White v. State, F-93-1156

• Decision Date: 23 February 1995
• Docket Number: No. F-93-1156,F-93-1156
• Citation: 1995 OK CR 15,900 P.2d 982
• Parties: John Kennedy WHITE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 982

900 P.2d 982

John Kennedy WHITE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-93-1156.

Court of Criminal Appeals of Oklahoma.

Feb. 23, 1995.

Order Denying Rehearing March 29, 1995.

Rehearing Denied April 13, 1995.

An Appeal From The District Court of Atoka County; the Honorable Doug Gabbard II, Judge.

John Kennedy White was convicted of Trafficking in Illegal Drugs and Unlawful Possession of a Controlled Dangerous Substance without a Tax Stamp, both after former conviction of a felony, in Case No. CRF-92-126 in the District Court of Atoka County, sentenced to life imprisonment without parole and 20 years, respectively, and appeals. The Judgment and Sentence for Trafficking in Illegal Drugs and Unlawful Possession of a Controlled Dangerous Substance without a Tax Stamp and Unlawful of a CDS Without a Tax Stamp is AFFIRMED.

Michael Hoover, Mitchell Lee, Oklahoma City, for defendant.

Greg Jenkins, Asst. Dist. Atty., Atoka, for the State.

Michael Wilson, Asst. Appellate Indigent Defender, Norman, for appellant.

Susan B. Loving, Atty. Gen. of Oklahoma, Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CHAPEL, Vice Presiding Judge.

John Kennedy White was tried by jury in the District Court of Atoka County, Case No. CRF-92-126. He was convicted of Trafficking in Illegal Drugs in violation of 63 O.S.1991, § 2-415, and Unlawful Possession of a Controlled Dangerous Substance without a Tax Stamp in violation of 68 O.S.1991, § 450.4, both after former conviction of a felony. In accordance with the jury's recommendation, the Honorable Doug Gabbard, II, sentenced Mr. White to Life without Parole on the trafficking count and twenty years imprisonment on the possession charge. White has perfected his appeal of these convictions. We affirm.

On November 14, 1992, Officer Layton, a Stringtown police officer, stopped a vehicle for traveling 73 mph in a 55 mph zone. White was the passenger in the vehicle. During the stop, Layton instructed White to open the glove compartment to retrieve the insurance verification; Layton saw a plastic bag that looked like it contained "cake soap." When Layton returned to his unit to issue the driver a traffic citation, he noticed that the driver's signature on the ticket did not match the signature on the license. When Layton questioned the driver about the license data (age, height, etc.) the driver answered incorrectly, prompting Layton to call for backup.

Officer Payton arrived and the two officers obtained a search waiver from the driver. Layton maintained he searched the car only because the driver lied to him, even though this happened after he saw the plastic bag. Another officer, Hurd, arrived as well to help with the search. Layton searched the driver's side and told Hurd, who was searching the passenger side, to look for the plastic bag he had seen earlier in the glove box. Layton discovered the plastic bag in the console behind the ashtray. ¹ The parties stipulated at trial that the bag contained approximately 43 grams of cocaine. When White and Omar Hawkins, the driver, were arrested, both men gave the officers false names.

Hawkins was the sole witness for the defense. ² Hawkins testified that before he was pulled over, the glove box had not ever been opened in White's presence. Hawkins testified that the drugs found in the car were his, not White's, and that White had neither the right nor the power to dispose of the drugs in any way; however, he conceded he never told anyone this until his case was resolved.

In his first proposition of error, White argues there was insufficient evidence of trafficking to support his conviction. He claims Layton's testimony was insufficient because it was not corroborated, and in the alternative, that even with Layton's testimony, there was insufficient evidence of dominion and control over the drugs to sustain his conviction. White's first argument that officer testimony in narcotics cases should require corroboration, much like rape cases and cases in which accomplice testimony is used, is groundless. ³ White cites no caselaw requiring such corroboration, and we are aware of none. This Court declines to extend the rules regarding corroboration of testimony to officer testimony in narcotics cases. The truth or falsity of Layton's testimony was a credibility question for the jury, and the jury believed him. This Court will not reexamine the credibility of witness testimony, as it is within the jury's exclusive province. ⁴

