Jimmy Allen Phillips v The State Of Oklahoma

F-2004-576

Filed: Jun. 8, 2005

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jimmy Allen Phillips appealed his conviction for two counts of Rape by Instrumentation. He was sentenced to 12 years and 22 years in prison, which would be served one after the other. Phillips argued that he did not have a fair trial because the prosecutor made improper statements during closing arguments. The court reviewed the case and agreed that the prosecutor's comments were wrong but decided not to overturn the conviction. Instead, they modified his sentence so that both sentences would be served at the same time. There was no dissent in this decision.

Decision

The Judgments are AFFIRMED and the Sentences are ordered MODIFIED to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was Mr. Phillips denied a fair trial because of the improper remarks made by the prosecutor during closing argument?
• did the improper statements made by the prosecutor warrant reversal of the conviction?
• should Mr. Phillips's sentences be modified to be served concurrently rather than consecutively?

Findings

• The prosecutor's improper arguments require relief.
• The Judgments are AFFIRMED.
• The Sentences are ordered MODIFIED to be served concurrently.

F-2004-576

Jun. 8, 2005

Jimmy Allen Phillips

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL & RICHIE CHAPEL, PRESIDING JUDGE:

After a jury trial in Rogers County District Court Case No. CRF-2003-324, Jimmy Phillips was convicted of two counts of Rape by Instrumentation in violation of 21 O.S.2001, § 1114.1. Following the jury’s recommendation, the Honorable Terry H. McBride sentenced Phillips to serve consecutive sentences of twelve (12) years’ imprisonment and twenty-two (22) years’ imprisonment for the two counts. Phillips has perfected his appeal to this Court.

Phillips raises the following proposition of error: Mr. Phillips was denied a fair trial because of the improper remarks made by the prosecutor during closing argument. After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and parties’ exhibits, we find that reversal is not required but that Phillips’s sentence should be modified to be served concurrently. We find in Proposition I that the prosecutor’s improper arguments require relief.²

Phillips had also been charged with two counts of Lewd Molestation that were dismissed prior to trial. The prosecutor improperly stated that he believed in his case, that by abusing a child the defendant kicked sand in the eyes of God, and that the last tear shed in this case would be God’s. The comments are improper and arguably prejudicial. Regardless, relief should be granted. The prosecutorial misconduct in this case does not warrant reversal. Some form of relief, however, is warranted. Otherwise, there is no incentive against such improper argument. See Hooks v. State, 19 P.3d 294, 317 (Okl.Cr.2001), cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282.

Decision
The Judgments are AFFIRMED and the Sentences are ordered MODIFIED to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL
WILLIAM R. HIGGINS
417 WEST FIRST STREET
CLAREMORE, OKLAHOMA 74017

ATTORNEYS ON APPEAL
GLOYD McCOY
119 N. ROBINSON, SUITE 1000
OKLAHOMA CITY, OKLAHOMA 73102
ATTORNEY FOR DEFENDANT

PATRICK ABITBOL
ASSISTANT DISTRICT ATTORNEY
ROGERS COUNTY COURTHOUSE
CLAREMORE, OKLAHOMA 74017

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER B. MILLER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, P. J.
LUMPKIN, V.P.J.: CONCUR IN RESULTS
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR

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Footnotes:

1. Okla. Stat. tit. 21 § 1114
2. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004
3. Hooks v. State, 19 P.3d 294, 317 (Okl.Cr.2001), cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114 - Rape by Instrumentation

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:

• Hooks v. State, 19 P.3d 294, 317 (Okl.Cr.2001)