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F-2018-39

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Robert Ephriam Smith v State Of Oklahoma

F-2018-39

Filed: Aug. 15, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Robert Ephriam Smith appealed his conviction for two counts of Child Sexual Abuse. Conviction and sentence: life imprisonment on both counts, to run one after the other. Judge Kuehn dissented. In the case, Smith was found guilty by a jury in Grady County for abusing two children. The jury recommended life sentences for each count, and the judge ordered them to be served one after the other. Smith argued that there were many mistakes made during the trial, including confusing jury instructions, improper evidence being shown, and comments made by the trial judge that could have affected the fairness of the trial. The court reviewed his claims but ultimately decided that no significant mistakes happened that would require a new trial. They found that the jury instructions were correct and that the evidence used against Smith was allowed according to the law. They concluded that there was enough evidence for a strong case against him and that he received a fair trial. Therefore, Smith's conviction and sentence were upheld by the court.

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.

Issues

  • Was there contradictory jury instruction that misled the jury regarding the intent required for child sexual abuse?
  • Did the improper admission of evidence related to legal misconduct prejudice the jury and deny Appellant a fair trial?
  • Did the trial judge's comments endorsing the testimony of the victims invade the province of the jury?
  • Was the admission of the forensic examiner's notes a denial of Appellant's right to a fair trial?
  • Did the admission of testimony regarding prior accusations of more serious sexual abuse prejudice the jury?
  • Was the admission of prejudicial victim impact evidence improper and did it require a new trial?
  • Did the cumulative effect of prosecutorial misconduct deprive Appellant of a fair trial?
  • Was the failure to preserve issues for review due to ineffective assistance of counsel?
  • Did cumulative errors deprive Appellant of a fair trial and reliable verdict and sentence?

Findings

  • the court did not err regarding jury instructions as they accurately stated the applicable law.
  • the court did not err in the admission of evidence concerning Appellant's legal possession of pornography and internet searches.
  • the court's comments to witnesses were erroneous but did not constitute plain error affecting Appellant's substantial rights.
  • the court did not err in admitting the forensic examiner's notes as they corroborated the testimony of the child witnesses.
  • the court did not err in admitting prior allegations of sexual abuse as they were relevant to establish Appellant's propensity.
  • the court did not err in the admission of victim impact testimony as it did not invoke undue sympathy.
  • the court found no prosecutorial misconduct that denied Appellant a fair trial.
  • Appellant failed to demonstrate ineffective assistance of counsel as no errors were found in previous propositions.
  • the cumulative error argument is without merit as no errors were sustained in the trial.

F-2018-39

Aug. 15, 2019

Robert Ephriam Smith

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Robert Ephriam Smith was tried by jury and found guilty of two (2) counts of Child Sexual Abuse (21 O.S.Supp.2014, s 843.5(F)), in the District Court of Grady County, Case No. CF-2016-143. The jury recommended punishment of life imprisonment on both counts. The trial court sentenced 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: 1 Appellant must serve 85% of his sentences before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1.

I. Contradictory instructions left Appellant’s jury confused as to whether it must find the second element, lewd acts, were engaged in with merely the willfully or maliciously general intent set out as the first element of the charged sexual abuse, or with the specific intent to touch the body or private parts in a lewd and lascivious manner, as set out in the elements for the offense of lewd acts that followed.

II. Improper admission of, and instruction upon, entirely legal purported misconduct prejudiced the jury, deprived Appellant of a fundamentally fair trial, and requires reversal for a new trial or favorable modification of the inflated consecutive sentences.

III. The trial judge’s improper comments endorsing the testimony of the complaining witnesses in this case invaded the province of the jury and precluded the possibility of a fundamentally fair trial and determination of sentencing.

IV. Appellant was denied a fundamentally fair trial by the inexplicable admission of the forensic examiner’s notes as a contemporaneous writing that presented a slanted version of the purported AC disclosure.

