Description: Oklahoma City, Oklahoma, criminal defense lawyer represented the Defendant charged with first-degree murder.

Appellant's first-degree felony murder charge was predicated on alternative factual theories. The State alleged the murder occurred either while Appellant was in the commission of robbery with a dangerous weapon or while in the commission of distribution of a controlled dangerous substance (marijuana).1 In the end, the jury's guilty verdict was based on the jury's finding that the murder occurred while Appellant was in the commission of distributing marijuana.

¶5 In his sole proposition, Appellant contends the evidence shows he was a buyer, not a distributor of the marijuana. Relying on Simms v. State, 2021 OK CR 35, 499 P.3d 1236, Appellant argues that as a buyer he cannot be held liable as a principal to the underlying felony of drug distribution. He thus complains the State's evidence was insufficient to support his felony-murder conviction.

¶6 This is the second trip to this Court for Appellant on this claim. Prior to sentencing, Appellant filed a motion to dismiss and set aside the jury's verdict in district court. Citing this Court's recent decision in Daniel v. State, No. C-2019-15 (Okl.Cr., June 25, 2020) (unpublished), Appellant asserted the State erroneously charged him with felony-murder based on the theory of distribution as there was no evidence that he was anything other than a buyer or a recipient of marijuana. The State in its written response conceded the invalidity of Appellant's conviction based on Daniel and the State's erroneous argument at trial that Appellant, as a buyer, aided and abetted the distributor and was thus a principal to the felony drug distribution. The State asserted that modification of Appellant's sentence to first-degree manslaughter while endeavoring to possess a controlled dangerous substance was the appropriate remedy but contended the trial court lacked the authority to do so. For this reason, the State requested the district court proceed to formal sentencing and exercise its authority provided by 22 O.S.Supp.2020, § 991a and suspend all but the first twenty-five years of Appellant's life sentence.

¶7 The trial court subsequently denied Appellant's motion to dismiss but vacated and set aside the jury's verdict based on this Court's ruling in Daniel. Judge Mai found evidence presented at trial indicated Appellant was one of several buyers in the drug transaction that led to the victim's death. Judge Mai granted a stay of the execution of her order of release pending appeal by the State. On January 15, 2021, this Court granted the State's Petition of Writ of Prohibition, finding the trial court lacked the legal authority to vacate the jury's finding of guilt. Appellant was formally sentenced on April 1, 2021.

¶8 We turn now to the case at hand and find Appellant's claim has merit. "[F]elony-murder is committed when a death results from a defendant's commission of certain enumerated felonies." Simms, 2021 OK CR 35, ¶ 8, 499 P.3d at 1239. "[O]ne is liable for felony murder only where they could also be charged with the underlying predicate crime." Id., 2021 OK CR 35, ¶ 8, 499 P.3d at 1240 (quoting Daniel, No. C-2019-15, slip op. at 2 (Okl.Cr., June 25, 2020) (Rowland, J. Concurring in Results) (unpublished)). To be convicted as a principal to a crime, the evidence must show the defendant directly committed each element of the offense or aided and abetted another in its commission. 21 O.S.2011, § 172. With regard to the crime of drug distribution, we have specifically rejected the argument that the buyer, by seeking drugs, aids and abets the distributor of the drugs and is thus criminally liable as a principal to the felony drug distribution.2 Simms, 2021 OK CR 35, ¶ 9, 499 P.3d at 1240. Thus, "[w]ithout evidence of something more than just receipt, the buyer/receiver of the controlled substances commits the crime of 'possession' and not 'distribution,' and [ ] cannot be charged as a principal to the distributor's crime of distribution." Id., 2021 OK CR 35, ¶ 7, 499 P.3d at 1239.

¶9 The State tells us on appeal that Appellant did "something more," which transformed him into a principal to the victim's crime of distribution. We disagree. That Appellant purportedly acted as a lookout while he and his confederates attempted to obtain the drugs does not rise to the level of "something more." This evidence falls significantly short of proving Appellant was aiding and abetting the victim in the distribution.3 Nothing in the evidence shows that Appellant, as a lookout, was actively and directly acting on behalf of the victim to aid him in the commission of distribution. Simms, 2021 OK CR 35, ¶ 7, 499 P.3d at 1239 (an accomplice is one that participates in the same criminal conduct). Compare, Hindman v. State, 1982 OK CR 98, ¶¶ 6-9, 647 P.2d 456, 457 (evidence of a prearranged conspiracy between the seller and the defendant was sufficient to show that the defendant was more than a procuring agent for the buyer). At most, the evidence shows Appellant was aiding and abetting his confederate buyers to ensure their unlawful acquisition of the marijuana. The evidence was thus insufficient to show that Appellant and the victim had any type relationship other than buyer and seller. See Simms, 2021 OK CR 35, ¶ 7, 499 P.3d at 1239 ("Even though it can be said that both intend the sale to be made, this fact alone cannot be taken to mean the buyer as a matter of law is an accomplice of the seller."). Appellant's felony-murder conviction based on the underlying predicate crime of distribution must be REVERSED.

¶10 We must next determine the appropriate relief. Appellant argues retrial on the State's alternative robbery with a dangerous weapon theory is barred by the Double Jeopardy Clause. U.S. Const. Amend. V, XIV. He asserts the jury's silence impliedly acquitted him on the alternative robbery with a dangerous weapon theory and the lesser offense of second-degree murder during the commission of second-degree robbery. Appellant thus contends the only appropriate remedy is that of a new trial limited to the lesser offense of first-degree manslaughter while endeavoring to possess a controlled dangerous substance.4 Upon review, we find Appellant's original jeopardy for the State's alternative robbery with a dangerous weapon theory has yet to terminate.

¶11 Contrary to Appellant's assertion, it cannot be assumed in this case that the jury impliedly acquitted Appellant of these offenses. See Simms, 2021 OK CR 35, ¶ 11, 499 P.3d at 1240. Appellant was charged with alternative means of committing the same crime. His conviction on one of the two theories does not logically exclude a conviction on the alternative felony-murder charge. A partial acquittal cannot be inferred under these circumstances. Id. (citing United States v. Feldman, 931 F.3d 1245, 1256, 1257 (11th Cir. 2019)).

¶12 As in Simms, the verdict form in the present case reveals that the jury made no findings as to the State's alternative robbery with a dangerous weapon theory. Indeed, the verdict form is not materially different from those given in Simms. Id., 2021 OK CR 35, ¶ 12, 499 P.3d at 1240-41. The jury's election of the State's distribution theory cannot be said to imply anything and does not equate to an implied acquittal on the State's alternative robbery with a dangerous weapon theory. Moreover, Appellant never voiced any objection to the jury's dismissal after the verdict and allowed the jury to be released without polling them on the alternative felony-murder theory. The total circumstances thus compel the conclusion that Appellant impliedly consented to the dismissal of the jury without it having made a finding on the alternative felony-murder theory of robbery with a dangerous weapon. See Feldman, 931 F.3d at 1256-57 (a defendant's consent need not be express but may be implied from the circumstances).

¶13 For these reasons, we find Appellant's original jeopardy for first degree felony-murder while in the commission of robbery with a dangerous weapon has not terminated, and we REMAND the case to the District Court for a NEW TRIAL on this theory, along with the lesser offense of second-degree murder during the commission of second degree robbery, and the offense of first-degree manslaughter while endeavoring to possess a controlled dangerous substance.

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