Horace Joe Bigmedicine v The State Of Oklahoma

F-2013-994

Filed: Oct. 1, 2014

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Horace Joe Bigmedicine appealed his conviction for First Degree Burglary. Conviction and sentence of thirty years imprisonment. Judge Paul Woodward presided over the trial. The court found that Bigmedicine was not denied a fair trial due to prosecutorial misconduct and upheld his conviction. However, the order for him to pay $2,000 in restitution was removed because the proper process wasn't followed to determine the victim's financial loss. Judge Lewis, Judge Smith, and Judge Lumpkin all agreed with the result, but Judge Lumpkin only partially concurred.

Decision

The Judgment and Sentence of the district court is AFFIRMED. The district court's restitution order is VACATED, and the case REMANDED on the issue of the victim's loss, for a proper determination in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there prosecutorial misconduct that deprived Bigmedicine of a fair trial?
• did the trial court err by imposing restitution without following the statutory procedures?

Findings

• the court did not err regarding prosecutorial misconduct
• the trial court's order of restitution must be vacated

F-2013-994

Oct. 1, 2014

Horace Joe Bigmedicine

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Horace Joe Bigmedicine was tried by jury in the District Court of Blaine County, Case No. CF-2012-94, and convicted of First Degree Burglary, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 1431. The jury assessed punishment at thirty years imprisonment. The Honorable Paul Woodward, who presided at trial, sentenced Bigmedicine accordingly. From this Judgment and Sentence Bigmedicine appeals, raising the following issues: (1) whether prosecutorial misconduct deprived him of a fair trial; and (2) whether the trial court erred when it imposed restitution of $2,000.00 without following the statutory procedure for doing so. We find reversal is not required and affirm the Judgment and Sentence of the district court. We also find, however, that the order of restitution must be vacated and the case remanded to the district court for a proper determination on the issue of the victim’s loss.

1. Bigmedicine complains prosecutorial misconduct deprived him of his right to a fair trial. This Court will not grant relief based on prosecutorial misconduct unless the State’s argument is so flagrant and that it so infected the defendant’s trial that it was rendered fundamentally unfair. Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230. The prosecutor’s argument was fair comment on the evidence and was not improper. His use of language was well within the bounds of proper advocacy. This Court does not require counsel in such serious cases to address the jury with lifeless and timid recitations void of moral reflection or persuasive power. Sanchez v. State, 2009 OK CR 31, ¶ 75, 223 P.3d 980, 1005. Because there was no actual error, there was no plain error. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Relief is not warranted.

2. Bigmedicine argues that the trial court’s order of restitution must be vacated because the trial court failed to follow the governing statutory procedures. Because Bigmedicine did not object to the manner or amount of the restitution assessment before the trial court he has waived appellate review of the instant challenge for all but plain error. Simpson v. State, 1994 OK CR 40, ¶ 11, 876 P.2d 690, 694. Title 22 O.S.2011, § 991a (A)(1)(a) authorizes a trial court to order a defendant to pay restitution to the victim of a crime for any economic loss the victim has suffered. Economic loss means actual financial detriment suffered by the victim consisting of medical expenses actually incurred, damage to or loss of real and personal property and any other out-of-pocket expenses, including loss of earnings, reasonably incurred as the direct result of the criminal act of the defendant. 22 O.S.2011, § 991f A)(3). Although a defendant may be ordered to pay restitution for economic loss as defined by Section 991f, an order of restitution may only include those losses which are determinable with reasonable certainty. 22 O.S.2011, § 991a(A)(1)(a). A ‘reasonable certainty’ must be more than an approximation, estimate, or guess. Inherent in the definition of reasonable certainty is the requirement of proof of the loss to the victim. Logsdon v. State, 2010 OK CR 7, ¶ 9, 231 P.3d 1156, 1162 (internal citations omitted). The record must reflect a basis for the trial judge’s determination of a victim’s loss or the decision will be deemed arbitrary and found to violate Section 991a. Honeycutt v. State, 1992 OK CR 36, ¶ 33, 834 P.2d 993, 1000. As acknowledged by the State, 22 O.S.2011, § 991f (E) (3) requires the district attorney to provide the court an official request for restitution form, completed and signed by the victim, which includes all invoices, bills, receipts, and other evidence of injury, loss of earnings and out-of-pocket loss. This form shall be filed with any victim impact statement to be included in the judgment and sentence. The victim in this case did not testify to his financial loss during trial or at sentencing, and the record does not reflect that the restitution request form, along with required supporting documentation, was presented to the court. While the court did reference a victim statement at sentencing, the contents of this are not in the record. We cannot conclude on the record before this Court that the restitution amount ordered by the district court was determined with reasonable certainty. We must therefore consider the order of restitution to be arbitrary. This is plain error which requires the restitution order be vacated and the case remanded to the district court for a proper determination on the issue of the victim’s loss.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. The district court’s restitution order is VACATED, and the case REMANDED on the issue of the victim’s loss, for a proper determination in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. Williams v. State, 2008 OK CR 19, I 124, 188 P.3d 208, 230.
2. Sanchez v. State, 2009 OK CR 31, "I 75, 223 P.3d 980, 1005.
3. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
4. Simpson v. State, 1994 OK CR 40, "I 11, 876 P.2d 690, 694.
5. 22 O.S.2011, § 991a (A)(1)(a).
6. 22 O.S.2011, § 991f (A)(3).
7. Logsdon v. State, 2010 OK CR 7, I 9, 231 P.3d 1156, 1162.
8. Honeycutt v. State, 1992 OK CR 36, I 33, 834 P.2d 993, 1000.
9. 22 O.S.2011, § 991f (E)(3).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 (2011) - First Degree Burglary, After Former Conviction of Two or More Felonies
• Okla. Stat. tit. 22 § 991a(A)(1)(a) (2011) - Authorizes restitution for economic loss
• Okla. Stat. tit. 22 § 991f(A)(3) (2011) - Definition of economic loss
• Okla. Stat. tit. 22 § 991a(A)(1)(a) (2011) - Requirement of reasonable certainty for restitution
• Okla. Stat. tit. 22 § 991f(E)(3) (2011) - Requirements for the district attorney regarding restitution form

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:

• Williams v. State, 2008 OK CR 19, I 124, 188 P.3d 208, 230
• Sanchez v. State, 2009 OK CR 31, "I 75, 223 P.3d 980, 1005
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Simpson v. State, 1994 OK CR 40, "I 11, 876 P.2d 690, 694
• Logsdon v. State, 2010 OK CR 7, I 9, 231 P.3d 1156, 1162
• Honeycutt v. State, 1992 OK CR 36, I 33, 834 P.2d 993, 1000