V. Improper admission of a stale, dismissed accusation of more serious, ongoing sexual abuse prejudiced the jury, deprived Appellant of a fundamentally fair trial and requires a new trial or favorable modification of the inflated sentences.

VI. Admission and argument of prejudicial victim impact evidence experienced by state witnesses who were not victims of the charged crimes, as argued to inflame passions and prejudices in the current case, requires a new trial or favorable modification of the resulting consecutive life sentences.

VII. The cumulative effect of prosecutorial misconduct constituted fundamental error that denied Appellant a fair trial and due process of law.

VIII. Alternatively, any failure to preserve issues for review was the result of the ineffective assistance of counsel.

IX. Cumulative errors deprived Appellant of a fair trial and reliable verdict and sentence.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

In Proposition One, Appellant contends the jury was instructed improperly regarding child sexual abuse. We review this claim for plain error as Appellant made no objection to the jury instructions at trial. Barnes v. State, 2017 OK CR 26, I 22, 408 P.3d 209, 217. Under the plain error test set forth in Simpson U. State, 1994 OK CR 40, II 3, 11, 23 30, 876 P.2d 690, 694-95, 698, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. 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., 1994 OK CR 40, I 30, 876 P.2d at 701. See also Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121; Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395; Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.

Appellant argues the instructions were contradictory with regard to the intent that the jury must find in order to convict him of child sexual abuse. Jury instructions are sufficient where they accurately state the applicable law. Runnels v. State, 2018 OK CR 27, I 19, 426 P.3d 614, 619. Appellant makes no claim that the instructions inaccurately stated the applicable law. The trial court utilized the Oklahoma Uniform Jury Instructions for the charged crimes, which this Court holds must be used if they state the applicable law. Bosse U. State, 2017 OK CR 10, I 61, 400 P.3d 834, 856. Having reviewed the instructions, we find that they were not contradictory and they accurately stated the law. In Fairchild U. State, 1999 OK CR 49, I 35, 998 P.2d 611, 620, this Court found that the terms willfully, maliciously and knowingly when used in the statutes do not connote any specific intent. This Court further found that the term willfully’ was equivalent to ‘knowingly’. Id.

In the context of the child abuse murder statute, this Court held that the use of the term willful with injure does not require a specific intent to injure, but only a general intent to commit the act which causes the injury. Id., 1999 OK CR 49, I 51, 998 P.2d at 622-23. Similarly, sexual abuse of a child is a general intent crime, only requiring the intent to commit the lewd act. Further, while Appellant claims confusion on the part of the jury based upon the complained of instructions, nothing in the record supports this claim. We find no error and no plain error. Proposition I is denied.

In Proposition Two, Appellant argues that the trial court erred when it admitted evidence of his legal possession of adult pornography, internet searches conducted on his cell phone and websites visited on his cell phone. This Court reviews a trial court’s decision to either admit or exclude evidence for an abuse of discretion. Willis U. State, 2017 OK CR 23, I 20, 406 P.3d 30, 35; Marshall v. State, 2010 OK CR 8, I 24, 232 P.3d 467, 474. An abuse of discretion has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented or, stated otherwise, any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Neloms U. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.

Appellant concedes he did not object to the admission of the DVD’s at trial, thereby waiving review of this claim for all but plain error pursuant to Simpson, as set forth above. Reviewing the record, we find that no plain error occurred in the admission of the DVD’s. Title 12 O.S.2011, § 2404(B), prohibits the introduction of other crimes, wrongs, or acts to prove the character of a person. 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 U. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334. An act that is not a violation of the criminal law is nonetheless governed by § 2404(B) where it carries a stigma that could unduly prejudice an accused in the eyes of the jury. Eizember U. State, 2007 OK CR 29, I 75, 164 P.3d 208, 230; Freeman v. State, 1988 OK CR 192, I 3, 767 P.2d 1354, 1355. However, evidence of other crimes or bad acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Baird U. State, 2017 OK CR 16, I 37, 400 P.3d 875, 885 (quoting § 2404(B).

