McKee v. State , 531 P.2d 343 ( 1975 )

OPINION

BUSSEY, Judge:

Scotty McKee, hereinafter referred to as defendant, was charged by Information filed in the District Court, Jackson County, with having committed the offense of Unlawful Distribution of Marijuana while acting in concert with Edward Ortega on or about the 18th day of April, 1973, by delivering and distributing marijuana to one Gregory Butler. (In violation of 63 O.S., § 2-401.) Upon motion a severance was granted the two defendants. Defendant McKee was found guilty by jury ver-diet and in accordance with that verdict he was sentenced to imprisonment in the State penitentiary for a period of two (2) years and fined in the amount of Five Hundred ($500.00) dollars (Case No. CRF-73-63).

At trial the State’s witness, Gregory Butler, testified that he was a bonded Deputy Sheriff in Jackson County working as an undercover narcotic agent and that on the night of April 18, 1973, he purchased a lid of marijuana from defendant and Edward Ortega in Altus, Oklahoma. Butler stated that he was in the company of an informer, Darrell McDonald, in McDonald’s car which McDonald was driving, and that around 11:05 they pulled into the Sonic Drive-In and parked on the right of defendant’s pickup. Ortega was sitting in the passenger seat of defendant’s pickup and McDonald asked him if he had any lids for sale. Butler stated that Ortega turned and conferred with the defendant and then told McDonald that they had sold all they had except one and that they wanted to keep that one lid. Butler said that he then reached over and told Ortega that he needed a lid to take back to Law-ton, Oklahoma, with him as he had no way to get marijuana in Lawton. According to Butler’s testimony, Ortega then conferred with McKee again and then Ortega told Butler to name his price to which Butler replied that he would pay $12.00. Ortega then turned to McKee and turned back to Butler shaking his head no. Butler then told Ortega that he would pay $14.00 whereupon Ortega turned to McKee, back to Butler and said, “Follow us.” Butler stated that they then followed Ortega and the defendant to the Kentucky Fried Chicken parking lot. He stated that he got out of the car and went over to the right side of the pickup, Ortega moved over next to McKee, and he (Butler) got in the pickup and sat on the passenger’s side. Butler stated that he handed the $14.00 to Ortega who counted it and that Ortega then told McKee that all the money was there. According to Butler’s testimony McKee then reached across Ortega and handed Butler the baggie of marijuana. Butler stated that McKee apparently had the baggie in his lap, that defendant reached across Ortega, handing it directly to Butler, and that Edward Ortega never handled the marijuana.

The State produced two other witnesses, Craig Spraggins and Ronald Clodfelter, who ■ established the chain of custody of the evidence and the identity of the substance as marijuana. The defendant did not dispute either of these issues.

The defendant testified on his own behalf and denied that he had taken part in the sale negotiations as were related by Butler. He testified that Edward Ortega was a passenger in his pickup that evening and, that after the two of them drove around for awhile, they stopped at Clyde’s Drive-In where McDonald and Butler pulled up beside them. The defendant stated that he was talking with some guys across the street and that he heard a conversation between Ortega and McDonald in which McDonald asked Ortega if he had marijuana for sale and Ortega replied that he did not. Defendant stated that he and Ortega then drove around for awhile and stopped at the Sonic Drive-In whereupon Butler and McDonald again pulled up beside them. Defendant testified that he did not pay much attention to the conversation between Ortega and McDonald but that he knew that the conversation concerned whether or not Ortega had marijuana. The defendant testified that before their arrival at the Sonic, Ortega had not indicated to him that he had any marijuana and that during the conversation Ortega was having with McDonald and Butler, Ortega looked at defendant and said, “They wanted to buy some pot,” to which the defendant stated he replied, “I don’t have any.” Ortega then turned and talked to Butler and McDonald again and defendant testified that he heard McDonald talking about money and that McDonald kept raising his prices. Defendant related that Edward Ortega then said, “Okay” to McDonald and that Ortega asked the defendant to drive to Kentucky Fried Chicken which he did. Defendant related that after they parked in the Kentucky Fried Chicken parking lot Edward Ortega pulled some marijuana out from inside his pants and laid it on the seat between them. Defendant stated that this was the first time he became aware of the fact that Ortega had marijuana with him. He stated that Butler then came to the window and handed Ortega some money and Ortega handed Butler the baggie. Defendant stated that Ortega then told him to count the money, which he did, and returned the $14.00 to Ortega.

On appeal the first proposition of error concerns the instruction given by the trial judge on aiding and abetting. No objection to this instruction was interposed at trial by defense counsel and this issue is therefore improperly before the Court. We have consistently held that it is the duty and privilege of defense counsel, as an officer of the court, to aid the trial judge in preventing error by offering objections to improper instructions and submitting proposed instructions to the court. Where the record is void of objections and instructions are not submitted by counsel, the issue has not been preserved for review by this Court. Kidd v. State, Okl.Cr., 462 P.2d 281 (1969).

In his second proposition of error, counsel argues that the trial judge should have instructed the jury on possession of marijuana as a lesser included offense. We disagree with counsel’s assertion. The State’s evidence presented at trial, if believed, showed defendant guilty of the crime of Unlawful Distribution of Marijuana and nothing less. The defendant’s testimony, if believed, showed that he merely happened to be where the action was, without knowledge of the presence of marijuana and without control or dominion over the substance. Such evidence will not support a conviction for Possession of Marijuana. Brown v. State, Okl.Cr., 481 P.2d 475 (1971). We are of the opinion that the trial judge correctly refused defendant’s requested instruction as no reasonable view of the evidence could support an instruction on Possession. See, Jennings v. State, Okl.Cr., 506 P.2d 931, 934 11973).

Defendant’s final assignment of error concerns remarks made by the prosecutor during closing argument. We have carefully reviewed these statements and do not find that they were prejudicial to the defendant. No objection to the statements was made by the defendant and the issue therefore was not properly preserved for appeal. This Court has long followed the rule of law as set forth in Robison v. State, Okl.Cr., 430 P.2d 814 (1967), that:

“ . . . when objectionable statement is made by the prosecution, it should be called to the attention of the court by timely objection, together with a request that the jury be instructed to disregard the improper statement and in the event that the objection is overruled, an exception should be taken to the ruling of the court, preserved and argued in the Motion for New Trial. When this is not done the matter cannot be presented for the first time in the Motion for New Trial and in the Petition-in-Error and briefs on appeal.” at 818

For the above and foregoing reasons it is our opinion that the judgment and sentence appealed from should be, and the same hereby is affirmed.

BLISS, P. J., concurs. BRETT, J., dissents.