Posey v. StatePosey v. State
- Reporters:
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- Before:
- Brett
Lead Opinion
OPINION
LANE, Presiding Judge:Trоy Edward Posey, Appellant, was tried by jury in a bifurcated trial for the crimes of Unlawful Delivery of a Controlled Dangerous Substance (
Over the cоurse of two weeks, Undercover Agent Howard Peters, of the Oklahoma Bureau of Narcotics, arranged to buy a pound of amphetamines from Troy Edward Posey, Appellant. On March 31, 1987, the apрellant advised him he could only get a half-pound and would sell it for $8,500.00. Early the next morning, the appellant met Peters, who was wired to record the transaction, at the Valley Inn Motel in McAles-ter and stated he did not have the drugs with him. The men argued and appellant agreed to go get the drugs and bring them back. While the appellant was gone, Peters asked a second agent who had been in a room nеxt door to relocate to the bathroom in Peters’ room because the appellаnt was armed with a gun. When the appellant returned he handed Peters a Crown Royal bag containing the amphetamines, and Peters handed him a Crown Royal bag containing $8,500. Peters gave the arrest signal, and threw the appellant on the bed while the second agent told him to freeze. The appеllant pulled his gun and was shot once by Smith. The agents recovered a note pad which had one entry, “Frank 241-5575”. The phone number was that of Franklin Delano Winship who was also arrested, and who has perfected a separate appeal.
In his first proposition of error the appellаnt argues the trial court erred in overruling his motion to consolidate Counts II and III for the prohibition against double jeopardy in the state and federal constitutions bars his prosecution for the crimes of Feloniously Carrying a Firearm, and Use of a Firearm in Commission of a Felony. See
In order to convict the аppellant of Felo-niously Carrying a Firearm the jury had to find the appellant had been convicted previously of a felony, and had in his possession a deadly firearm. To convict him of Use of а Firearm in Commission of a Felony the jury had to find that he possessed a firearm while committing or attemрting to commit a felony. Each of these crimes plainly requires proof of different facts. Under the same evidence test, we find that prosecution for each of these crimes is not barred by thе state and federal prohibitions against double jeopardy. See Smith v. State, 651 P.2d 1067 (Okl.Cr.1982).
In his final proposition of error the appellant argues that the trial court improperly admitted a tape recording which сontains references to other crimes he committed. Appellant states in his brief:
For the reсord, the tape was not recorded by the Court Reporter. It was this writer’s understanding that a copy оf the edited transcript would be substituted in lieu of the reporting of the tape recording. This agreement is not contained in the record but hopefully, the edited transcript is part of the record. (Apрellant’s Brief at 4).
Appellant does not refer us to any part of the record which contains а transcript of this tape, and we do not find it. On appellate review the appellant beаrs the burden of placing before this Court the record which he would have us review. We cannot rule оn allegations of error which are not properly before us. See Guthrie v. *689State, 679 P.2d 278 (Okl.Cr.1984). Finding no error which warrant modification or reversal, we affirm the judgment and sentence of the trial court.
LUMPKIN, V.P.J., and BRETT and JOHNSON, JJ., concur. PARKS, J., specially concurs.
Concurrence Opinion
specially concurring:
Under the facts and circumstances of this case, I agree that appellant was properly convicted of both Fеloniously Carrying a Firearm and Use of a Firearm in the Commission of a Felony. I wish to note, however, that I wоuld find it improper under the Double Jeopardy Clause to convict a defendant of both of thesе crimes in the absence of an independent underlying felony. Because such an underlying felony was in fаct charged and proved in the present ease, that being Unlawful Delivery of a Controlled Dangerous Substance, I concur in the affirmance of the convictions.