Appellant argues that the challenged evidence did not meet any of the § 2404(B) exceptions. To be admissible, evidence of other crimes must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(s) must be necessary to support the State’s burden of proof, proof of the other crime(s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions. Lott, 2004 OK CR 27, I 40, 98 P.3d at 334.

Reviewing the record in the present case, we find that the other crimes evidence met both the motive and intent exceptions. The record in the present case shows that prior to trial the State filed a notice pursuant to Burks v. State, 1979 OK CR 10, I 12, 594 P.2d 771, 774, overruled on other grounds by Jones v. State, 1989 OK CR 7, I 8, 772 P.2d 922, 925, regarding the subject evidence. The trial court found the evidence was admissible. The evidence was admitted on the issue of Appellant’s alleged motive, intent, common scheme or plan and absence of mistake or accident and the jury was instructed accordingly. Only Appellant and B.C. and A.C. were witnesses to the crimes charged herein. Appellant defended against the charges by proclaiming to police that he was incapable of any acts of sexual gratification. He claimed to have no sexual interest in B.C. and A.C. or young girls in general. During his interview with police, he stated, you could set a 22 year old baby doll in my lap and it would have no sexual effect on him at all (State’s Exhibit 11A). The State was entitled to put on evidence to counter this defense. See Cole U. State, 2007 OK CR 27, 9 23 n.5, 164 P.3d 1089, 1102 n.5 (evidence of prior crimes was admitted more as a matter of discrediting a defense than proving action in conformity with past character.); Douglas U. State, 1997 OK CR 79, I 25, 951 P.2d 651, 663, overruled on other grounds by Nicholson U. State, 2018 OK CR 10, T 12, 421 P.3d 890, 895 (where the appellant presented evidence of his non-violent character, the State properly presented evidence of his prior bad acts to rebut that evidence).

Evidence that Appellant owned pornography in which adult women were portrayed as little girls was relevant to rebut his claim of lack of sexual interest in little girls. It was also probative of his motive and intent to commit the charged crimes. There was a clear connection between the subject matter of the DVD’s and the crimes charged. Giving the challenged evidence its maximum reasonable probative force and minimum reasonable prejudicial value in the present case, we find that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Stewart U. State, 2016 OK CR 9, I 19, 372 P.3d 508, 512; 12 O.S.2011, § 2403. The jury received a limiting instruction regarding its use of this evidence. We find no error, plain or otherwise, in the admission of this evidence.

Similarly, evidence that Appellant searched the internet for and visited websites with subjects such as little girls nude and Cute Tween girls nude was properly admitted pursuant to Section 2404(B). This evidence served to rebut his claim of inability to become sexually aroused, as well as to establish his motive and intent to commit the crimes of child sexual abuse. There is an obvious connection between the content of the internet searches and websites and the crimes charged. The probative value of the evidence was not substantially outweighed by its prejudicial effect. We find that the trial court did not abuse its discretion in admitting this evidence. Proposition Two is denied.

In Proposition Three, Appellant claims the trial court’s statements to B.C. and A.C. after their testimony served as an endorsement of their testimony. As Appellant made no objection to the trial court’s comments, we review this claim for plain error pursuant to Simpson, as set forth above. See also Postelle U. State, 2011 OK CR 30, I 54, 267 P.3d 114, 137 (where the appellant failed to object to the trial court’s comments, appellate review was limited to plain error). At the end of B.C.’s testimony, the trial court stated, Very well. I want you to know you did a great job. Thank you very much. When A.C. concluded her testimony, the trial court stated, Okay [A.C.], you did awesome. These two comments comprise the basis for Appellant’s claim. The trial court cannot indicate its opinion regarding the credibility of a witness. Landrigan U. State, 1985 OK CR 52, I 10, 700 P.2d 218, 219-20. Thus, trial judges must be very cognizant of their comments in the presence of the jury. Given the ages of the two victims, there can be no doubt that testifying in the present trial was an upsetting experience. It is human nature for most adults to wish to reassure children and alleviate their stress. The judge’s two comments praising these young witnesses solely for their efforts in testifying served to calm them and in no way conveyed the judge’s opinion of their credibility or of the merits of their testimony.

