Adam Russell Hemphill, Sr. v The State Of Oklahoma

F-2018-1046

Filed: Jan. 16, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Adam Russell Hemphill, Sr. appealed his conviction for Child Neglect. His conviction and sentence were for twenty-five years in prison. Judge Hudson dissented.

Decision

The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there prosecutorial misconduct that deprived him of a fair trial?
• did the trial court abuse its discretion by admitting evidence of his prior drug use?

Findings

• the court did not err regarding prosecutorial misconduct, as it did not deprive Hemphill of a fair trial
• the trial court did not abuse its discretion by admitting evidence of Hemphill's prior drug use

F-2018-1046

Jan. 16, 2020

Adam Russell Hemphill, Sr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant Adam Russell Hemphill, Sr. was tried and convicted by a jury in the District Court of Tulsa County, Case No. CF-2017-3841, for Child Neglect, in violation of 21 O.S.Supp.2014, § 843.5(C).¹ The jury set punishment at twenty-five years imprisonment. The Honorable William J. Musseman, District Judge, presided over Hemphill’s jury trial and sentenced him in accordance with the jury’s verdict. Hemphill appeals raising the following issues: (1) whether prosecutorial misconduct deprived him of a fair trial; and (2) whether the trial court abused its discretion by admitting evidence of his prior drug use. We find relief is not required and affirm the Judgment and Sentence of the district court.

1. Hemphill complains that prosecutorial misconduct during closing argument deprived him of his right to a fair trial. Only one comment was met with objection at trial. Those comments not objected to will be reviewed for plain error. Harney v. State, 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. To be entitled to relief for plain error, an appellant must show: (1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. [W]e evaluate the alleged misconduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. Hanson v. State, 2009 OK CR 13, ¶ 18, 206 P.3d 1020, 1028. Both sides have wide latitude to discuss the evidence and reasonable inferences therefrom. Harmon v. State, 2011 OK CR 6, ¶ 81, 248 P.3d 918, 943. Relief is only granted where the prosecutor’s flagrant misconduct so infected the defendant’s trial that it was rendered fundamentally unfair. Jones v. State, 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998. It is the rare instance when a prosecutor’s misconduct during closing argument will be found so egregiously detrimental to a defendant’s right to a fair trial that reversal is required. See Pryor v. State, 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722.

First, Hemphill complains that misconduct occurred when the prosecutor elicited testimony from him on cross-examination about his prior marijuana use. Defense counsel objected and the objection was overruled. Hemphill argues on appeal that this line of questioning elicited irrelevant and prejudicial testimony. The State contends that evidence Hemphill had purchased marijuana was relevant to refute his claim that he was financially unable to provide for his family. However, evidence that Hemphill purchased and used marijuana at some unspecified time in his past was not relevant to his current financial situation. While this line of questioning was not relevant, neither was it so egregiously detrimental to his right to a fair trial that relief is required.

Next, Hemphill complains that misconduct occurred because the prosecutor asked the jury to consider crimes not charged when assessing punishment. The argument at issue was not met with objection below and is reviewed for plain error. The record refutes Hemphill’s claim. The prosecutor was arguing the evidence presented at trial, and this argument was not error, plain or otherwise. This claim is denied.

2. Hemphill complains that the evidence elicited over objection during cross-examination, that he purchased and used marijuana at some unspecified time in his past, was irrelevant and inadmissible evidence of bad acts. He asserts the trial court erred by allowing its introduction into evidence. The basic law is well established – when one is put on trial, one is to be convicted – if at all – by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded. Lott v. State, 2004 OK CR 27, ¶ 40, 98 P.3d 318, 334. See also Miller v. State, 2013 OK CR 11, ¶ 89, 313 P.3d 934, 966 (Any criminal conviction obtained through a trial must be based upon evidence establishing that the defendant committed the charged crime(s), rather than evidence of other offenses.). While evidence of other crimes or bad acts is not admissible to prove the character of a person in order to show action in conformity therewith, Oklahoma law specifically provides that evidence that a defendant has committed other crimes or bad acts may be admissible at trial to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 12 O.S.2011, § 2404(B). Evidence of Hemphill’s past marijuana use was irrelevant evidence of a bad act not admissible under any exception listed in Section 2404(B), and its introduction was error. However, in light of the substantial evidence of Hemphill’s guilt, the introduction of the irrelevant evidence was clearly harmless. Relief is not required.

DECISION
The Judgment and Sentence of the district court is AFFIRMED

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE WILLIAM J. MUSSEMAN, DISTRICT JUDGE

APPEARANCES AT TRIAL
RICHARD KOLLER
ASSISTANT PUBLIC DEFENDER
423 S. BOULDER AVE., SUITE 300
TULSA, OK 74103
COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL
NICOLE DAWN HERRON
ASSISTANT PUBLIC DEFENDER
423 S. BOULDER AVE., SUITE 300
TULSA, OK 74103
COUNSEL FOR APPELLANT

KATIE KOLJACK
MIKE HUNTER
ASST. DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
500 SOUTH DENVER, SUITE 900
TULSA, OK 74103
COUNSEL FOR STATE

TESSA L. HENRY
ASSISTANT ATTORNEY GENERAL
313 N.E. 21 ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR APPELLEE

OPINION BY: ROWLAND, J.
LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur
LUMPKIN, J.: Concur
HUDSON, J.: Concur in Results

HUDSON, J., CONCUR IN RESULTS
I concur in the results of today’s decision denying relief. I respectfully disagree with the majority, however, that the prosecutor’s cross-examination concerning Appellant’s marijuana use was error. The admission of this testimony rests within the trial court’s broad discretion. Moore v. State, 2019 OK CR 12, ¶ 14, 443 P.3d 579, 583. The trial court did not abuse its discretion by overruling the defense objection to the prosecutor’s questioning about Appellant’s marijuana use and, more specifically, the fact Appellant had purchased the drug in the past. See id. (An abuse of discretion is a conclusion or judgment that is clearly against the logic and effect of the facts presented.). Taken in context, this testimony was relevant to refute Appellant’s claim that poverty prevented him from properly caring for his children. This was not improper other crimes evidence. The prosecutor’s elicitation of this testimony was thus not prosecutorial misconduct. I would deny relief on these grounds.

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Footnotes:

1. Under 21 O.S.Supp.2014, § 13.1, Hemphill must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.
2. Harney v. State, 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007.
3. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.
4. Jones v. State, 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998.
5. Pryor v. State, 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722.
6. Lott v. State, 2004 OK CR 27, ¶ 40, 98 P.3d 318, 334.
7. Miller v. State, 2013 OK CR 11, ¶ 89, 313 P.3d 934, 966.
8. 12 O.S.2011, § 2404(B).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(C) - Child Neglect
• Okla. Stat. tit. 21 § 13.1 - Parole Consideration
• Okla. Stat. tit. 12 § 2404(B) - Admissibility of Other Crimes

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:

• Harney v. State, 2011 OK CR 10, I 23, 256 P.3d 1002, 1007.
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
• Hanson v. State, 2009 OK CR 13, I 18, 206 P.3d 1020, 1028.
• Harmon v. State, 2011 OK CR 6, I 81, 248 P.3d 918, 943.
• Jones v. State, 2011 OK CR 13, I 3, 253 P.3d 997, 998.
• Pryor v. State, 2011 OK CR 18, I 4, 254 P.3d 721, 722.
• Lott v. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334.
• Miller v. State, 2013 OK CR 11, I 89, 313 P.3d 934, 966.
• Moore v. State, 2019 OK CR 12, I 14, 443 P.3d 579, 583.