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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MICHAEL EMMANUEL ) ISHMAN, ) ) NOT FOR PUBLICATION Appellant, ) ) No. F-2018-136 V. ) FILED ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA THE STATE OF OKLAHOMA, ) ) JAN – 2 2020 Appellee. JOHN D. HADDEN CLERK SUMMARY OPINION HUDSON, JUDGE: Appellant, Michael Emmanuel Ishman, was tried and convicted by a jury in the District Court of Comanche County, Case No. CF- 2017-33, of Count 1: Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7(A); Count 2: Robbery with a Dangerous Weapon, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 801; and Count 3: Possession of a Firearm After Former Felony Conviction, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2014, § 1283(A). The jury recommended a sentence of life imprisonment with the possibility of parole for each count. The Honorable Gerald Neuwirth, District Judge, presided at trial and sentenced Ishman in accordance with the jury’s verdicts. Judge Neuwirth further ordered that all three counts run consecutively. Ishman now appeals, alleging the following propositions of error: I. THE EVIDENCE WAS INSUFFICIENT TO CORROBORATE THE TESTIMONY OF MS. CASTANEDA, WHO WAS AN ACCOMPLICE IN COUNT II, FIRST-DEGREE ROBBERY; II. APPELLANT’S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS PURSUANT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE JURY WAS ERRONEOUSLY INSTRUCTED AS TO THE RANGE OF PUNISHMENT FOR POSSESSION OF A FIREARM, AFTER FORMER CONVICTION OF TWO OR MORE FELONIES; III. ADMISSION OF OTHER BAD ACTS EVIDENCE PREJUDICED THE JURY, DEPRIVED APPELLANT OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL, AND WARRANTS REVERSAL OF THE SENTENCES; IV. THE INTRODUCTION OF STATE’S EXHIBITS 29, 30 AND 31 ALLOWED IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE TO BE ADMITTED WHICH DEPRIVED APPELLANT OF A FAIR TRIAL; V. APPELLANT’S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS PURSUANT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON ACCOMPLICE TESTIMONY; 1 Under 21 O.S.Supp.2015, § 13. 1, Ishman must serve a minimum of 85% of his sentence on both Count 1 and Count 2 before he is eligible for parole. 2 VI. THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER OFFENSES [SIC] OF SECOND-DEGREE DEPRAVED MIND MURDER, IN VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION; VII. ALTERNATIVELY, REVERSAL IS REQUIRED BECAUSE ANY FAILURE TO ADEQUATELY AND COMPLETELY PRESERVE ISSUES FOR REVIEW IN THIS COURT OR EFFECTIVELY ADVOCATE FOR THE CLIENT WAS THE RESULT OF THE INEFFECTIVE ASSISTANCE OF COUNSEL; VIII. APPELLANT’S SENTENCE IS EXCESSIVE; and IX. THE CUMULATIVE EFFECT OF ALL THE ERRORS ADDRESSED ABOVE DEPRIVED APPELLANT OF A FAIR TRIAL. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED. Proposition I. Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to find the essential elements of the Count 2 robbery with a dangerous weapon charge. Jackson V. Virginia, 443 U.S. 307, 319, 3 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Gordon v. State, 2019 OK CR 24, I 32, 451 P.3d 573, 583. Review of the record before this Court shows Dimarie Castaneda was not an accomplice as a matter of law. We have held that “[a]n accomplice is one who is or could be charged for the offense for which the accused is being tried.” Mitchell V. State, 2018 OK CR 24, I 16, 424 P.3d 677, 683. However, “[t]he mere fact that an Information had been filed against [the witness] is not of itself dispositive of whether [he or she] was legally an accomplice.” Bowie U. State, 1995 OK CR 4, I 25, 906 P.2d 759, 763. Under the evidence presented at trial, Castaneda could not be charged with robbery with a dangerous weapon because there is no evidence that she intended to participate in the crime or even that she knew it was going to occur. Id. Castaneda’s testimony thus did not require corroboration. See 22 O.S.2011, § 742. Proposition I is denied. Proposition II. Our review of this claim is for plain error only because Appellant did not object to the sentencing instructions. Thompson v. State, 2018 OK CR 5, I 7, 419 P.3d 261, 263. Under the plain error test, “we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her 4 substantial rights.” Gordon, 2019 OK CR 24, “I 16, 451 P.3d at 581. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Baird U. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883; 20 O.S.2011, § 3001.1. Appellant shows plain error from the trial court’s sentencing instruction for Count 3 which erroneously stated the minimum sentence as four years. The correct minimum punishment for this crime based upon Appellant’s two prior felony convictions was three years. 