Carolina v. State

1992 OK CR 65, 839 P.2d 663, 63 O.B.A.J. 2940, 1992 Okla. Crim. App. LEXIS 78, 1992 WL 253101
CourtCourt of Criminal Appeals of Oklahoma
DecidedOctober 5, 1992
DocketF-89-680
StatusPublished
Cited by11 cases

This text of 1992 OK CR 65 (Carolina v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carolina v. State, 1992 OK CR 65, 839 P.2d 663, 63 O.B.A.J. 2940, 1992 Okla. Crim. App. LEXIS 78, 1992 WL 253101 (Okla. Ct. App. 1992).

Opinions

OPINION

BRETT, Judge:

Appellant, Leroy Carolina, was found guilty of Possession of a Controlled Dangerous Substance, After Former Conviction of a Felony, in violation of 63 O.S.Supp. 1986, § 2-401, in Case No CRF-88-5723, in the District Court of Oklahoma County. The jury assessed punishment at ten (10) years imprisonment which the trial court imposed. From this Judgment and Sentence, the appellant has perfected his appeal to this Court.

On October 8, 1988, Officer Gravel, Officer Bradford, and Officer Hughes conducted a surveillance upon a neighborhood known for drug activity. Looking through binoculars, they observed activity at a residence at which a brown car was parked in the driveway. This car was occupied by appellant, who was sitting on the passenger side of the front seat, and by a juvenile, B.H., who was on the driver’s side. Vehicles would drive up to the residence and stop in the street. The juvenile would approach the cars and talk to the occupants. He would then go back to the brown car and talk to the appellant. After that B.H. would return to the car in the street which would subsequently drive off and B. H. would return to the brown car until another car approached. The cars stopped in the street approximately five minutes each time.

After watching the activity for a while, the officers proceeded to drive to the scene. Officers Gravel and Bradford did not see the juvenile right away when they pulled onto the street. However, Officer Hughes spotted him walking toward the brown car in the driveway. Hughes drove his car over the curb and onto the lawn. He observed the juvenile toss a small plastic pill bottle into the car. The officer testified that the appellant picked up the bottle and started trying to open the glove box. At this point, Officer Hughes, who was on the passenger side of the car, drew his service revolver and ordered the appellant to stop. Upon the officer’s repeated requests, the appellant exited the car, turned his back to Hughes and continued reaching inside the car. At this point, the other officers arrived. Officer Gravel testified that he saw the appellant holding the plastic pill bottle. As appellant stood up, he dropped the bottle on the ground and it rolled under the car. When the bottle was retrieved, it was found to contain crack cocaine. The appellant and the juvenile were placed under arrest. At the time of arrest, appellant was carrying four (4) dollars and the juvenile possessed thirty-five (35) dollars.

In his first assignment of error appellant alleges that the evidence was insufficient to support his conviction because the State was unable to prove beyond a reasonable doubt that appellant knowingly and intentionally possessed the cocaine which was found by the police. In order to sustain appellant’s conviction, it must be found that any rational trier of fact, when viewing the evidence in a light most favorable to the State, could have found the elements of the crime beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985). We find that this test was met in the present case.

While knowing and intentional possession must be proven in order to sustain a conviction for the crime of Posses[665]*665sion of a Controlled Dangerous Substance, such elements can be proven by circumstantial evidence. Circumstantial proof of knowing and intentional possession requires that guilt be determined through a series of inferences. See Johnson v. State, 764 P.2d 530, 532 (Okl.Cr.1988). Where an accused did not have exclusive access, use or possession of the premises upon which drugs are found, constructive possession may be proven if there are additional independent factors which show his knowledge and control of the drugs. Staples v. State, 528 P.2d 1181, 1134 (Okl.Cr.1974). Such independent factors may include incriminating conduct by the accused or other circumstances from which possession may be fairly inferred. Id.

In the present case, it is true that the appellant was only seen in actual possession of the cocaine for a short period of time after the juvenile had tossed the bottle to him. However, it may reasonably be inferred from the officers’ testimony that the appellant was holding the bottle and trying to open the glove compartment, that the appellant was trying to conceal the bottle in the glove compartment of the car. We find this to be incriminating conduct from which knowledge may reasonably be inferred. Further, from the evidence that appellant tried to conceal the bottle in the glove compartment of his vehicle rather than immediately tossing it back to the juvenile or out of his car, it may be fairly inferred that he intended to possess the drugs. Thus, we find the evidence sufficient to sustain the jury’s verdict.

In his second assignment of error, appellant claims that the trial court erred in allowing the prosecutor to cross examine defense witnesses about their pending criminal charges. At trial, Don Bradford and his wife, who were staying at the residence at which the appellant’s car was parked at the time of his arrest, were called to testify on behalf of the appellant. They testified that the juvenile had been trying to sell some drugs that day but that they had never seen the appellant possess drugs. There was also testimony that they did not like drugs around the house. On cross examination, the prosecutor elicited that Mr. Bradford and his wife had subsequently been arrested for trafficking drugs and maintaining a house where drugs are kept. Defense counsel objected to this line of questioning on the basis that prior arrests are not a proper subject of impeachment. The prosecutor argued that the witnesses’ prior arrests were admissible to show bias against the State. The trial court overruled the objection.

It is well settled law in Oklahoma that it is not proper to impeach a witness by cross examination regarding arrests which have not culminated in convictions. McDonald v. State, 764 P.2d 202 (Okl.Cr.1988). However, in McDonald, this Court specifically left unanswered the question of whether evidence of a witness’ prior arrest may be admissible in cases where it is offered to show bias. Id., at 206 n. 1. This question was answered in part by Beck v. State, 824 P.2d 385 (Okl.Cr.1991), in which this Court recently found that error occurred when a defendant was not allowed to cross examine a state’s witness as to charges that had been filed against him and later dismissed. This Court prefaced this finding not on the evidence code, but rather on the common law and the constitutional right of confrontation that is afforded every criminal defendant. Id. See also, U.S. Const, amend. VI; Okla.Const., art. II, § 20.

While Beck allows a defendant to cross examine a state’s witness about prior convictions for purposes of showing bias, it does not specifically address the issue of whether the same latitude may be afforded the prosecution which seeks to show the bias of a defense witness by cross examination as to his or her prior arrests. However, this Court did note in Beck that evidence which impeaches a witness for bias is not regulated by the evidence code, but through common law principles. Id. 824 P.2d at 388. In recognizing the importance of bias evidence we found that it is never collateral. Id. We have also held that “[a] witness may be cross examined as to any matter tending to show bias or prejudice or circumstances under which one would be [666]*666tempted to swear falsely.” Dunham v.

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Hill v. State
1995 OK CR 28 (Court of Criminal Appeals of Oklahoma, 1995)
White v. State
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Scott v. State
1995 OK CR 14 (Court of Criminal Appeals of Oklahoma, 1995)
Carolina v. State
1992 OK CR 65 (Court of Criminal Appeals of Oklahoma, 1992)

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Bluebook (online)
1992 OK CR 65, 839 P.2d 663, 63 O.B.A.J. 2940, 1992 Okla. Crim. App. LEXIS 78, 1992 WL 253101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carolina-v-state-oklacrimapp-1992.