Wing v. State, M-77-674

• Citation: 579 P.2d 196
• Decision Date: 18 May 1978
• Docket Number: No. M-77-674,M-77-674
• Parties: Bruce Gene WING, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 196

579 P.2d 196

Bruce Gene WING, Appellant, v. The STATE of Oklahoma, Appellee.

No. M-77-674.

Court of Criminal Appeals of Oklahoma.

May 18, 1978.

An appeal from the District Court, Washington County; James H. Laughlin, Judge.

Bruce Gene Wing, appellant, was charged and convicted of the offense of Possession of Marijuana; was sentenced to a term of one (1) year in the county jail; and he appeals. Judgment and sentence is MODIFIED from one (1) year imprisonment to a term of thirty (30) days incarceration in the county jail and AFFIRMED.

Michael L. Fought, Bartlesville, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Jerry Earl Benson, Legal Intern, for appellee.

OPINION

CORNISH, Judge:

Appellant attacks his conviction by jury and his sentence of one (1) year in the County Jail for the crime of Possession of Marijuana pursuant to 63 O.S.Supp.1977, § 2-402, in the District Court of Washington County. He was originally charged with the offense of Possession of Marijuana With Intent to Distribute pursuant to 63 O.S.Supp.1977, § 2-401.

Appellant, in seeking reversal of that conviction urges five propositions of error which are as follows: (1) the improper admission of other crimes prior to his arrest, (2) an unconstitutional search and seizure, (3) failure of the court to grant a motion for a directed verdict and the court's refusal to reduce the felony charge Possession of Marijuana With Intent to Distribute to a misdemeanor prior to the case's submission to the jury, (4) prejudicial and inflammatory remarks by the prosecuting attorney, and (5) that the sentence is excessive.

Appellant contends that the admission of other crimes for consideration by the jury i. e., reckless driving, running a stop sign, and driving while intoxicated prior to his arrest on the felony charge of Possession of Marijuana With Intent to Distribute was prejudicial. The Attorney General argues that the evidence of the prior traffic offenses constituted a part of the "res gestae". Generally speaking, evidence of other crimes is inadmissible unless it comes within one of the few specifically defined exceptions. Hogan v. State, Okl.Cr., 530 P.2d 1026 (1975). One of these exceptions, as we stated in Edmondson v. State, Okl.Cr.,527 P.2d 190 (1974), is that the other crimes compose a part of the res gestae of the crime charged. In 29 Am.Jr.2d, Evidence § 321, we find the following:

". . . Evidence covering the commission of other offenses is likewise admissible where two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other, or where they form part of the res gestae. However, the mere proximity of time within which two offenses may be committed will not necessarily make one a part of the other; there must be such casual relation or connection between the two acts that they may logically be said to form part of one transaction." (Footnote omitted)

See also 29 Am.Jr.2d, Evidence § 330.

In the instant case, Officer Smith, who followed the defendant for several blocks, but did not participate in the arrest, readily admitted that he had no knowledge of the crime charged, Possession of Marijuana With Intent to Distribute, but only observed the prior traffic violations. The Attorney General argues that the traffic violations were so inextricably bound together with the arrest and the discovery of the contraband that the principal crime cannot be shown without also showing the prior violations. It is our opinion, however, that the evidence of the traffic violations did not form a part of the same transaction and were not necessary to "complete the story" surrounding the crime charged.

The exhaustive elaboration by Officer Smith of the prior violations does not fall under one of the exceptions enunciated by this Court in Hogan v. State, supra. That is to say, it was not necessary for the State to prove; (1) motive, (2) intent, (3) absence of mistake, (4) identity, (5) common scheme or plan. It would have been sufficient had the State introduced testimony that the defendant was stopped for driving while under the influence prior to the search.

The appellant next contends that the seizure by Officer Bevard of a brown paper bag lying on the pickup seat constituted an unlawful search and seizure. We need only note from the transcript that the defendant had to be restrained by the officers and was obviously in an intoxicated condition. As we stated in Roberts v. State, Okl.Cr., 483 P.2d 338 (1971):

"Under such proper circumstances, when the person is obviously intoxicated, the arresting officer may lawfully search in the driver's seat for evidence to sustain his belief that the person is intoxicated, and that he may have an open-bottle in the front seat with him." (Emphasis original)

We further observe that at the time the State introduced the marijuana into evidence, the defendant raised no objection. Although the defendant timely filed a motion to suppress the marijuana prior to the trial, he nevertheless failed to renew the objection by objecting to its introduction at the trial. In our opinion, this constituted a waiver of his right to complain to the Court. See Fields v. State, 31 Okl.Cr. 121, 236 P. 633 (1925); Box v. State, Okl.Cr., 541 P.2d 262 (1975). See also, State v. Greenwood, Okl.Cr., 565 P.2d 701 (1977) wherein we stated:

"It is elementary that a trial court may overrule a motion to suppress and proceed to trial; thereafter, the defendant may renew his objection to the introduction of the evidence and the trial court is not bound by the prior ruling, but may reconsider the objection and sustain the same."

We think a like rule applies when the examining magistrate overrules a pretrial motion to suppress. The magistrate's ruling is not binding upon the trial court and counsel must therefore renew any objection before the evidence is introduced at trial. The complaint that the search and seizure were unlawful cannot be sustained.

In his third proposition the petition complains that the trial court erred in refusing to grant defendant's motion for a directed verdict and refusing to reduce the crime charged to Possession of Marijuana prior to the jury's consideration. In Reynolds v. State, Okl.Cr., 511 P.2d 1145 (1973) we determined that where there is sufficient evidence from which the jury can find that the specific intent existed, it is not error to overrule defendant's demurrer thereto. It is our opinion that under all the facts and circumstances, there was a sufficient fact question for the issue of "intent to distribute" to be submitted to the jury under proper instructions.

Defendant next complains of prejudicial evidence and improper remarks by the prosecutor. At page 38-B 38-C of the transcript the following is reflected:

"THE COURT: Let's see, now. You knew, when you asked Officer Bevard the question, that the pills were not in any way under the Uniform Controlled Dangerous Substance Act?

"MR. PEABODY: They were in the form of a controlled dangerous substance, yes, your Honor.

"THE COURT: I don't care what their appearance was. I'm talking about the substance. Did they in any way fall within the Controlled Dangerous Substance Act?

"MR. PEABODY: In form, yes, sir.

"...