21 O.S.2011, §§ 51.1 (C), 1284. This plain error nonetheless was harmless because the jury recommended-and the judge sentenced-Appellant to the maximum term allowed by statute. The life sentence imposed in this case goes well beyond the three-year minimum sentence governing his crime and thus did not prejudice Appellant. The instructional error here did not have a substantial influence on the outcome of the case and does not leave the Court in grave doubt as to whether it had such an effect. Simpson U. State, 1994 OK CR 40, II 35-36, 876 P.2d 690, 702. Proposition II is denied. 5 Proposition III. Appellant did not object to any of the testimony he now claims was improperly admitted other crimes or bad acts evidence. We thus review for plain error only. White U. State, 2019 OK CR 2, 15, 437 P.3d 1061, 1067. “The basic law is well established-when one is put on trial, one is to be convicted-if at all-by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded.” Vanderpool v. State, 2018 OK CR 39, I 22, 434 P.3d 318, 324 (citing Lott U. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334). Title O.S.2011, § 2404(B) nonetheless allows for the admission at trial of other crimes or bad acts evidence for limited purposes such as proof of motive, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Appellant shows plain error from Trooper Fausett’s testimony that Appellant was in possession of a stolen vehicle on November 5, 2016, when he collided with Diane Karnuth on the Turner Turnpike. This testimony was nonetheless harmless in light of the OUJI-CR (2d) 9-9 limiting instruction for other crimes or bad acts evidence that was included in the written charge and the fact that Appellant’s guilt for all three crimes was overwhelmingly proved in this case. This 6 testimony did not have a substantial influence on the outcome of the case and does not leave the Court in grave doubt as to whether it had such an effect. Simpson, 1994 OK CR 40, 91 35-36, 876 P.2d at 702. The same is true for Trooper Fausett’s testimony that Appellant had outstanding warrants. Assuming arguendo plain error from the admission of this testimony, it was nonetheless harmless for the reasons discussed earlier: the properly-admitted evidence overwhelmingly established Appellant’s guilt for all three crimes and the jury received the OUJI-CR (2d) 9-9 limiting instruction. The portion of Castaneda’s testimony describing how Appellant hit her had little relevance to the State’s case beyond establishing a narrative and timeline of Appellant’s actions on the day of the murder. However, there is no actual or obvious error affecting Appellant’s substantial rights from this challenged evidence and, thus, no plain error. Defense counsel skillfully clarified through cross that Appellant slapped her and then recast this event as bias evidence which, of course, is never collateral. Beck U. State, 1991 OK CR 126, I 12, 824 P.2d 385, 388. Moreover, as discussed above, the State presented strong evidence establishing Appellant’s guilt for all three charges alleged in this case. 7 The balance of testimony challenged by Appellant in this proposition either does not amount to improperly admitted other crimes or bad acts evidence or amounts to invited error by defense counsel. See Chambers v. State, 1988 OK CR 255, IT 10, 764 P.2d 536, 538; Casey U. State, 1987 OK CR 12, “I 10, 732 P.2d 885, 888. There is no plain error from this testimony. Proposition III is denied. Proposition IV. Appellant did not object to the admission of State’s Exhibits 29, 30 and 31 at trial. Our review is for plain error only. Terrell U. State, 2018 OK CR 22, I 3, 425 P.3d 399, 400. Appellant fails to show actual or obvious error. The jury was read a stipulation by Appellant that he was charged and convicted of all three prior felony convictions reflected in Tulsa County District Court Nos. CF-2004-5547, CF-2005-1378 and CF-2009-3214. The record does not show, however, that the written judgment and sentence documents introduced as State’s Exhibits 29, 30 and 31 were ever sent with the jury during their deliberations. Because the record is silent as to whether the jury viewed or was provided with a copy of the judgment and sentence documents now challenged on appeal, we must decline to find error. See Welch U. State, 1998 OK CR 54, I 41, 968 P.2d 1231, 1245 (“It is well established that it is Appellant’s 8 burden to ensure a sufficient record is provided to this Court to determine the issues raised. This Court does not assume error from a silent record.”) (internal citation omitted). See also 22 O.S.2011, § 893; Duvall U. State, 1989 OK CR 61, I 12, 780 P.2d 1178, 1180. Proposition IV is denied. Proposition V. Appellant concedes that he did not request below an accomplice-corroboration instruction for Castaneda’s testimony or otherwise object to the instructions that were given. Our review is limited to plain error. See Davis v. State, 2018 OK CR 7, I 29, 419 P.3d 271, 281. Appellant fails to show actual or obvious error. No accomplice corroboration instruction was necessary for Castaneda’s testimony because, as we determined in Proposition I above, she was not an accomplice. Proposition V is denied. Id. (“Instructions are sufficient where they state the applicable law.”) (internal quotation omitted). Proposition VI. Appellant did not request instructions on second degree depraved mind murder or any other lesser offense at trial, let alone object to the instructions actually given. We therefore review this claim solely for plain error. White, 2019 OK CR 2, I 14, 437 P.3d at 1067. Appellant does not show actual or obvious error. 