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N COURT OF UNIMAL APPEALS STATE OF OKLAHOMA AUG 1 4 2003 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MICHAEL S. RICHIE GLERK BRANDON J. GRIMLAND, ) ) Appellant, ) NOT FOR PUBLICATION V. ) Case No. F-2002-855 ) THE STATE OF OKLAHOM A, ) ) Appellee. ) SUMMARY OPINION CHAPEL, JUDGE: Brandon Grimland was tried by jury and convicted of First Degree Manslaughter in violation of 21 O.S. 2001, § 711, after two or more former convictions, in Muskogee County District Court Case No. CF-2001-656. In accordance with the jury’s recommendation, the Honorable Mike Norman sentenced Grimland to one hundred (100) years’ imprisonment. Grimland appeals from this conviction and sentence. Grimland raises the following propositions of error: I. The evidence was insufficient to find Mr. Grimland was guilty beyond a reasonable doubt. II. The prosecutor improperly raised questions about how much time Appellant served on prior convictions and, as a result, the jury improperly considered the possibility of parole, resulting in an excessive sentence which warrants modification. III. The sentence imposed was SO disproportionate and excessive under the circumstances of this case that it should shock the conscience of this Court. After thorough consideration of the entire record before us on appeal, in luding the original record, transcripts, briefs and exhibits, we find that the Judgment should be affirmed but that Grimland’s sentence must be modified. We find in Proposition I that the evidence was sufficient to establish that Grimland’s beating proximately caused Hughart’s death. We find in Proposition II that Grimland’s sentence must be modified from one hundred (100) years’ imprisonment to twenty-five (25) years’ imprisonment because the prosecutor improperly injected parole into the jury’s sentencing decision.³ Decision The Judgment is AFFIRMED and the Sentence is MODIFIED from one hundred (100) years’ imprisonment to twenty-five (25) years’ imprisonment. ATTORNEYS AT TRIAL ATTORNEYS ON APPEAL JOHN BUTLER DANNY G. LOHMANN CARLOS WILLIAMS APPELLATE DEFENSE COUNSEL JOHN BUTLER & ASSOCIATES P.O. BOX 926 6846 S. CANTON, SUITE 150 NORMAN, OKLAHOMA 73070 TULSA, OKLAHOMA 74136 ATTORNEY FOR APPELLANT ATTORNEYS FOR THE DEFENDANT DAVID PIERCE W.A. DREW EDMONDSON ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA 220 STATE STREET JENNIFER J. DICKSON MUSKOGEE, OKLAHOMA 74401 ASSISTANT ATTORNEY GENERAL ATTORNEY FOR THE STATE 112 STATE CAPITOL OKLAHOMA CITY, OKLAHOMA 73105 ATTORNEYS FOR APPELLLEE 1 Grimland had been charged with First Degree Murder. 2 Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985). The evidence established that Hughart died from blunt force trauma to the head as a result of the beating administered by Grimland and a subsequent stairwell fall that occurred as a direct result of the beating. Accordingly, a rational trier of fact could have found that Grimland was the proximate cause of Hughart’s death. We also find that the jury did not have to be instructed that the evidence had to exclude every reasonable hypothesis but Grimland’s guilt. 3 Stringfellow U. State, 744 P.2d 1277, 1279 (Okl.Cr.1987). The prosecutor repeatedly improperly injected parole into the jury’s sentencing decision. Although these questions and comments were unobjected to, they were plain error because they had a “substantial influence” on the jury’s sentencing recommendation Simpson v. State, 876 P. 2d 690, 702 (Okl.Cr. 1994). Proposition III is rendered moot due to the relief granted in Proposition II as a twenty-five (25) year sentence for First Degree Manslaughter is not excessive. 2 OPINION BY: CHAPEL, J. JOHNSON, P.J.: CONCUR IN RESULT LILE, V.P.J.: CONCUR IN PART/DISSENT IN PART LUMPKIN, J.: CONCUR STRUBHAR, J.: CONCUR 3 LILE, VICE PRESIDING JUDGE: CONCURS IN PART/DISSENTS IN PART I believe this case should be remanded for re-sentencing.

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