However, we admonish judges to be cautious in dealing with witnesses and refrain from any actions or words which might call into question the judge’s impartiality. The judge’s misstep in speaking with the children was error, but it was not plain error because it did not affect Appellant’s substantial rights, meaning the outcome of the trial. Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923. The evidence against Appellant was overwhelming; therefore, the complained of interaction between the judge and the witnesses could not possibly have affected the outcome of the trial. We find Appellant has failed to show plain error based upon the trial court’s comments. Proposition Three is denied.

In Proposition Four, Appellant contends the forensic examiner’s notes of her interviews with B.C. and A.C. were improperly admitted. He alleges the notes were prejudicial and cumulative. This Court’s review of a trial court’s decision to either admit or exclude evidence is for an abuse of discretion pursuant to Willis, as addressed above. We utilize the definition of abuse of discretion contained in Neloms, as previously set forth.

Ms. Carroll testified she made notes during her interviews with B.C. and A.C. She included the notes with the anatomical drawings she used during her interviews with the children. These notes show that both girls referred to their vaginal areas as their lower spot. The notes also reflect the girls’ statements about Appellant’s abuse of them and where the abuse occurred. Defense counsel objected to the admission of the notes, likening them to police reports. The trial court determined the notes were writings made contemporaneously during the children’s forensic interviews and were in essence, statements dictated by the children. The duplication or repetition of evidence must be needless or inflammatory to constitute error. Mitchell v. State, 2010 OK CR 14, I 63, 235 P.3d 640, 656; Warner U. State, 2006 OK CR 40, I 168, 144 P.3d 838, 887, overruled on other grounds by Taylor U. State, 2018 OK CR 6, 9 168, 419 P.3d 265. This Court generally considers evidence which corroborates a witness’s testimony not to be needlessly cumulative. Warner, 2006 OK CR 40, I 168, 144 P.3d at 887.

The record shows both girls testified regarding Appellant’s abuse of them, Ms. Callahan testified regarding the note she received from the girls describing Appellant’s abuse of them. Both girls’ forensic interviews detailing Appellant’s abuse of them were admitted into evidence. Because Ms. Carroll’s notes made during her interviews with B.C. and A.C. corroborated the girls’ testimony and added nothing inflammatory, the notes were not needlessly cumulative. Moreover, as pointed out by the State, neither prosecutor referred to these notes during closing arguments or at any time after the notes were admitted. Accordingly, we find that the trial court did not abuse its discretion in admitting the notes. Proposition Four is denied.

In Proposition Five, Appellant argues the trial court erred in admitting the testimony of his former step-daughter concerning Appellant’s sexual abuse of her as a child. Appellant maintains that the prejudicial effect of this testimony outweighed its probative value. We review this claim for plain error utilizing the test set forth in Simpson above, as Appellant made no objection to the admission of this evidence at trial. Barnes, 2017 OK CR 26, I 22, 408 P.3d at 217.

The Oklahoma Evidence Code treats evidence of other crimes which are sex-related differently. In James U. State, 2009 OK CR 8, II 4-5, 204 P.3d 793, 795, we determined that 12 S.Supp.2007, § 2414 provides for admission of other instances of lewd molestation where the defendant is charged with an offense of lewd molestation. Section 2414(D) includes within the definition of an offense of child molestation any conduct proscribed by § 1123 of Title 21. Evidence that a defendant has committed other instances of lewd molestation may be considered for any relevant purpose, including the defendant’s propensity to commit the charged offense. Id., 2009 OK CR 8, I 8, 204 P.3d at 796; Horn v. State, 2009 OK CR 7, I 38, 204 P.3d 777, 786.