9 The record evidence does not show that a rational juror could have acquitted Appellant of first degree malice aforethought murder and convicted him on second degree depraved mind murder. See 21 O.S.2011, § 701.8; White, 2019 OK CR 2, I 14, 437 P.3d at 1067; Tryon v. State, 2018 OK CR 20, ‘I 66, 423 P.3d 617, 637. There is no plain error. Proposition VI is denied. Proposition VII. To prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland U. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See also Harrington U. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011) (summarizing Strickland two-part test). We have denied relief for the various grounds alleged in Propositions I, II, III, IV, V and VI, finding all but two of these propositions to be meritless. Trial counsel was not ineffective for failing to raise meritless claims. See Logan U. State, 2013 OK CR 2, I 11, 293 P. .3d 969, 975 (“The omission of a meritless claim cannot constitute deficient performance; nor can it have been prejudicial.”). We found plain error in Proposition II that was nonetheless harmless based upon the incorrect punishment 10 range set forth in the sentencing instruction for Count 3. We found or assumed plain error in Proposition III that was also harmless based upon the admission of other crimes or bad acts evidence. Based upon our discussion above of those particular issues, Appellant fails to show Strickland prejudice, i.e., that there is a reasonable probability of a different outcome at trial but for defense counsel’s deficient performance. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Appellant likewise fails to show prejudice for the balance of his ineffectiveness claims. Proposition VII is denied. Proposition VIII. “This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience.” Baird, 2017 OK CR 16, I 40, 400 P.3d at 886; Rea U. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149. In judging whether a defendant’s sentence is excessive, we do not conduct a proportionality review on appeal. Rea, 2001 OK CR 28, I 5, 34 P.3d at 149. Finally, “[t]he decision to run sentences consecutively or concurrently is within the trial court’s discretion.” Holtzclaw v. State, 2019 OK CR 17, I 66, 448 P.3d 1134, 1154. The sentences imposed in this case do not shock the conscience and are not excessive. The jury’s sentencing 11 recommendations are factually substantiated and appropriate based on the facts of this case. The trial court’s decision to run Appellant’s three life sentences consecutively also does not constitute an abuse of discretion. See Holtzclaw, 2019 OK CR 17, I 66, 448 P. 3d at 1154 (“An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts.”). Proposition VIII is denied. Proposition IX. Appellant alleges the cumulative effect of the alleged error set forth in his various propositions warrants relief. We found or assumed plain error in Propositions II and III but nonetheless found it harmless. “Cumulative error does not require relief where the errors, considered together, do not affect the outcome of the proceedings.” Gordon, 2019 OK CR 24, ” 47, 451 P.3d at 586 (internal quotation omitted). Such is the case here. “This simply is not a case where numerous irregularities during Appellant’s trial tended to prejudice his rights or otherwise deny Appellant a fair trial.” Tryon, 2018 OK CR 20, I 144, 423 P.3d at 656. Proposition IX is denied. 12 DECISION The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision. AN APPEAL FROM COMANCHE COUNTY DISTRICT COURT THE HONORABLE GERALD NEUWIRTH, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL LARRY CORRALES KATRINA CONRAD-LEGLER P.O. BOX 2095 OKLA. INDIGENT DEFENSE LAWTON, OK 73502 SYSTEM COUNSEL FOR DEFENDANT P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT KYLE CABELKA MIKE HUNTER ASSISTANT DISTRICT ATTORNEY OKLA. ATTORNEY GENERAL COMANCHE COUNTY JOSHUA R. FANELLI 315 S.W. 5TH ST. ASST. ATTY. GENERAL LAWTON, OK 73501 313 N.E. 21 ST STREET COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: HUDSON, J. LEWIS, P.J.: CONCUR IN RESULTS KUEHN, V.P.J.: CONCUR LUMPKIN, J.: CONCUR IN RESULTS ROWLAND, J.: CONCUR 13

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