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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA GARY JULIAN GALLARDO, JR., ) ) NOT FOR PUBLICATION ) Case No. F-2018-339 Appellant, ) FILED V. ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA STATE OF OKLAHOMA ) MAY 16 2019 ) Appellee. JOHN D. HADDEN. CLERK SUMMARY OPINION LUMPKIN, JUDGE: Appellant Gary Julian Gallardo, Jr., was tried by jury and convicted of Trafficking in Illegal Drugs (Methamphetamine) (63 O.S.2011, § 2-415) (Count I) and Conspiracy to Commit Trafficking (21 O.S.2011, § 421) (Count II), both counts After Former Conviction of Two or More Felonies, in the District Court of Jackson County, Case No. CF-2016-158. The jury recommended sentences of forty (40) years imprisonment for each count. The trial court sentenced 1 accordingly, ordering the sentences to run consecutively. 1 It is from this judgment and sentence that Appellant appeals. Appellant raises the following propositions of error in support of his appeal: I. The court lacked jurisdiction to try Appellant in Jackson County. II. The evidence was insufficient to support the crime of Trafficking. III. Appellant did not receive a fair trial because of the admission of highly prejudicial other crime evidence. IV. Prosecutorial misconduct existed because the State’s witnesses presented misleading evidence about deals they had made to testify against Appellant. V. The sentences were excessive. VI. Cumulative error deprived Appellant of a fair trial. After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, 1 Appellant will be required to serve eighty-five percent (85%) of his sentence in Count I before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. 2 and briefs of the parties, we find that under the law and the evidence no relief is warranted. In Proposition I, Appellant contends the trial court lacked jurisdiction to try him in Jackson County for the conspiracy alleged in Count II as the required “overt act” occurred in Payne County at the Cimarron Correctional Facility. The State responds that Appellant’s argument is actually one of improper venue, not lack of jurisdiction, and as a challenge to the venue of the prosecution has not been raised previously, it is waived for our review on appeal. Venue and jurisdiction are not the same. There is a difference between lack of jurisdiction, which would prevent a court in Oklahoma from trying someone for a crime committed outside the state; and venue, which determines which of many courts having jurisdiction is the proper forum for a trial. Carter U. State, 1996 OK CR 34, I 13, 922 P.2d 634, 637-638. Jurisdiction is conferred on the trial court by the commission of a public offense where venue properly lies in that trial court. Parker v. State, 1996 OK CR 19, 9 21, 917 P.2d 980, 985 citing 22 O.S. 1991, §§ 121-136. Thus, a trial court’s jurisdiction is triggered by the filing of an Information alleging the commission of a public offense with 3 appropriate venue. Id. This Court has held that if venue is not proper, then the trial court does not have subject matter jurisdiction. Cummings v. State, 1998 OK CR 45, I 26, 968 P.2d 821, 831-832. Title 22 O.S.2011, § 124 provides: “[w]hen a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof, constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.” See also Hawkins v. State, 1994 OK CR 83, I 13, 891 P.2d 586, 593. Venue may be waived, but jurisdiction may not. Omalza v. State, 1995 OK CR 80, I 7, 911 P.2d 286, 295. “[U[nless the question of proper venue is put in issue during the trial, this Court will not address it upon appeal.” Smith v. State, 1976 OK CR 221, I 15, 554 P.2d 851, 854. The issue here is not jurisdiction but venue – in which Oklahoma county is prosecution proper. As this issue was not raised before the trial court, its review on appeal is waived. In Proposition II, Appellant argues the evidence was insufficient to support his conviction in Count I for Trafficking. Specifically, he concedes the crime of trafficking was proven by the State’s evidence, but argues that his participation in the crime was not proven. 4 We review Appellant’s challenge to the sufficiency of the evidence supporting his conviction in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, I 11, 424 P.3d 677, 682. In reviewing sufficiency of the evidence claims, this Court does not reweigh conflicting evidence or second-guess the decision of the fact-finder; we accept all reasonable inferences and credibility choices that tend to support the verdict. Mitchell, 2018 OK CR 24, I 11, 424 P.3d at 682. The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts. Rutan v. