Vandiver v. State

1973 OK CR 1, 505 P.2d 1349, 1973 Okla. Crim. App. LEXIS 718

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 8, 1973
• Docket: No. A-17107
• Status: Published

Opinions

OPINION

BUSSEY, Presiding Judge:

Appellant, Jerry Vandiver, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Pontotoc County for the offense of Unlawful Sale of Stimulants. His punishment was fixed at one (1) year in the state penitentiary and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Jenny Lynn Lee testified that during the fall of 1970 she was employed as a carhop at Jerry’s Drive-In in Ada. The defendant was also employed at the drive-in as a cook. She and the defendant discussed drugs and the defendant stated that he could get them. She informed Detective Cranford of the conversations and agreed to attempt to purchase drugs from the defendant. On the evening of November 23, 1970, she asked the defendant if he could get some “speed” or “hash” for her. The defendant stated that it would be easier to get the “speed”. They agreed on the purchase price of Five Dollars ($5.00). She went outside where her mother was waiting in the car and obtained the Five Dollars. She returned to the drive-in and gave the money to the defendant. The defendant stated that he would call her at home after he “got it”. At approximately 9:00 the defendant telephoned her and stated “ T have the “speed”, let’s go — ’ ” and “ ‘We will meet behind Lefty’s Truck Stop, and hurry, make it fast.’ ” She replied, “ ‘Okay, I’m on my way.’ ” (Tr. 14) She told her mother to call Detective Cranford and inform him where she was going. She proceeded to the location behind the truck stop. The defendant got in the front seat of her car and gave her a small foil package containing five tablets. At this time, she observed Detective Cranford near the grease rack at the truck stop. The defendant got back into his car and Cranford approached the scene in his vehicle. Cran-ford stopped the defendant’s car and told the boys to get out. While the officers were searching the defendant’s car, she walked down and talked to the defendant and David Rose. She asked them if they had anything. Rose stated, “ ‘No, we took the stuff over to my house — what was left, over to my house.’” (Tr. 21) The defendant asked her, “ ‘Well, did you eat the “speed” ?’ ”. She replied that she had not and the defendant stated, “ ‘Well, go eat it. You’re a fool for not doing it before you came down here.’ ” (Tr. 21) She ran back to her car and pretended to look for the pills as though she was going to “eat them.” After checking the defendant’s car, Cranford told them to get back in it and leave. She gave the package she received from the defendant to Detective Cranford.

She further testified that she had previously given the defendant Three Dollars ($3.00) approximately a month before to get her some LSD. On November 21, the. defendant approached her and asked her if she wanted the LSD. She replied yes and the defendant delivered her one pill. On November 22, the defendant was asking around to see if anyone wanted to go in with him to buy some marijuana. She asked the defendant if he wanted her to go in with him. The defendant stated, “ ‘Well, if you want to.’ ” (Tr. 9) She gave the defendant Seven Dollars ($7.00) and on the afternoon of November 23, he delivered a quantity of marijuana to her.

Virginia Harbin testified that she was the mother of Jenny Lynn Lee. At approximately 6:00 p. m. on November 23, she went with her daughter to Jerry’s Drive-In. Jenny went into the drive-in and stayed approximately 5 or 10 minutes. She came back to the car and took a Five Dollar bill from her purse and went back into the cafe. At approximately 9:00, Jenny answered a phone call. She called Detective Cranford and told him where Jenny was going to meet the defendant. She delivered the evidence received in the other prior transactions to Captain Cranford.

Captain Cranford testified that on the evening in question, he received a call from Mrs. Harbin at approximately 9:00 p. m. He, accompanied by Officer Barnett, went to Lefty’s Truck Stop and observed two vehicles sitting close together. He observed the defendant sitting on the passenger side of Jenny’s car. He further observed the defendant pass a shiny package to Jenny and, in return, something was passed back to the defendant. He subsequently delivered the Exhibits to John McAuliff at the Oklahoma State Bureau of Investigation.

Officer Barnett testified that he went with Captain Cranford to a location near Lefty’s Truck Stop shortly after 9:00 p. m. His testimony as to what transpired thereafter did not differ substantially from the testimony of Cranford, with the exception that he did not see the transaction in the Harbin vehicle because he was looking for a place to hide behind.

John McAuliff testified that he was a chemist employed by the State Bureau of Investigation. He conducted tests of the State’s exhibits and ascertained that the same were marijuana, amphetamines and LSD. The exhibits were admitted without objection by the defendant.

The defendant testified that in November of 1970, he was sixteen (16) years old and worked at Jerry’s Drive-In. Jenny told him that she was taking Dymerols and they had several conversations about drugs. Some time in October, she gave him Three Dollars and asked him to get her an LSD pill. He did not get her one right away because he did not know where to obtain it. She continued to urge him to obtain the pill and, on occasion, bought him beer and whiskey. He obtained the pill on November 21 and gave it to her. On the 22nd of November, some people came to the drive-in who had some marijuana. He testified that he was “interested in getting some” and asked some of the boys if they wanted to go in half with him. When they said no, Jenny said “‘Well, I’ll go in with you if you want me to.’ ” (Tr. 161) She gave him Seven Dollars ($7.00) and he purchased it. On the evening of the 23rd, she asked him to get her some “speed”. He told her to go to Billy Worchester and get it. She replied that she didn’t think he would give it to her because he didn’t know her. The defendant then said, “ ‘Well, okay, if you’ll give me the money, I’ll go by after work and get it for you.’ ” (Tr. 162) He testified that he obtained the pills from Worchester and called Jenny. He further testified that “I didn’t think she would tell, I thought I could trust her, she had been buying me beer and all, so, I didn’t see anything wrong with it, so, I went ahead and got it for her.” (Tr. 163)

The first proposition asserts that the trial court erred in overruling the defendant’s motion to dismiss. The motion was based on the fact that the defendant was of the age of sixteen years at the time the alleged offense was committed. We are of the opinion that the trial court properly overruled defendant’s motion to dismiss. In Freshour v. Turner, Okl.Cr., 496 P.2d 389, we stated in the second paragraph of the Syllabus:

“An infant who committed a criminal act between 1941 and March 16, 1972, and had not reached his fourteenth birthdate on the date of the commission of the alleged offense, must have a certification hearing in Juvenile Court to determine if he or she should be held accountable for his or her acts. If, between 1941 and March 16, 1972, they had passed their fourteenth birthdate at the time of commission of the criminal act, it is legally presumed they knew the wrongfulness of their acts, and no Juvenile Proceedings are required.”

The final proposition asserts that the trial court erred in overruling defendant’s demurrer for the reason that the evidence of the State revealed that the defendant was a victim of entrapment. The record reflects that the jury was instructed as to entrapment. In Kite v. State, Okl.Cr., 490 P.2d 1402, we cited with approval the case of Riddle v. State, Okl.Cr., 373 P.2d 832, wherein we stated:

“ ‘Whether a defendant has been entrapped is to be determined by the jury, unless it can be decided as a question of law upon undisputed facts sufficient to to [sic] establish entrapment.’ ”

Although a close question, in the instant case entrapment could not be decided as a question of law upon undisputed facts and, therefore, the question was properly presented to the jury.

The judgment and sentence is, accordingly, affirmed.

BRETT, dissenting. BLISS, J., specially concurring.