Tharps v. State, F--76--350

• Decision Date: 14 October 1976
• Docket Number: No. F--76--350,F--76--350
• Citation: 555 P.2d 1054
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Carl THARPS, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

Page 1054

555 P.2d 1054

Carl THARPS, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--350.

Court of Criminal Appeals of Oklahoma.

Oct. 14, 1976.

An appeal from the District Court, Tulsa County; Richard V. armstrong, judge.

Carl Tharps, Jr., appellant, was convicted of the offense of Unlawful Possession of a Controlled Drug; was sentenced to ten (10) years' imprisonment, and appeals. Judgment and sentence AFFIRMED.

Richard A. Hoffman, Appellate Public Defender, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Kenneth Lisle, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Carl Tharps, Jr., hereinafter referred to as defendant, was charged in the District Court, Tulsa County, Case No. CRF--72--1317, with the offense of Unlawful Possession of a Controlled Drug, Oxycodone, also known as Percodan--Demi, said drug being classified as a controlled dangerous substance in Schedule II (A--2) of the Uniform Controlled Dangerous Substance Act, 63 O.S.Supp.1972, § 2--206 (A--2); in violation of said Act, 63 O.S.Supp.1972, § 2--402 (B--1). The defendant was found guilty in a trial by jury and sentenced to serve a term of ten (10) years in the custody of the State of Oklahoma Department of Corrections at McAlester, Oklahoma. From said judgment and sentence, the defendant has perfected his timely appeal to this Court.

The State's first witness at trial was Jerry McMillen, a Tulsa Police Officer, who testified that he had been a member of the Narcotics Division for two years. Officer McMillen stated that he had received training in narcotics investigation and identification, and had examined various narcotics, including Percodan--Demi, as well as having observed persons under the influence of heroin.

Officer McMillen testified that on April 21, 1972, he and two other officers served a narcotics search warrant to the defendant at approximately 8:00 a.m. at 515 East 32nd Street in the Vernon Manor Apartments, Tulsa, Oklahoma. The officers knocked and identified themselves, whereupon the defendant, wearing only undershorts, opened the door. While one of the officers, Detective Beck, stayed with the defendant in the living room, Officer McMillen and the other officer, Detective Cartner, searched the apartment. On top of a chest of drawers in one of the bedrooms, the officers found a car title and a billfold, both bearing the name of the defendant. In the third drawer of the chest they found syringes and needles, a blackened spoon, and a plastic baggie containing nine pink tablets, underneath clothing identified as belonging to both men and women. Several small tinfoil bindles containing a white powdery substance were found in the bedroom closet.

Officer McMillen further testified that during the search, at about 8:15 a.m., a knock was heard at the front door and a woman's voice was heard to say, 'let me in, let me in.' Officer McMillen went into the living room and the woman was let into the apartment. She was identified as Marjorie Booker, and was described as being 'blurry-eyed and nose was running and hair and clothing very disarrayed.' McMillen stated that as soon as she spotted the defendant sitting on a couch in the living room she exclaimed, 'Hurry, I need a fix.' Ms. Booker's person was then searched and her pursed seized, and upon finding marihuana cigarettes she was placed under arrest. No keys to the apartment were discovered in the custodial search.

Officer McMillen testified he had observed scars indicating needle marks on the arms of both Marjorie Booker and the defendant, but was unable to determine how old the scars were. The witness then discussed the use of the paraphernalia found in the apartment, which was rented in Marjorie Booker's name, but he did not link the drug in question with the paraphernalia. The officer further testified that he had observed the defendant on approximately 15 or 20 occasions at all hours of the day and night, letting himself into said apartment during the two months the apartment was under surveillance. Officer McMillen stated that the defendant's shirt and trousers were found in the same bedroom in which his billfold was found, but the clothes in the chest of drawers were not identified. Some women's cosmetics were also found in the bedroom. It was then stipulated by agreement of counsel that the pink pills were found to be Oxycodone, also known as Percodan--Demi, and were received by the court in evidence, marked for the purpose of identification as State's Exhibit No. 1. The State then rested.

