Samson Michael Mesfun v The State Of Oklahoma

F-2016-696

Filed: Sep. 21, 2017

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Samson Michael Mesfun appealed his conviction for several crimes including Driving Under the Influence and Driving Without a License. His conviction and sentence included ten years in prison for the DUI, along with additional jail time and fines for the other offenses. Judge James M. Caputo presided over the case. The court found that there were mistakes made in the trial. They agreed that the jury was given the wrong information about the punishment for one of the charges, Transporting an Open Container of Liquor. Because of this, they changed the jail time for that charge to six months. Mesfun raised concerns about how the trial was handled, saying that the prosecutor acted unfairly and that his own lawyer did not help him enough. However, the court decided these complaints did not show enough proof of problems that would change the outcome of the trial. In summary, the court changed the sentence for one charge but kept the other parts of the conviction the same. In this case, there were no major errors found that would require a new trial. Judge Hudson, Judge Lewis, and Judge Lumpkin all agreed with this decision, so there was no dissent.

Decision

The sentence on Count 3, Transporting an Open Container of Liquor, is MODIFIED to six months in the county jail and a fine of $500.00. In all other respects, the Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a plain error when the jury was incorrectly instructed as to the applicable range of punishment for Count 3, Transporting an Open Container?
• Did several instances of prosecutorial misconduct deprive Appellant of a fair trial in violation of the Fourteenth Amendment to the United States Constitution and the Oklahoma Constitution?
• Was Appellant deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to object to instances of prosecutorial misconduct?

Findings

• the court erred in instructing the jury on the punishment range for Count 3
• the evidence was sufficient; no prosecutorial misconduct occurred
• the court found no ineffective assistance of counsel

F-2016-696

Sep. 21, 2017

Samson Michael Mesfun

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

PER CURIAM:

Appellant, Samson Michael Mesfun, was convicted by a jury in Tulsa County District Court, Case No. CF-2014-5994, of the following crimes:
Count 1 Driving Under the Influence of Alcohol, Subsequent Offense (47 O.S.Supp.2013, § 11-902(A)(2))
Count 3 Transporting an Open Container of Liquor (37 O.S.Supp.2014, § 537(A)(7))
Count 4 Driving Without a License (47 O.S.2011, § 6-112)
Count 5 Driving Left of Center (47 O.S.2011, § 11-306)¹

On July 14, 2016, the Honorable James M. Caputo, District Judge, sentenced him in accordance with the jury’s recommendation as follows:
Count 1 Ten years imprisonment and a $5000.00 fine
Count 3 One year in the county jail and a $500.00 fine
Count 4 Ten days in the county jail and a $500.00 fine
Count 5 Ten days in the county jail and a $500.00 fine

The sentences were ordered to be served consecutively. Mesfun raises three propositions of error in support of his appeal:

PROPOSITION I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN THE JURY WAS INCORRECTLY INSTRUCTED AS TO THE APPLICABLE RANGE OF PUNISHMENT FOR COUNT 3, TRANSPORTING AN OPEN CONTAINER.

¹ The jury acquitted Appellant of Count 2, Possession of Marijuana (Subsequent Offense).

PROPOSITION II. SEVERAL INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE OKLAHOMA CONSTITUTION.

PROPOSITION III. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO INSTANCES OF PROSECUTORIAL MISCONDUCT.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we modify the sentence on Count 3 and affirm in all other respects. As to Proposition I, Appellant contends, and the State concedes, that the jury was erroneously instructed on the punishment range for Count 3, Transporting an Open Container of Liquor. We therefore MODIFY the sentence on Count 3 to six months in the county jail and a $500.00 fine. 37 O.S.2011, § 566(A); McIntosh v. State, 2010 OK CR 17, II 9-10, 237 P.3d 800, 803.

As to Proposition II, none of the prosecutor’s comments that Appellant complains of on appeal were objected to below, so our review is for plain error. Plain error is defined as an actual error, which is plain or obvious, and which affects the defendant’s substantial rights. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. We will only grant relief if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings, or otherwise represents a miscarriage of justice. Id. The prosecutor’s cross-examination of Appellant may have been pointed at times, but it was not demeaning or unfair. Cross-examination is meant to test a witness’s veracity in an adversarial setting. See Malone v. State, 2007 OK CR 34, IT 44, 168 P.3d 185, 203-04 (while witnesses should be treated with respect, [t]his does not mean that a testifying defendant must be treated with kid gloves). The prosecutor’s comments, in closing argument, on Appellant’s history of drug- and alcohol-related offenses were not improper. That information had been properly admitted into evidence, and Appellant had discussed his criminal history in his direct examination. The prosecutor’s comments were fair inferences from this evidence.² There is no error, plain or otherwise, here. Proposition II is denied.

