Gamble v. StateGamble v. State
- Reporters:
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- Before:
- Parks
Lead Opinion
OPINION
PARKS, Judge:Thе appellant, Larry James Gamble, was tried by jury and convicted of Possession of Marijuana, Second and Subsequent Offense (
Because we find appellant’s first assignment of error determinative, a recitation of the facts is unnecessary. In his initial proposition, аppellant argues that reversible error occurred when the trial court allowed the introduction of a prior conviction during the first stage of trial. For the purpose of clarity, we will address sepa
At the beginning of trial, the district attorney read the Information, which included references to a prior conviction for possession of marijuana. Appellant objected to this both before trial and during the opening statements. The district attorney then made further comments about the former conviction during opening statements. He also read the judgment and sentence of the former conviction during the presentation of the State’s case.
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This Court has always been greatly concеrned with the prejudicial effect of prior convictions which are introduced during the guilt-innocence phase of trial. Harris v. State, 369 P.2d 187, 192 (Okla.Crim.App.1962); Lovell v. State, 455 P.2d 735, 736 (Okla.Crim.App.1969); Berry v. State, 476 P.2d 390, 391 (Okla.Crim.App.1970); Williams v. State, 565 P.2d 46, 50 (Okla.Crim.App.1977); Isom v. State, supra at 1290. Hence, we have cоnsistently held that reversible error occurs if
The determining factor regarding the introduction of prior convictions during the first stage of trial is whether the facts allеged are sufficient to allow the trier of fact to find a statute has been violated without introduction of the prior conviction. If the facts are sufficient, it is error to allow introduction of the former conviction. For example, in Isom, the defendant was charged under the felony-murder statute. The underlying felony was driving undеr the influence of alcohol, second and subsequent offense. Clearly, without introducing the former conviction for driving under the influence, the State would not have shown the essential element of “during the commission of a felony,” and the trier of fact would not have had sufficient facts to find a violation of the felоny-murder statute. Obviously, the case at bar differs from Isom. Appellant was charged with unlawful possession of marijuana. His pri- or conviction for possession of mаrijuana was not an element of the offense, but instead, was pertinent only for the purpose of enhancement of punishment. The trier of fact could have found a violation of
Insofar as appellant was also on trial for commercial gambling, thе introduction of this prior conviction was again error. Before trial, appellant made motion to the district court that the gambling charge be sevеred and tried separately to avoid prejudice arising from the introduction of the former conviction. The motion was overruled. As we stated in Harris v. State, supra, at 194, it is beyond question that knowledge of prior convictions must necessarily prejudice the trier of fact. Here, during deliberation, the jury sent a note to the judge, asking to see the record of the prior conviction. Clearly, the jury considered the past conviction. Furthermore, introduction of the prior conviction was a violation of
For the above reasons, this cause is REVERSED and REMANDED for a new trial.
BRETT, P.J., and BUSSEY, J., concur.
Rehearing
OPINION ON REHEARING
PARKS, Judge:On March 2, 1988, this Court reversed appellant’s convictions in Case No. CRF-
The test used to determine the sufficiency of evidence was enunciated by this Court in Spuehler v. State, 709 P.2d 202, 203 (Okla.Crim.App.1985), which adopted the standard set fоrth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (1979):
[W]hether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.
Specifically, appellant indicates his Spueh-ler claim is based on the insufficiency of evidence to show possession of the facilities which were used in the gambling operation.
A proper determination of this issue requires a review of the evidence presented with regard to the сommercial gambling conviction. Officer Wilson of the Tulsa Police Department testified he found gambling slips in the fireplace, a stamp used in the game “policy”, and adding machine tapes showing dollar totals. He explained, in depth, how the game “policy” was run and the paraphenalia required to monitor the game. He explained that the various adding machines and portable telephones found in the house were needed to run a large gаme of “policy”.
Officer Konkler testified that he was in charge of the search of the house located at 719 N. 23rd West Avenue. After obtaining a search wаrrant, Officer Konkler went to the house and knocked on the door. Appellant opened the door, and seeing police officers, slammed the door and locked it. Konkler obtained entrance to the house by kicking in the door. Subsequently, appellant was arrested.
Officer Arent, also of the Tulsа Police Department, testified he found a bank statement addressed to appellant during the search of the house located at 719 N. 23rd West Avenue. This is thе same location where the gambling paraphenalia was found. Obviously, appellant received mail at this address. Furthermore, appellant рossessed keys to the house.
Officer Siebert testified he discovered “shake stamps,” “shake pills,” and betting slips. All of these things are needed to coordinate a large game of “policy.” There was also testimony that appellant was seen leaving the residence on the previous day. Appellant returned after a couple of hours and remained there overnight.
Appellant argues this evidence is insufficient to show ownership of the premisеs. After a careful reading of the statute under which appellant was charged, we do not believe that “ownership” is a required element; rather, the State must prove that appellant was in possession of the facilities used for gambling purposes. See 21 O.S. 1981
Accordingly, this assignment of error is without merit. Therefore, in light of our previous opinion, this cause is remanded for a new trial.
IT IS SO ORDERED.
BRETT, P.J., and BUSSEY, J., concur.