Ms. Yerkey testified at trial that when she was five or six, Appellant, her step-father, began fondling her, i.e., touching her chest and private area under her clothes. Appellant came into her room at night and performed these acts. When Ms. Yerkey was seven, Appellant put his penis on her vagina and made her put her mouth on his penis. He told her it was a special thing between them and told her not to tell anyone. Appellant does not dispute that Ms. Yerkey’s trial testimony met the exceptions found within § 2414. Instead, his argument is that the probative value of the testimony was substantially outweighed by its prejudicial effect since his abuse of Ms. Yerkey was more extensive than his abuse of B.C. and A.C.

Appellant’s initial pattern of abusing Ms. Yerkey, touching her privates underneath her clothing at night, was extremely probative on the issue of his abuse of B.C. and A.C. because it was identical to the abuse he perpetrated upon them. It is clear Appellant’s abuse of Ms. Yerkey escalated because she continued to live in the household with him. B.C. and A.C. refused to return to Appellant’s home after he abused them. In Horn, this Court found [t]he need for corroborating evidence in cases of child sexual abuse due to the highly secretive nature of the crime, together with the protection of the public from sex offenders whose history of similar acts tends to be exceptionally probative, justified the enactment of Oklahoma’s statutes allowing for the admission of such propensity evidence. Horn, 2009 OK CR 7, IT 38, 204 P.3d at 786.

Propensity evidence is subject to the balancing test set forth in 12 O.S.2011, § 2403. When measuring the relevancy of evidence against its prejudicial effect, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. Stewart, 2016 OK CR 9, I 19, 372 P.3d at 512.

Giving Ms. Yerkey’s testimony its maximum reasonable probative force and its minimum reasonable prejudicial value in the present case, we find that the probative value of the challenged evidence was not substantially outweighed by the danger of unfair prejudice. Her testimony showed that Appellant had a predilection for young, pre-pubescent girls thus establishing the element of in a lewd or lascivious manner. See Instruction Number 4-129, OUJI-CR(2d) (2015). Her testimony also tended to establish that Appellant purposefully touched B.C.’s and A.C.’s vaginas. Because Ms. Yerkey’s testimony substantially corroborated B.C.’s and A.C.’s accounts of Appellant’s abuse of them, the probative value of the evidence was great. There can be no doubt that Ms. Yerkey’s testimony was prejudicial to Appellant. However, the described acts were the very reason why the testimony was probative. We note that the trial court gave the jury the requisite limiting instruction directing the jurors’ consideration of Ms. Yerkey’s testimony. Based upon the record, we cannot say that the trial court’s determination was clearly against the weight of the facts presented. Accordingly, we find that Appellant has failed to show error, much less plain error in the admission of Ms. Yerkey’s testimony at trial. Proposition Five is denied.

In Proposition Six, Appellant claims the admission of improper victim impact evidence from Ms. Callahan invoked the passions and prejudices of the jury. He made no objection to the complained-of testimony. Therefore, this Court’s review is limited to that of plain error pursuant to the test found in Simpson, previously addressed above. Barnes, 2017 OK CR 26, I 22, 408 P.3d at 217.

Ms. Callahan testified regarding B.C.’s and A.C.’s disclosure to her of Appellant’s abuse of them. Included in that testimony was her explanation regarding her delay in reporting the abuse. Ms. Callahan revealed that she had been a victim of sexual abuse when she was a young girl. Her experience was extremely negative in that she testified she was not believed, no charges were filed and she had to continue contact with her abuser. Ms. Callahan testified her experience caused her to be concerned for her children. This evidence was not victim impact evidence. Such evidence is defined as: information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the opinion of the victim of a recommended sentence; 21 O.S.Supp.2014, § 142A-1(8). Clearly, Ms. Callahan’s testimony did not concern any of the above matters. It was admitted to explain why she delayed reporting the sexual abuse of her daughters to authorities. While Ms. Callahan’s testimony undoubtedly invoked sympathy for sexual abuse victims, her testimony was not admitted in error. Certain facts simply cannot be disentangled from a criminal trial on the basis they invoke sympathy. Cole, 2007 OK CR 27, I 54, 164 P.3d at 1101. Moreover, the jury was instructed not to let sympathy, sentiment, or prejudice enter into its deliberations. This Court presumes juries follow their instructions. Smith U. State, 2013 OK CR 14, 91 37, 306 P.3d 557, 570-71. Since Appellant has failed to show that any victim impact evidence was admitted, no error, plain or otherwise occurred. Proposition Six is denied.