In Proposition III, Appellant claims his trial counsel did not render assistance compatible with the Sixth Amendment guarantee of reasonably effective counsel. We will only grant relief if Appellant demonstrates (1) that counsel made professionally unreasonable decisions, and (2) that those decisions caused prejudice, undermining confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687, 698, 104 S.Ct. 2052, 2064, 2070, 80 L.Ed.2d 674 (1984); Bland v. State, 2000 OK CR 11, I 112, 4 P.3d 702, 730-31. A lack of demonstrable prejudice from counsel’s conduct is fatal to an ineffective-counsel claim. Malone v. State, 2013 OK CR 1, IT 16, 293 P.3d 198, 207. Appellant’s first complaint (counsel’s failure to correct the punishment instruction on Count 3) is moot since we have already granted relief on the related substantive claim in Proposition I.³ Because we have found nothing improper in the prosecutor’s comments and cross-examination, see Proposition II, counsel was not deficient for failing to object, and Appellant cannot demonstrate a reasonable probability that the outcome would have been different if he had. Sanchez v. State, 2009 OK CR 31, I 99, 223 P.3d 980, 1012. Proposition III is therefore denied.

DECISION

The sentence on Count 3, Transporting an Open Container of Liquor, is MODIFIED to six months in the county jail and a fine of $500.00. In all other respects, the Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL
GLENN MIRANDO
PUBLIC DEFENDER’S OFFICE
423 S. BOULDER AVE., STE. 300
TULSA, OK 74103-3805
COUNSEL FOR DEFENDANT

ATTORNEYS ON APPEAL
NICOLE DAWN HERRON
1776 SOUTH UTICA AVENUE
TULSA, OK 74104
COUNSEL FOR APPELLANT

JAMES PFEFFER
ASSISTANT DISTRICT ATTORNEY
TULSA COUNTY
500 S. DENVER, STE. 900
TULSA, OK 74103
COUNSEL FOR THE STATE

MIKE HUNTER
ATTORNEY GENERAL OF OKLAHOMA
313 NE 21 ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR APPELLEE

PER CURIAM OPINION:
LUMPKIN, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
HUDSON, J.: CONCUR

Click Here To Download PDF

Footnotes:

1. ¹ The jury acquitted Appellant of Count 2, Possession of Marijuana (Subsequent Offense).
2. ² The State was required to prove not just that Appellant had prior convictions, but that he had certain types of prior convictions, in order to enhance the sentences on Count 1 (Driving Under the Influence of Intoxicants - Subsequent Offense) and Count 2 (Possession of Marijuana - Subsequent Offense, on which the jury ultimately acquitted).
3. ³ Although the title of Proposition III does not mention this claim, it is raised in Appellant's argument.

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 (2013) - Driving Under the Influence of Alcohol, Subsequent Offense
• Okla. Stat. tit. 37 § 537 (2014) - Transporting an Open Container of Liquor
• Okla. Stat. tit. 47 § 6-112 (2011) - Driving Without a License
• Okla. Stat. tit. 47 § 11-306 (2011) - Driving Left of Center
• Okla. Stat. tit. 37 § 566 (2011) - Open Container

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:

• McIntosh v. State, 2010 OK CR 17, II 9-10, 237 P.3d 800, 803
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Malone v. State, 2007 OK CR 34, IT 44, 168 P.3d 185, 203-04
• Strickland v. Washington, 466 U.S. 668, 687, 698, 104 S.Ct. 2052, 2064, 2070, 80 L.Ed.2d 674 (1984)
• Bland v. State, 2000 OK CR 11, I 112, 4 P.3d 702, 730-31
• Malone v. State, 2013 OK CR 1, IT 16, 293 P.3d 198, 207
• Sanchez v. State, 2009 OK CR 31, I 99, 223 P.3d 980, 1012