Anthony Marnette Hurst v The State Of Oklahoma

F-2006-191

Filed: Oct. 10, 2007

Not for publication

Prevailing Party: Anthony Marnette Hurst

Summary

Anthony Marnette Hurst appealed his conviction for Lewd Molestation. Conviction and sentence reversed. Lumpkin, C. Johnson, A. Johnson, and Lewis concurred, while no one dissented.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is REVERSED and the case is REMANDED for resentencing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a failure to properly instruct the jury, thereby denying Hurst a fair trial?
• Did the trial court err in failing to suppress evidence obtained in violation of Hurst's Fourth Amendment rights?
• Did the trial court commit error by restricting Hurst's attorney from commenting on certain impeachment evidence in closing argument?
• Did the accumulation of errors deprive Hurst of a fair trial in violation of his constitutional rights?

Findings

• the court did not err in failing to instruct the jury on the 85% Rule, and Hurst is entitled to resentencing with proper instructions
• the court did not err in refusing to instruct on eyewitness identification
• the court did not err in refusing to instruct on a lesser included offense
• the search warrant was valid and the evidence obtained was admissible
• the court did not err in restricting defense counsel's closing argument
• there are no cumulative errors affecting the fairness of the trial

F-2006-191

Oct. 10, 2007

Anthony Marnette Hurst

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE:

Anthony Marnette Hurst was tried by jury and convicted of Lewd Molestation in violation of 21 O.S.Supp.2003, § 1123, in the District Court of Comanche County, Case No. CF-2004-474. In accordance with the jury’s recommendation, the Honorable Keith B. Aycock sentenced Hurst to thirteen (13) years imprisonment. Hurst appeals from this conviction and sentence. Hurst raises four propositions of error in support of his appeal:

I. The trial court failed to properly instruct the jury thereby denying Hurst a fair trial;
II. The trial court failed to suppress certain evidence which was illegally obtained by law enforcement in violation of Hurst’s Fourth Amendment rights;
III. The trial court committed error in restricting Hurst’s attorney from commenting on certain impeachment evidence in his closing argument before the jury; and
IV. The accumulation of error deprived Hurst of a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 2, § 7 of the Oklahoma Constitution.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we find that Hurst’s sentence must be reversed and the case remanded for resentencing.

We find in Proposition I that Hurst is entitled to the benefit of our decision in Anderson v. State, requiring instruction on the 85% Rule where it applies. Hurst faced a potential sentence of one to twenty years, and this was his first offense. His request for an 85% Rule instruction was denied, and jurors asked for guidance in sentencing. Under these circumstances, this Court will not speculate about the sentence a properly instructed jury might impose, but remands the case for resentencing with a properly instructed jury. We further find in Proposition I that the trial court did not err in refusing to give an instruction on eyewitness identification. We also find in Proposition I that the trial court did not err in refusing to instruct the jurors on the provisions of 21 O.S.2001, § 1040.13a as a lesser included offense.

We find in Proposition II that the search warrant comported with statutory requirements, the affidavit supporting the warrant was sufficient to support a finding of probable cause, and the record does not support Hurst’s claim that the search occurred before the warrant was executed or served.

We find in Proposition III that the trial court did not err in sustaining the State’s objection when defense counsel made a misstatement of fact in argument which would be potentially misleading to the jury, and we further find this ruling did not impede Hurst’s ability to impeach the victim.

We find in Proposition IV that, as there is no error, there is no cumulative error.

Decision
The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is REVERSED and the case is REMANDED for resentencing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 2006 OK CR 6, 130 P.3d 273.
2. Carter v. State, 2006 OK CR 42, IT 4, 147 P.2d 243, 244.
3. Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, 1036.
4. 21 O.S.2001, § 1123(A).
5. 21 O.S.2001, § 1040.13a.
6. 22 O.S.2001, §§ 1221, 1225(A).
7. Wagner v. State, 72 Okla.Cr. 393, 117 P.2d 162, 167-68.
8. 22 O.S.2001, § 1223.
9. Browning v. State, 2006 OK CR 8, 134 P.3d 816, 826.
10. Jones v. State, 2006 OK CR 5, 128 P.3d 521, 536.
11. Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2003) - Lewd Molestation
• Okla. Stat. tit. 21 § 1040.13a (2001) - Sexual Conduct with Minor
• Okla. Stat. tit. 22 § 1221 (2001) - Search and Seizure Requirements
• Okla. Stat. tit. 22 § 1225 (2001) - Warrant Execution
• Okla. Stat. tit. 22 § 1226 (2001) - Warrants Format
• Okla. Stat. tit. 22 § 1223 (2001) - Affidavit Requirements

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:

• Anderson v. State, 2006 OK CR 6, 130 P.3d 273
• Carter v. State, 2006 OK CR 42, 147 P.2d 243
• Langley v. State, 1991 OK CR 66, 813 P.2d 526
• Shrum v. State, 1999 OK CR 41, 991 P.2d 1032
• Wagner v. State, 72 Okla.Cr. 393, 117 P.2d 162
• Browning v. State, 2006 OK CR 8, 134 P.3d 816
• Jones v. State, 2006 OK CR 5, 128 P.3d 521
• Alverson v. State, 1999 OK CR 21, 983 P.2d 498