Gavin Lee Hawkins v The State Of Oklahoma

F-2001-264

Filed: May 17, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gavin Lee Hawkins appealed his conviction for lewd molestation. Conviction and sentence: ten years for Count I and modified to ten years for Count III, served one after the other. Judge Lile noted that the prosecutor made a mistake in her closing argument, which led to the change in the second count's sentence. However, the court found no other significant errors in the trial. Judges Lumpkin, Johnson, Chapel, and Strubhar all agreed with the decision.

Decision

The Judgment of the trial court is AFFIRMED as to both counts and the Sentence on Count I is AFFIRMED. The Sentence is MODIFIED on Count II to ten (10) years imprisonment, with the sentences to run consecutive as ordered by the district court.

Issues

• Was there prosecutorial misconduct in the prosecutor's closing argument?
• Did the district court violate Mr. Hawkins' due process rights by failing to fully consider all available sentencing options?
• Did the trial court err by prohibiting Mr. Hawkins from calling Bianca Thomas as a witness?
• Did Appellant receive ineffective assistance of counsel?

Findings

• the court erred by modifying the sentence on Count III to ten (10) years due to improper prosecutorial closing argument
• evidence was sufficient to uphold the trial court's sentencing duties
• the trial court did not abuse its discretion by excluding the testimony of Bianca Thomas
• Appellant received ineffective assistance of counsel, but suffered no prejudice

F-2001-264

May 17, 2002

Gavin Lee Hawkins

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, JUDGE: Gavin Lee Hawkins was convicted at jury trial of Count I, Lewd Molestation and Count III, Lewd Molestation in violation of 21 O.S.1991, § 1123(A) in the District Court of Grady County in Case Number CF-1999-186. The Honorable Richard G. Van Dyck, District Judge, followed the jury verdict and sentenced Appellant to ten (10) years and twenty (20) years imprisonment, respectively, and ordered the sentences to be served consecutively. Appellant has perfected this Appeal.

Appellant raises the following propositions of error in support of his appeal:

1. THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT IN HER CLOSING ARGUMENT.
2. BY FAILING TO FULLY CONSIDER ALL AVAILABLE SENTENCING OPTIONS, THE DISTRICT COURT VIOLATED MR. HAWKINS’ DUE PROCESS RIGHTS. 1
3. THE TRIAL COURT ERRED WHEN IT PROHIBITED MR. HAWKINS FROM CALLING BIANCA THOMAS AS A WITNESS.
4. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

After a thorough consideration of these propositions and the entire record before us on appeal, including the original record, available transcripts and briefs of the parties, we have determined that modification is required under the facts and the law. Concerning Proposition I, the sentence on Count III should be modified to ten (10) years by reason of an improper prosecutorial closing argument. Smallwood v. State, 1995 OK CR 60, 907 P.2d 217; McCarty v. State, 1988 OK CR 271, 765 P.2d 1215. As for Proposition II, there is no evidence that the trial court did not properly fulfill its sentencing duties. In Proposition III, the trial court did not abuse its discretion by excluding the testimony of Bianca Thomas. State v. LeFebure, 1994 OK CR 38, 875 P.2d 431. Lastly, in Proposition IV, trial counsel performed below an objective standard of reasonableness, but Appellant suffered no prejudice. Strickland V. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant’s Application to Supplement the Record and Application for Evidentiary Hearing are denied.

DECISION

The Judgment of the trial court is AFFIRMED as to both counts and the Sentence on Count I is AFFIRMED. The Sentence is MODIFIED on Count II to ten (10) years imprisonment, with the sentences to run consecutive as ordered by the district court.

ATTORNEYS AT TRIAL

ATTORNEY ON APPEAL

SCOTT R. TACK
P.O. BOX 1409
CHICKASHA, OK 73023

J.W. COYLE, III
119 N. ROBINSON, SUITE 320
OKLAHOMA CITY, OK 73102

ATTORNEY FOR DEFENDANT

ATTORNEY FOR APPELLANT

LESLEY S. MARCH
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL
GRADY COUNTY COURTHOUSE
DIANE L. SLAYTON
CHICKASHA, OK 73018
ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR STATE
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEY FOR APPELLEE

OPINION BY: LILE, J.

LUMPKIN, P.J.: CONCURS IN RESULTS

JOHNSON, V.P.J.: CONCURS

CHAPEL, J.: CONCURS

STRUBHAR, J.: CONCURS

RB

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Footnotes:

1. Okla. Stat. tit. 21 § 1123(A)
2. Smallwood v. State, 1995 OK CR 60, 907 P.2d 217
3. McCarty v. State, 1988 OK CR 271, 765 P.2d 1215
4. State v. LeFebure, 1994 OK CR 38, 875 P.2d 431
5. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123(A) - Lewd Molestation
• Okla. Stat. tit. 21 § 701.8 - Sentencing
• Okla. Stat. tit. 47 § 11-801(B)(1) - Traffic Control Devices

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Smallwood v. State, 1995 OK CR 60, 907 P.2d 217
• McCarty v. State, 1988 OK CR 271, 765 P.2d 1215
• State v. LeFebure, 1994 OK CR 38, 875 P.2d 431
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)