2d 278
• Parties: Floyd GUTHRIE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 278

679 P.2d 278

Floyd GUTHRIE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-83-51.

Court of Criminal Appeals of Oklahoma.

Jan. 31, 1984.

Rehearing Denied April 17, 1984.

An appeal from the District Court of Muskogee County; Hardy Summers, District Judge.

Floyd Guthrie, appellant, was convicted of the crime of Unlawful Possession of Marijuana With Intent to Distribute, in Muskogee County District Court, Case No. CRF-80-422, and sentenced to three (3) years' imprisonment, eighteen (18) months suspended, and a five thousand dollar ($5,000) fine. He appeals. AFFIRMED.

Bruce Green, Green & Green, Muskogee, for appellant.

Michael C. Turpen, Atty. Gen. of Oklahoma, Susan Brimer Agosta, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge.

Floyd Guthrie was convicted at a non-jury trial of Unlawful Possession of Marijuana With Intent to Distribute. He was sentenced to three (3) years' imprisonment, with eighteen months suspended, and a five thousand dollar ($5,000) fine. On appeal, we affirm.

Appellant first contends that the evidence of the State was insufficient, in that it failed to exclude every reasonable hypothesis except that of guilt. This contention is not well taken.

In order to convict the appellant, the State was obliged to show that he had knowledge of the presence of marijuana, and dominion and control over it. If circumstantial evidence is relied upon, it must exclude every reasonable hypothesis except that of guilt, and proof amounting to strong suspicion or mere probability is insufficient. Brown v. State, 481 P.2d 475 (Okl.Cr.1971). When implementing this standard, we consider the evidence and its inferences in a light most favorable to the State. Rudd v. State, 649 P.2d 791 (Okl.Cr.1982). Moreover, it is the State's evidence alone which must be considered; any conflict between the State's evidence and that of the defense is for the jury's consideration. Gray v. State, 561 P.2d 83 (Okl.Cr.1977).

Applying these principles to the evidence of the State, we find that it was sufficient. On September 14, 1980, lawmen executing a search warrant found a large box and six twenty-five pound sacks of cut and manicured marijuana buried under grain in a round metal building on appellant's farm. They also found marijuana on a screen suspended horizontally from the rafters of a barn on the land.

The State offered evidence to establish that a field of marijuana was under cultivation on appellant's farm as recently as July 23, 1980. An aerial photograph taken that day for the U.S. Agricultural Stabilization and Conservation Service depicted a patch of dark-green vegetation west of appellant's residence. The patch covered an estimated six-tenths of an acre, and was surrounded by a fringe of other vegetation which was brown in color.

The color of the patch contrasted with that of surrounding areas, which were suffering from severe drought, suggesting that it had been under irrigation. The patch was similar to an area on the farm of appellant's brother, which contained what was believed to be the remnants of a marijuana crop on the date of the search. Some two-inch hose, seventy-five to one hundred feet in length, extended across a field west of appellant's residence in the general direction of the patch.

The lawmen executing the search warrant did not find any growing marijuana on appellant's land. They did find a field of stubble, not believed to be marijuana, in part of an area on the photograph containing either the dark-green patch or a barren brown area just north of it.

Appellant denied knowledge of the marijuana in the grain bin and the screen in the barn. He offered evidence that his brother put the marijuana in the bin two days before the raid without appellant's knowledge, and suggested that a former farm hand may have placed the screen in the barn two or three months before the search. He also insisted that the dark- green patch on the photograph was in fact bermuda grass and fescue growing in seepy soil.

Conflicts in the evidence are for the trier of fact, Gray v. State, supra. The undisputed evidence of a large quantity of marijuana in appellant's grain bin, coupled with the other evidence presented by the prosecution, was sufficient to support the verdict.

Appellant next contends that the search violated the constitutional ban against unreasonable searches and seizures. He asserts that the search warrant affidavit was insufficient to establish probable cause for the issuance of the search warrant. However, inasmuch as appellant has failed to include the affidavit in the record on appeal, this contention is not properly before us. It is the responsibility of the defendant to present enough of the record to allow review of alleged error. Wright v. State, 559 P.2d 852 (Okl.Cr.1977).