Appellant also raises a separate claim within this proposition that the admission of the subject evidence resulted in excessive sentences. This violates Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2018). Collins U. State, 2009 OK CR 32, IT 32, 223 P.3d 1014, 1023 (Under our recently revised Rule 3.5(A)(5), combining multiple issues in a single proposition is clearly improper and constitutes waiver of the alleged errors.). Consequently, Appellant has waived any argument that his sentences are excessive.

In Proposition Seven, Appellant contends that prosecutorial misconduct deprived him of a fair trial. He concedes that he waived appellate review of this claim for all but plain error when he failed to object to the prosecutor’s comments at trial. Therefore, we review his claim pursuant to the test set out in Simpson, as set forth above. Malone U. State, 2013 OK CR 1, I 41, 293 P.3d 198, 211-12.

Allegations of prosecutorial misconduct are reviewed on appeal pursuant to the test set forth in Donnelly U. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Under this standard, [r]elief 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. Bench U. State, 2018 OK CR 31, I 123, 431 P.3d 929, 963. 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. Sanders U. State, 2015 OK CR 11, 9 21, 358 P.3d 280, 286.

Reviewing the record, we find that Appellant has not shown the existence of an actual error within any of his allegations of prosecutorial misconduct. The prosecutor did not vouch for the credibility of the victims. See Mitchell v. State, 2018 OK CR 24, 9 31, 424 P.3d 677, 686 (quoting Taylor v. State, 2011 OK CR 8, I 57, 248 P.3d 362, 379) (Vouching occurs when a prosecutor expresses a personal belief in a witness’s credibility ). The prosecutor made no appeals for sympathy for B.C. and A.C. but recounted the evidence and argued how the evidence supported their credibility. See Lamar U. State, 2018 OK CR 8, I 54, 419 P.3d 283, 297 (Both parties have wide latitude in closing argument to argue the evidence and reasonable inferences from it.); Cole, 2007 OK CR 27, I 54, 164 P.3d at 1101 (certain facts cannot be ignored at trial simply because they tend to invoke sympathy for the victims).

The prosecutor properly made use of Appellant’s own words, mental repercussions, during closing argument. Cf. Howell U. State, 2006 OK CR 28, I 17, 138 P.3d 549, 557 (The trial court did not abuse its discretion when it allowed the prosecutor to reference Howell’s actual words in its examination of witnesses and closing argument and no relief is warranted on this claim.). Similarly, the prosecutor did not express her opinion as to Appellant’s guilt. See Williams U. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228 (holding prosecutor may tell jury the evidence supports finding of guilt but may not cause jury to abandon its duty and convict based on prosecutor’s own opinion). Finally, the prosecutor did not misstate the evidence when she spoke to the jury regarding punishment. It is proper for the prosecutor to recommend punishment. See Van White v. State, 1999 OK CR 10, IT 69, 990 P.2d 253, 272 ([P]rosecution may recommend the punishment to be given.); Mahorney U. State, 1983 OK CR 71, I 17, 664 P.2d 1042, 1047 (On numerous occasions this Court has upheld cases where the prosecutor has recommended sentences to the jury.).

In the present case, the maximum punishment the jury could recommend was life imprisonment. Reviewing the entire record, the cumulative effect of the prosecutor’s comments did not deprive Appellant of a fair trial. Daniels U. State, 2016 OK CR 2, I 13, 369 P.3d 381, 385. Therefore, we find that Appellant has not shown that error, plain or otherwise, occurred. Proposition Seven is denied.

