Gamble v. State

OPINION

PARKS, Judge:

The appellant, Larry James Gamble, was tried by jury and convicted of Possession of Marijuana, Second and Subsequent Offense (63 O.S.Supp.1984, § 2-402(B)(2)) and Commercial Gambling After Former Conviction of a Felony (21 O.S.1981, § 982 and 21 O.S.1981, § 51(A)), in Osage County District Court, Case No. CRF-83-105, before the Honorable J.R. Pearman, Special District Judge. The jury set punishment during the second stage at three (3) years imprisonment and ten (10) years imprisonment, respectively. Judgment and sentence was imposed accordingly. We reverse and remand for a new trial.

Because we find appellant’s first assignment of error determinative, a recitation of the facts is unnecessary. In his initial proposition, appellant 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*753rately the impact of this evidence as it relates to each of the convictions on appeal.

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.

Title 22 O.S.1981, § 860 forbids the introduction of prior convictions during the first stage of trial, “except in those cases in which former conviction is an element of the offense.” The State argues that the prior drug-related offense defined in 63 O.S.Supp.1984, § 2-402(B)(2) is an element of the crime, citing Isom v. State, 646 P.2d 1288, 1289-1290 (Okla.Crim.App.1982) as authority for this assertion. We must disagree.

This Court has always been greatly concerned 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 consistently held that reversible error occurs if 22 O.S.1981, § 860 is violated. See Baeza v. State, 478 P.2d 903, 905 (Okla.Crim.App.1971); Isom v. State, supra at 1291.

The determining factor regarding the introduction of prior convictions during the first stage of trial is whether the facts alleged 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 under 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 felony-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 marijuana 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 63 O.S.Supp.1984, § 2-402(B)(2) without the introduction of the former conviction. Accordingly, it was error to allow the introduction of the prior conviction during the first stage of trial and served only to prejudice the rights of appellant.

Insofar as appellant was also on trial for commercial gambling, the introduction of this prior conviction was again error. Before trial, appellant made motion to the district court that the gambling charge be severed 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 22 O.S.1981, § 860. Thus, due to the prejudicial effect of the prior conviction, as well as the clear violation of 22 O.S.1981, § 860, this conviction must also be reversed.

For the above reasons, this cause is REVERSED and REMANDED for a new trial.

BRETT, P.J., and BUSSEY, J., concur.