Curtis Dale Gibson v The State Of Oklahoma
F-2006-905
Filed: Apr. 10, 2008
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Curtis Dale Gibson appealed his conviction for Rape, First Degree, After Former Conviction of Two Felonies. His conviction was affirmed, but his sentence of thirty years in prison was vacated and he was sent back for a new sentencing. Judge Lumpkin disagreed with the decision to resend and thought the original sentence should stand.
Decision
The Judgment of Conviction of the District Court is AFFIRMED. The Sentence is VACATED and the case is REMANDED to the District Court for resentencing. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.
Issues
- was there a denial of a fair trial by the admission of hearsay statements of an alleged victim who was not called to testify?
- did prosecutorial misconduct result in a denial of a fair trial?
- should the jury have received an instruction on the statutory 85% limit on parole eligibility?
- did the introduction of evidence regarding a prior suspended sentence for another rape deprive him of a fair sentence?
- did cumulative error deprive him of a fair trial?
Findings
- the court erred regarding the admission of hearsay statements
- the prosecutor's closing comments did not rise to reversible plain error
- the trial court's failure to instruct the jury on the statutory 85% limit on parole eligibility was plain error
- the claim regarding the introduction of prior suspended sentence evidence was rendered moot
- the cumulative error argument was denied
F-2006-905
Apr. 10, 2008
Curtis Dale Gibson
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
A. JOHNSON, JUDGE: Curtis Dale Gibson, Appellant, was tried by jury in the District Court of Jackson County, Case No. CF-2005-111, and found guilty of Rape, First Degree, After Former Conviction of Two Felonies, in violation of 21 O.S.2001, § 1114(A)(1). The jury fixed punishment at thirty years imprisonment. The Honorable Clark E. Huey, who presided at trial, sentenced Gibson accordingly. From this judgment and sentence Gibson appeals, raising the following issues: (1) whether he was denied a fair trial by the admission of hearsay statements of an alleged victim who was not called to testify and, therefore, he had no opportunity to confront and examine; (2) whether he was denied a fair trial through prosecutorial misconduct; (3) whether the jury should have received an instruction on the statutory 85% limit on parole eligibility; (4) whether the introduction of evidence that he had previously received a suspended sentence for another rape deprived him of a fair sentence; and (5) whether cumulative error deprived him of a fair trial. For the reasons set forth below, we affirm the judgment of conviction, but vacate the sentence and remand for resentencing.
1. The statements made by the victim’s sister that were disclosed in the testimony of the D.H.S. Child Protective Services investigator and the Altus Police Department detective alleging she (the sister) had also been raped by Gibson were not hearsay. Their admission as evidence was neither error nor plain error. Bland v. State, 2000 OK CR 11, ¶ 65, 4 P.3d 702, 721.
2. None of the prosecutor’s closing comments rises to the level of reversible plain error. Hogan v. State, 2006 OK CR 19, ¶ 38, 87-88, 139 P.3d 907, 923, 935; Young v. State, 2000 OK CR 17, ¶ 49, 12 P.3d 20, 37; Fitchen v. State, 1987 OK CR 109, ¶ 3, 738 P.2d 177, 179.
3. The trial court’s failure to instruct the jury on the statutory 85% limit on parole eligibility was plain error. Anderson v. State, 2006 OK CR 6, ¶ 25, 130 P.3d 273, 283; Carter v. State, 2006 OK CR 42, ¶ 5, 47 P.3d 243, 244; Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. The sentence must be vacated and the case remanded for resentencing.
4. Gibson’s claim of sentencing error, based on complaints that the State improperly introduced evidence and argument concerning a prior suspended sentence, is a claim that is rendered moot by our disposition of his 85% claim above.
5. Because we find no accumulation of error with regard to the guilt phase of Gibson’s trial, and because we remand for resentencing on other grounds, Gibson’s cumulative error argument is denied. Smith v. State, 2007 OK CR 16, ¶ 81, 157 P.3d 1155, 1179.
DECISION
The Judgment of Conviction of the District Court is AFFIRMED. The Sentence is VACATED and the case is REMANDED to the District Court for resentencing. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.
Footnotes:
- Bland v. State, 2000 OK CR 11, ¶ 65, 4 P.3d 702, 721.
- Hogan v. State, 2006 OK CR 19, ¶ 38, 87-88, 139 P.3d 907, 923, 935.
- Young v. State, 2000 OK CR 17, ¶ 49, 12 P.3d 20, 37.
- Fitchen v. State, 1987 OK CR 109, ¶ 3, 738 P.2d 177, 179.
- Anderson v. State, 2006 OK CR 6, ¶ 25, 130 P.3d 273, 283.
- Carter v. State, 2006 OK CR 42, ¶ 5, 47 P.3d 243, 244.
- Smith v. State, 2007 OK CR 16, ¶ 81, 157 P.3d 1155, 1179.
- 20 O.S.2001, § 3001.1.
- Carter v. State, 2006 OK CR 42, 147 P.3d 243.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 1114(A)(1) - Rape, First Degree
- Okla. Stat. tit. 21 § 701.8 - Sentencing
- Okla. Stat. tit. 20 § 3001.1 - Sentencing
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:
- Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
- Bland v. State, 2000 OK CR 11, If 65, 4 P.3d 702, 721
- Hogan v. State, 2006 OK CR 19, 11 38, 87-88, 139 P.3d 907, 923,935
- Young v. State, 2000 OK CR 17, T 49, 12 P.3d 20, 37
- Fitchen v. State, 1987 OK CR 109, I 3, 738 P.2d 177, 179
- Anderson v. State, 2006 OK CR 6, "I 25, 130 P.3d 273, 283
- Carter v. State, 2006 OK CR 42, 1 5, 47 P.3d 243, 244
- Smith v. State, 2007 OK CR 16, 1 81, 157 P.3d 1155, 1179