McCoy v. State, F-84-479
| Decision Date | 01 May 1985 |
| Docket Number | No. F-84-479,F-84-479 |
| Parties | Alvin Aaron McCOY, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Alvin Aaron McCoy was convicted of Unlawful Possession of Marijuana, Second Offense, in Tulsa County District Court in a non-jury trial. He received a sentence of two years' imprisonment.
Appellant first asserts that the State failed to prove at trial he had previously been convicted of a drug related offense, thus preventing him from being lawfully convicted of a second offense under 63 O.S.1981, § 2-402(B)(2) (currently found at 63 O.S.Supp.1984, § 2-402(B)(2)). Under this statute, a first offense is a misdemeanor and a second offense is a felony.
Our review of the record indicates that not only did the State fail to prove a prior drug related conviction, it also failed to plead such a conviction. We held in Broome v. State, 440 P.2d 761 (Okl.Cr.1968), that under our drunken driving statutes which make a first offense a misdemeanor and a second offense a felony, historical facts upon which the prior conviction is predicated must be pled and proved to give the court jurisdiction of the felony charge. This applies equally to our drug possession statute being charged herein.
While there was a stipulation made at appellant's preliminary hearing of a number of prior convictions, that evidence was not offered to the trial judge who was not the same person as the magistrate. Proof of a single fact which distinguishes between a conviction for a misdemeanor and a felony is a substantive matter, and there must be proof of the evidentiary fact. Gessman v. State, 500 P.2d 1092 (Okl.Cr.1972).
The State asserts that appellant has waived this error by his failure to object at sentencing. This error is jurisdictional and is not so easily waived. Id. Therefore, appellant's conviction must be modified to the misdemeanor offense of Unlawful Possession of Marijuana.
Section 2510, Title 12 O.S.1981, allows the prosecution a privilege against disclosing the name of a confidential informant. It also provides exceptions to this privilege. Appellant claims that the magistrate presiding at his preliminary hearing erred in not requiring the prosecution to disclose the identity of an informant against him. This individual purchased a dangerous drug (phencyclidine) from appellant. He was searched by the police before and after the sale and the sale was monitored by them from outside appellant's home. This information was used to secure a search warrant of appellant's residence. He claims that under 12 O.S.1981, § 2510(C)(3), the court should require disclosure when, "the court or defendant is not satisfied that the information was received from an informer reasonably believed to be reliable or credible...."
Here, the credibility of the information upon which the warrant was obtained was that of the officer, the affiant, who attested to his own observations surrounding the purchase. He testified and was cross-examined at both preliminary hearing and trial. Though not necessary, the affidavit in support of the search warrant additionally alleged that the confidential informant had worked with the officer previously and had provided information that led to other prosecutions. See, Tittle v. State, 539 P.2d 422 (Okl.Cr.1975). The court's refusal to require disclosure of the person whose information started the investigation by the police was not erroneous.
Appellant contends that the evidence failed to establish he was in possession of the marijuana at the time it was seized. Officers found the marijuana in a bag within a wooden box in the nightstand next to where appellant was sleeping when the police entered his home. The officers also removed from the nightstand a letter addressed to appellant. The evidence indicated there was other correspondence addressed to appellant and his wife located in the same nightstand. His wife was asleep on the other side of the bed, and next to her was another nightstand. Also within the house was appellant's teenage daughter.
In order to prove one was in possession of a drug, we have held that dominion and control over it must be shown. Basically, this includes knowledge of its existence and some right over its disposition. Gray v. State, 561 P.2d 83 (Okl.Cr.1977).
The facts of this case are similar to those of Luker v. State, 504 P.2d 1238 (Okl.Cr.1972). This Court found in that case the circumstances were sufficient to show possession when drugs were found in a box within a credenza three feet from the personal desk of appellant, and located in his personal office. This...
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