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849. In light of his admission that the crime of trafficking was proven, our focus here will be on the identification of Appellant as a participant in the crime. Appellant’s repeated references to the testimony given at the Preliminary Hearing play no role in our appellate review of the sufficiency of the evidence as we are concerned only with the evidence presented to the jury. See Baird U. State, 2017 OK CR 16, I 33, n. 7, , 400 P.3d 875, 888 n. 7. 5 Looking to the record of the evidence before the jury in this case, we find the evidence sufficiently proved that Appellant, although incarcerated at the time, arranged and monitored the drug transaction between Mr. Benitez, Ms. Reyes, and Ms. Ballou on May 21, 2015.2 We also find the evidence sufficient to prove beyond a reasonable doubt Appellant had constructive possession of the methamphetamine despite his physical distance from the drug transaction. See Bivens U. State, 2018 OK CR 33, 8-9, 431 P.3d 985, 992. Reviewing the evidence in the light most favorable to the State, we find any rational trier of fact could have found Appellant guilty of Trafficking beyond a reasonable doubt. This proposition is denied. In Proposition III, we find Appellant was not denied a fair trial by evidence of other crimes. The trial court did not abuse its discretion in admitting evidence that Appellant possessed a cell 2 Appellant’s one paragraph argument that if their testimony was true, the involvement of Benitez, Reyes, and Ballou would make them all accomplices/co- conspirators and would require corroboration of their testimony is not properly before the Court. This argument is not developed or supported with any citation to the record. Appellant’s failure to comply with Rule 3.5(A)(5), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) waives review of the error on appeal. See also Logsdon v. State, 2010 OK CR 7, I 41, 231 P.3d 1156, 1169; Stouffer v. State, 2006 OK CR 46, IT 126, 147 P.3d 245, 270. 6 phone while incarcerated, approximately four months before the charged offense. See Neloms v. State, 2012 OK CR 7, I 12, 274 P.3d 161, 164 (appellate review is for abuse of discretion when contemporaneous objection was raised at trial). The evidence was included in the State’s Notice of Intent to Offer Evidence of Other Crimes and was relevant to prove that Appellant had a cell phone in his possession while incarcerated in a penal institution and therefore had the opportunity, intent, and ability to speak with his co-conspirators during the commission of the crime on trial. See Eizember V. State, 2007 OK CR 29, I 75, 164 P.3d 208, 230. See also 12 O.S.2011, § 2404(B). In light of the remainder of the evidence and the jury instructions, the probative value of the evidence of Appellant’s possession of the cell phone was not substantially outweighed by the danger of unfair prejudice. See 12 O.S.2011, § 2403. Appellant’s complaint about State’s Exhibit 12, the Inmate Profile (Misconduct) Screening Form setting forth the misconduct listing for the possession of the cell phone also does not warrant relief. The document was redacted at Appellant’s request and received no objection at its admission. We review only for plain error under the 7 standard set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690, where we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his substantial rights. See Daniels U. State, 2016 OK CR 2, I 3, 369 P.3d 381, 383. 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. Appellant offers nothing to support his claim of harm by the appearance of the document. Any possible harm was invited as Appellant agreed to the redaction. Cuestra-Rodriguez v. State, 2010 OK CR 23, IT 73, 241 P.3d 214, 237 (“error invited by defense counsel cannot serve as basis for reversal because defendant cannot invite error and then seek to profit from it”). Reviewing the remaining allegations of other crimes evidence for plain error only, we find evidence of Appellant’s threats to Reyes and Ballou and his operation of a continuing criminal enterprise were not other crimes evidence, but properly admitted res gestae evidence of the charged offenses. The evidence helped explain to the jury the facts and circumstances surrounding and comprising the offenses on trial 8 and emerged incidentally as the witnesses described their involvement in the offenses. See Baird, 2017 OK CR 16, I 38, 400 P.3d at 885. Testimony that Appellant attempted to convince Ballou to testify falsely against him was also not other crimes evidence, but an admission by conduct properly admitted for the jury’s consideration on Appellant’s consciousness of guilt. See Anderson v. State, 1999 OK CR 44, I 14, 992 P.2d 409, 416. In Proposition IV, we have reviewed Appellant’s claims of prosecutorial misconduct for plain error under the standard set forth above and find none. See Sanders U. State, 2015 OK CR 11, I 23, 358 P.3d 280, 286. On claims of prosecutorial misconduct, relief will be granted only where the prosecutor committed misconduct that SO infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon. Id. We