White next argues that there was insufficient evidence of dominion and control over the drugs to sustain his conviction for trafficking. This argument is also without merit. The elements of trafficking are knowing and intentional possession of 28 grams or more of a mixture or substance containing a detectable amount of the controlled dangerous substance cocaine or coca leaves. ⁵ The elements of possession are (1) knowing and intentional; (2) possession; and (3) a controlled dangerous substance. ⁶ Because both Hawkins and White occupied the car in which the drugs were found, possession cannot be presumed by White's presence in the location where the drugs were found. However, joint possession can be proven by circumstantial evidence of dominion and control over the thing possessed. ⁷ Moreover, possession may be either actual or constructive, and need not be exclusive "as long as there is proof that the defendant knowingly and willfully shared the right to control the dangerous substance." ⁸

White argues there was insufficient evidence of dominion and control because the evidence, when taken in the light most favorable to the state, showed circumstantially that he merely relocated Hawkins' drugs from the glove compartment to underneath the car's ash tray. He argues an attempt to relocate drugs is not sufficient proof of dominion and control because it is circumstantial evidence which does not exclude every reasonable hypothesis other than guilt. ⁹ We disagree.

This Court recently found that a passenger in a car which was under surveillance for drug activity was in possession of the drugs in question where the juvenile driver tossed a small plastic pill bottle into the car and the passenger picked it up and tried to hide it in the glove box. ¹⁰ We find Carolina to be dispositive of this case. ¹¹ White's action in moving the drugs from the glove box to behind the ash tray demonstrated his knowledge that contents of the bag were contraband, as he would not have attempted to hide them otherwise; it also established that he exercised dominion and control over the drugs. Accordingly, the state presented sufficient evidence of dominion and control to sustain White's conviction for trafficking. This proposition must fail.

In his second proposition of error, White argues the Oklahoma Drug Tax Stamp Act, which requires a tax stamp to be immediately affixed to illegal drugs, is unconstitutional because (1) it compels defendants to incriminate themselves in order to defend against its charge, (2) it is impossible to comply with, and (3) it infringes on the state and federal protections against self-incrimination. ¹² White's challenge of the Oklahoma Drug Tax Stamp Act presents a question of first impression in our State. ¹³ In analyzing this issue, we are mindful of the principle that statutes are presumptively constitutional, and the burden of proving unconstitutionality rests with the party challenging the statute. ¹⁴ It should also be noted that "the unlawfulness of an activity does not prevent its taxation." ¹⁵

White's first claim that the statute is unconstitutional because defendants must incriminate themselves in order to defend against it is baseless. He claims an accused cannot deny being in possession of drugs and at the same time, in order to defend against a tax stamp violation charge, admit that he affixed a tax stamp to them. White concludes that this creates a "Catch-22" situation wherein any defense to this charge would cause a defendant to at least admit knowledge of the drugs' presence. He asserts that this would constitute a Fifth Amendment violation, as the privilege against self-incrimination does not distinguish between degrees of incrimination and thus to compel a defendant to admit knowledge of narcotics is unconstitutional, even if knowledge alone would not support a conviction. ¹⁶

White's theory that defending against a tax stamp charge requires admission of at least knowledge of the drug's presence is faulty. The error in his reasoning lies in his belief that the only way to defend against this charge is to admit he affixed the stamp. The statute does not require the dealer to purchase the tax stamp. Anyone may purchase the stamp. Therefore, if a stamp is on the drugs, that does not mean the defendant purchased it. One may deny knowledge and ownership of the drugs, claiming they belong to someone else, and consistently deny knowledge of the tax stamp that "someone else" affixed to them. Because one may prove a stamp was present on the drugs without incriminating one's self, this argument is meritless. ¹⁷

Additionally, White challenges the Drug Tax Stamp Act by contending compliance with its mandates is impossible. He claims that dealers will never be able to immediately affix the stamp upon acquisition as the statute requires because (a) the drugs will never be purchased at the Oklahoma Tax Commission and (b) the OTC is the only place where the tax stamp can be purchased. An Alabama appellant raised a similar argument in Hyatt v. State Dept. of Revenue. ¹⁸ Hyatt claimed it was impossible for him to affix the stamps as required by the Act because he received the drugs at 7:00 p.m. on a Friday evening and was arrested shortly thereafter. ¹⁹ The Hyatt Court found nothing in the record to support his contention and accordingly "found the argument to be unsupported by the evidence and unpersuasive. We consider it also spurious." ²⁰ Similarly, White presented...