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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JIMMY ALLEN PHILLIPS, ) ) Appellant, ) NOT FOR PUBLICATION V. ) Case No. F-2004-576 } FILED THE STATE OF OKLAHOMA, IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) JUN 8 2005 SUMMARY PINI MICHAEL & RICHIE CHAPEL, PRESIDING JUDGE: CLERK 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 0.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 1 Phillips had also been charged with two counts of Lewd Molestation that were dismissed prior to trial. 2 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 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 ATTORNEYS ON APPEAL WILLIAM R. HIGGINS GLOYD McCOY 417 WEST FIRST STREET 119 N. ROBINSON, SUITE 1000 CLAREMORE, OKLAHOMA 74017 OKLAHOMA CITY, OKLAHOMA 73102 ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT PATRICK ABITBOL W.A. DREW EDMONDSON ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA ROGERS COUNTY COURTHOUSE JENNIFER B. MILLER CLAREMORE, OKLAHOMA 74017 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 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.

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