The first witness for the defense was Cheryl LaDean Tharps, who testified that she lived at 1528 North Elwood in Tulsa, with her husband of 16 years, the defendant. She testified they had lived at that location for four years, and that he maintained his residence there and kept all his clothes there. She stated that she and her husband had known Marjorie Booker for about ten years, and that Marjorie Booker lived at the Vernon Manor Apartments with her four children. The witness testified that she and her husband had had a 'misunderstanding' and that he had left their house and had gone to Marjorie Booker's apartment. Mrs. Tharps further testified that her husband worked off and on at the Big Ten Recreation Parlor, and that he was sometimes out all night, claiming to be at the recreation parlor. The witness stated that she had never filed for a divorce, nor a legal separation, nor had she ever threatened the defendant with divorce. She also stated that she did not draw welfare checks or ever been on aid to dependent children.

The defendant then took the stand to testify in his own behalf. The defendant stated that he had lived with his wife and children, and that he worked at the Big Ten Recreation Parlor. He admitted knowing Marjorie Booker, that he went to her apartment occasionally, and that he had spent the night in her apartment on the 20th and 21st of April. The defendant testified that the only articles of clothing which he had on April 21st, were those that he had worn to the Booker residence. He stated that he did not know of the existence of the pills or the paraphernalia.

On cross-examination the defendant testified that he had never used, nor been addicted to, heroin, nor had he ever used any controlled drug. He further testified that the needle scars on his arms were the result of needles used to administer drugs to him when he was in the hospital, after being wounded in Korea. The defendant disputed Officer McMillen's testimony, regarding Marjorie Booker's knocking at the door, and claimed that Officer McMillen was not present when she entered the apartment. The defendant also denied that Marjorie Booker had demanded a 'fix.' The defense then rested.

The State next called Carolyn Johnson as a rebuttal witness. Mrs. Johnson stated that her husband was a heroin addict and that she occasionally used heroin. She testified that she had never seen the defendant with a syringe and that she had never seen him take any controlled drugs orally. When asked if she had ever purchased heroin from the defendant or seen the defendant use heroin, she refused to answer.

The witness testified that she had been to Marjorie Booker's apartment and had seen many people there, including the defendant. She stated that her husband would go to said apartment sometimes when he needed a 'fix,' and that the defendant was occasionally there. The witness testified that she had gone to see the defendant when she was 'all strung out.' Mrs. Johnson stated that she had never observed any pink tablets. The State rested.

The defendant asserts as his first assignment of error that the trial court erred in failing to sustain his demurrer and motion for dismissal raised at the close of the State's case in chief. In support of this proposition the defendant relies mainly on Brown v. State, Okl.Cr., 481 P.2d 475 (1971). In Brown v. State, supra, at page 477, the Court held that where a person is present on the premises where marihuana is found but does not have exclusive access or use of the premises, it may not be inferred that he had knowledge or control of the drug without additional independent factors which establish his knowledge and control.

The defendant also cites Roth v. State, Okl.Cr., 532 P.2d 1397 (1975), in which this Court discussed the State's burden of proof. In the case at bar the State relies solely upon circumstantial evidence to prove the crime, and the defendant correctly points out that a conviction upon circumstantial evidence cannot be sustained unless the proof presented excludes every reasonable hypothesis except that of guilt. 532 P.2d 1398.

We have stated on numerous occasions that it is not the function of this Court to weigh the evidence. In Jones v. State, Okl.Cr., 468 P.2s 805, 807 (1970), this Court stated as follows:

'Where there is competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty as charged, the Court of Criminal Appeals will not interfere with the verdict, . . . since it is the exclusive province of the jury to weigh the evidence and determine the facts. . . .' (Citation omitted)

See, Neal v. State, Okl.Cr., 529 P.2d 526 (1974).

Further, this Court has held that where there is any competent evidence which constitutes a chain of circumstances which reasonably support the allegations in the indictment the trial court should not sustain a demurrer to the evidence. Martin v. State, 92 Okl.Cr. 182, 222 P.2d 534, 544 (1950); also see, Terhune v. State, Okl.Cr., 530 P.2d 557 (1975).

The defendant contends that he did not have exclusive use or access to the apartment where the illegal controlled drug was found. He further urges that there was no actual evidence presented by the State to show that he had dominion and control of the drug.

The Court finds no merit in this proposition. It has been frequently held in Oklahoma that...