evaluate alleged prosecutorial 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. Id. We have long allowed counsel for the parties a wide range of discussion and illustration in closing argument. Id. Counsel enjoy a right to discuss 9 fully from their standpoint the evidence and the inferences and deductions arising from it. Id. We will reverse the judgment or modify the sentence only where grossly improper and unwarranted argument affects a defendant’s rights. Id. The record does not support Appellant’s claim that the prosecution withheld evidence relating to whether agreements were reached with Benitez, Reyes, or Ballou for leniency in exchange for their testimony or any other information affecting the credibility of the three witnesses. Appellant’s reliance on Wright v. State, 2001 OK CR 19, T 22, 30 P.3d 1148, 1152 is misplaced. There is no evidence in the record showing the witnesses testified falsely when they denied having any agreements with the State for leniency in exchange for the testimony against Appellant nor is there any evidence the prosecution was aware of any agreements to that effect and did not inform the court. The three witnesses were thoroughly cross-examined by defense counsel regarding why they were testifying against Appellant, and the jury was able to adequately evaluate their testimony. See Howard U. State, 1987 OK CR 116, T 9, 738 P.2d 543, 545-546 citing Runnels v. State, 1977 OK CR 932, 562 P.2d 932. 10 Further, we find that in his closing arguments, the prosecutor did not improperly bolster the credibility of the three witnesses nor invoke societal alarm. See Warner v. State, 2006 OK CR 40, IT 24, 144 P.3d 838, 860, overruled on other grounds, Taylor V State 2018 OK CR 6, 419 P.3d 265, (definition of vouching/bolstering); McElmurry V. State, 2002 OK CR 40, II 151, 60 P.3d 4, 334 (definition of societal alarm). The prosecutor’s arguments were based on the evidence and well within the wide range of discussion allowed in closing argument. See Sanchez U. State, 2009 OK CR 31, I 71, 223 P.3d 980, 1004. Having thoroughly reviewed Appellant’s claims of prosecutorial misconduct, we find the prosecutor’s conduct not SO improper or prejudicial SO as to have infected the trial SO that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon. Finding no error and thus no plain error, this proposition is denied. In Proposition V, we find Appellant’s sentence was not excessive. The question of excessiveness of punishment must be determined by a study of all the facts and circumstances of each case. Rackley v. State, 1991 OK CR 70, I 7, 814 P.2d 1048, 1050. Where the punishment is within the statutory limits the sentence will not be 11 disturbed unless under all the facts and circumstances of the case it is SO excessive as to shock the conscience of the Court. Pullen v. State, 2016 OK CR 18, II 16, 387 P.3d 922, 928. Regarding consecutive versus concurrent sentences, there is no absolute constitutional or statutory right to receive concurrent sentences. 22 O.S.2011, § 976. In fact, sentences are to run consecutively unless the trial judge, in his or her discretion, rules otherwise. Id. See also Neloms, 2012 OK CR 7, “I 35, 274 P.3d at 170. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Id. With three prior drug related convictions, Appellant’s forty (40) year sentence in each count was well within the statutory limits. The trial court’s decision to run the sentences consecutively was not an abuse of discretion based upon the strong evidence of guilt. See Logsdon, 2010 OK CR 7, II 22, 231 P.3d at 1166. We therefore deny Appellant’s request to modify his sentences. In Proposition VI, Appellant argues the accumulation of errors denied him a fair trial. This Court has repeatedly held that a cumulative error argument has no merit when this Court fails to 12 sustain any of the other errors raised by Appellant. Lee v. State, 2018 OK CR 14, I 20, 422 P.3d 782, 787. However, when there have been numerous irregularities during the course of a trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Id. Any errors found in this case did not require relief, and when considered cumulatively, do not require reversal or modification of the sentence. Accordingly, this appeal is denied. DECISION The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF JACKSON COUNTY THE HONORABLE BRAD BENSON, ASSOCIATE DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL CORRY KENDALL LISBETH L. MCCARTY 216 W. COMMERCE OKLA INDIGENT DEFENSE SYSTEM ALTUS, OK 73521 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT 13 KEN DARBY MIKE HUNTER DISTRICT ATTORNEY ATTY GENERAL OF OKLAHOMA SOMMER ROBBINS SHERI M. JOHNSON ASST. DISTRICT ATTORNEY ASST. ATTORNEY GENERAL 101 N. MAIN, RM. 104 313 N.E. 21ST ST. ALTUS, OK 73521 OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur RA 14

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