Appellant further contends that his motion for new trial on the ground of newly discovered evidence was improperly denied. Appellant submitted the affidavit of his brother, who averred that he put the marijuana in the grain bin without appellant's knowledge.

Whether a motion for new trial on the ground of newly discovered evidence will be granted is within the discretion of the trial judge, and should not be granted except where there is a reasonable probability that, if the evidence had been introduced, different results would have been reached. Garcia v. State, 545 P.2d 1295 (Okl.Cr.1976). In this case, the trial judge, as the trier of fact at trial, was in a unique position to assess the likely impact of the brother's testimony, and we find no abuse of discretion in his denial of the motion. Moreover, the proffered testimony would have incriminated the brother, and we have held that a motion for new trial on the ground of newly discovered evidence may be denied in the discretion of the trial judge where, at a subsequent trial, the witness could invoke the privilege against self-incrimination and refuse to testify. See Williams v. State, 505 P.2d 186 (Okl.Cr.1972).

Finally, appellant contends that the search warrant was not executed by a proper officer. This is based on the assertion that the officers, Muskogee City police officers, had no authority to act outside their city limits. Appellant has failed to include the search warrant in the record on appeal. However, assuming that the warrant was directed in part to "any ... policeman ... in Muskogee County, Oklahoma," as alleged by appellant, the officers had authority to serve the warrant under 22 O.S.1981, § 1227. See Guthrie v. State, 668 P.2d 1147 (Okl.Cr.1983).

The final proposition of error is without merit, and the judgment and sentence is AFFIRMED.

BUSSEY, P.J., specially concurs.

BRETT, J., dissents.

BUSSEY, Presiding Judge, specially concurring.

I agree that the judgment and sentence should be affirmed and that the record is free from any errors which would justify modification, and wish only to observe that the affidavit of the brother was not newly discovered evidence, since, at most, it only tended to corroborate the appellant's testimony at trial.

BRETT, Judge, dissenting.

I respectfully dissent to this decision, notwithstanding the fact that the affidavit for search warrant and the search warrant are not contained in the original record. ¹ After having read the transcript of testimony, I would grant appellant a new trial.

I.

It is clear that the search warrant was issued on the basis of two facts: The Highway Patrol aircraft pilot radioed that there was a field "similar" to the field on C.O. Guthrie's land. C.O. Guthrie is the brother of appellant and marijuana stubble was found to exist on C.O.'s farm, and some marijuana was also apparently found. Secondly, appellant was observed burning something on his property. These two facts seem to be the only basis for the search warrant affidavit, according to the testimony of the officer that signed the affidavit.

The appellant's motion to suppress the evidence obtained by search warrant was twice granted by the examining magistrate. On March 17, 1981, the examining magistrate conducted appellant's preliminary examination. At the conclusion of that hearing, defense counsel demurred to the evidence, moved to quash the information. Having filed a motion to suppress the evidence because of a faulty affidavit for search warrant, appellant moved that it be sustained. The magistrate took the matter under advisement and informed both counsel that he would rule on both informations (C.O. Guthrie's CRF-80-423, and Floyd Guthrie's information CRF-80-422) at a later date. Thereafter, on March 27, 1981, the examining magistrate bound C.O. Guthrie over for trial. The magistrate then stated, "In case CRF-80-422, State of Oklahoma vs. Floyd Guthrie, preliminary hearing in that case was held March 21, 1981." At the conclusion of all testimony, the defendant moved to quash the search warrant and to suppress the evidence obtained pursuant to the warrant. The motion was taken under advisement and set for ruling.

"THE COURT: Does either party have anything they want to say in this matter?

MR. PAYTON: Nothing on behalf of the defendant.

THE COURT: What says the State?

MR. THOMAS: Nothing additional."

The magistrate then sustained the defendant's motion to suppress and the State gave notice to take a Rule 6 appeal, which allows the matter to be reviewed by one of the other district judges.

On May 15, 1981, the Rule 6 appeal was held before the Honorable O.C. Craig, Associate District Judge of Okfuskee County. The State asserted that they were not given a hearing on the motion before the examining magistrate and therefore the matter should be remanded to a magistrate other than the Honorable J.R. Settle, who ruled against the...