June Maxine JONES, Appellant,
v.
The STATE of Oklahoma, Appellee.
Court of Criminal Appeals of Oklahoma.
Ronald H. Mook, Tulsa, for appellant.
Robert H. Henry, Atty. Gen., Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for appellee.
*923 OPINION
PARKS, Judge:
June Maxine Jones, appellant, was tried by jury and convicted of Possession of a Controlled Dangerous Substance (Cocaine) With Intent to Distribute in violation of 63 O.S.Supp. 1986, § 2-401, in Oklahoma County District Court, Case No. CRF-87-211, before the Honorable William Saied, District Judge. The jury set punishment at ten (10) years imprisonment, and judgment and sentence was entered accordingly. We affirm.
During the late evening of January 9, 1987, and the early morning of January 10, 1987, Oklahoma City police officers executed a search warrant on the Clayburn Robinson residence. Upon entering the residence, officers found four men, one woman (appellant), and a child. Detective Charles Hill observed a person wearing a sweatshirt move toward the back of the house. Hill testified appellant was the only person in the residence wearing a sweatshirt. Hill pursued a black male, who proceeded to stomp on a glass pipe, into the kitchen, where Hill recovered remnants of glass, wire mesh, and filters consistent with a cocaine pipe. Detective Glenn Ring proceeded down the hallway when he noticed a closed door. Announcing his status as a police officer, Ring tried to open the door, but someone shut it. Subsequently, Detective Ring, with the assistance of Detective Upchurch, forced open the door and apprehended appellant in a bathroom. A snakeskin purse found nearby in the bathtub contained nineteen (19) $50.00 "rocks" of cocaine, three (3) $25.00 "rocks" of cocaine, and one "rock" of cocaine weighing six and one-half grams, with a total street value of around $2,575.00. A total of $1,773.00 was found in appellant's pants pocket, including one five dollar ($5.00) bill and one twenty dollar ($20.00) bill, which had earlier been supplied by the police to an informant for a controlled buy of cocaine and were identified by recorded serial numbers. The purse contained a large baggie of smaller zip lock baggies. Several books of food stamps were found near the purse, as well as a red address book, which contained the phone numbers of several individuals the police associated with appellant. The police also seized several items from the kitchen area, including razor blades, baking soda, a bottle of bacardi *924 rum, and a number of small plastic zip lock baggies. Detective Hill testified that food stamps were often exchanged for cocaine, that razor blades were used to chip the rock cocaine for distribution, that baking soda was used in the cooking of crack cocaine, that rum was used as a heat source, and that plastic baggies were commonly used in packaging cocaine for distribution.
Appellant testified that neither the purse, State Exhibit 1, nor any of its contents, belonged to her. She said she won thirty-five or forty dollars playing cards with three other people in the house, and that she had about nineteen hundred dollars ($1900.00) in cash in her pocket when she arrived in Oklahoma City. Clayburn Robinson testified that appellant was a guest in his home on January 9-10, when the police searched his home, and that he had just met appellant that day. Robinson stated that three other women left before the police arrived.
Appellant first claims the trial court erred in four instances by allowing Detective Hill to testify to matters outside his personal knowledge contrary to
Appellant next contends the trial court erred in admitting other crime evidence, and in failing sua sponte to give a limiting instruction. The requirements set forth in Burks v. State,
Concerning the limiting instruction, two members of this Court recently held that "the trial court must always give the limiting instructions" whether requested or not. Landtroop v. State,
When evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court shall upon request restrict the evidence to its proper scope and instruct the jury accordingly.
Prior decisions have held that a defendant's right to a limiting instruction under Burks is waived by the failure to object *925 and request one.[1] However, the Landtroop opinion only expressly recognized, and thus overruled, one of the foregoing cases, e.g., Koonce v. State,
We hold that the intent of the Legislature in enacting Section 2106 of the Oklahoma Evidence Code reflects that the failure of a trial court to give a limiting instruction sua sponte does not automatically constitute reversible error unless it arises to the level of plain error under
Plain errors are "errors affecting substantial rights although they were not brought to the attention of the court."
On the record before us, we cannot say the failure of the trial court to give a limiting instruction sua sponte deprived appellant of a substantial right rising to the level of plain error under
In her third and final assignment, appellant argues the trial court erred in overruling her demurrer to the evidence, more properly termed a motion for a directed verdict, because the State failed to introduce sufficient evidence to prove possession and intent to distribute. We disagree. Initially, we note appellant waived her motion for a directed verdict by offering evidence in her own defense and, therefore, the sufficiency of the evidence will be determined by reviewing the record as a whole in the light most favorable to the *926 State. See Doyle v. State,
Because the proof presented by the State consisted of both direct and circumstantial evidence, the test for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. See Riley v. State,
"When a controlled dangerous substance is not found on the accused but on premises to which several persons have access, possession cannot be inferred simply because the drugs were found on the premises, but the State must introduce additional facts from which it fairly can be inferred that the accused had dominion and control over the seized substance." Doyle,
The State's evidence showed that at the time police officers entered the residence of Clayburn Robinson, appellant was seen moving from the living room down the hallway towards a bathroom, where she was apprehended after detectives forced open the door. Although four men and a male child were apprehended in the living room and kitchen area, appellant was the sole female found in the house and the only occupant in the hall bathroom. In a nearby bathtub, officers found a snakeskin purse which held a large number of plastic packages containing a total of twenty-three (23) "rocks" of cocaine having a total street value of $2,575.00. The purse also contained several cigarette lighters, a package of cigarettes, chap stick, loose change, and a large plastic baggie containing a number of smaller plastic zip lock baggies. A total of $1,773.00 in cash was found in appellant's front pants pocket, including one five dollar ($5.00) bill and one twenty dollar ($20.00) bill which had been earlier supplied by police to an informant for a controlled buy of cocaine. The two bills were identified by previously recorded serial numbers. Several books of food stamps as well as a red address book were found in close proximity to the purse. Detective Hall testified the address book contained the phone numbers of several individuals that the police "associated" with appellant.
On the basis of the foregoing, we find appellant's reliance on Lay v. State,
Accordingly, the judgment and sentence is AFFIRMED.
BRETT, P.J., and LANE and LUMPKIN, JJ., concur.
BUSSEY, J., concurs in result.
NOTES
Notes
[1] See, e.g., Dunagan v. State,
[2] See also Drew v. State,