In Proposition Eight, Appellant challenges the effectiveness of defense counsel. He argues counsel was ineffective for failing to object to the errors alleged in Propositions I-IV and VII. This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland U. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Malone, 2013 OK CR 1, I 14, 293 P.3d at 206. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Id., citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Because we have found no errors in Propositions I-IV and VII, Appellant has not shown his counsel’s performance was deficient or that he suffered any prejudice. Harris v. State, 2007 OK CR 28, I 41, 164 P.3d 1103, 1118 (As we have found no error in the previous propositions, counsel cannot be ineffective for failing to raise objections to issues contained therein.). Proposition Eight is denied.

In Proposition Nine, Appellant claims the combined errors in his trial denied him the right to a constitutionally guaranteed fair trial. 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. Bechtel U. State, 1987 OK CR 126, I 12, 738 P.2d 559, 561. However, a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Baird U. State, 2017 OK CR 16, I 42, 400 P. 3d 875, 886.

We have identified only one error during the course of the trial in the present case but it was harmless. Therefore, no new trial or modification of sentence is warranted and Appellant’s last assignment of error 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.

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Footnotes:

  1. 21 O.S.Supp.2014, s 843.5(F)
  2. 21 O.S.2011, § 13.1
  3. Barnes v. State, 2017 OK CR 26, I 22, 408 P.3d 209, 217
  4. Simpson U. State, 1994 OK CR 40, II 3, 11, 23 30, 876 P.2d 690, 694-95, 698
  5. Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
  6. Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
  7. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  8. Runnels v. State, 2018 OK CR 27, I 19, 426 P.3d 614, 619
  9. Bosse U. State, 2017 OK CR 10, I 61, 400 P.3d 834, 856
  10. Fairchild U. State, 1999 OK CR 49, I 35, 998 P.2d 611, 620
  11. 12 O.S.2011, § 2404(B)
  12. Lott U. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334
  13. Eizember U. State, 2007 OK CR 29, I 75, 164 P.3d 208, 230
  14. Freeman v. State, 1988 OK CR 192, I 3, 767 P.2d 1354, 1355
  15. Baird U. State, 2017 OK CR 16, I 37, 400 P.3d 875, 885
  16. Burks v. State, 1979 OK CR 10, I 12, 594 P.2d 771, 774
  17. Jones v. State, 1989 OK CR 7, I 8, 772 P.2d 922, 925
  18. Cole U. State, 2007 OK CR 27, 9 23 n.5, 164 P.3d 1089, 1102 n.5
  19. Douglas U. State, 1997 OK CR 79, I 25, 951 P.2d 651, 663
  20. Mitchell v. State, 2010 OK CR 14, I 63, 235 P.3d 640, 656
  21. Warner U. State, 2006 OK CR 40, I 168, 144 P.3d 838, 887
  22. Stewart U. State, 2016 OK CR 9, I 19, 372 P.3d 508, 512
  23. 12 O.S.2011, § 2403
  24. James U. State, 2009 OK CR 8, II 4-5, 204 P.3d 793, 795
  25. 12 O.S.Supp.2007, § 2414
  26. Horn v. State, 2009 OK CR 7, I 38, 204 P.3d 777, 786
  27. Smith U. State, 2013 OK CR 14, 91 37, 306 P.3d 557, 570-71
  28. Collins U. State, 2009 OK CR 32, IT 32, 223 P.3d 1014, 1023
  29. Malone U. State, 2013 OK CR 1, I 41, 293 P.3d 198, 211-12
  30. Donnelly U. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)
  31. Bench U. State, 2018 OK CR 31, I 123, 431 P.3d 929, 963
  32. Sanders U. State, 2015 OK CR 11, 9 21, 358 P.3d 280, 286
  33. Mitchell v. State, 2018 OK CR 24, 9 31, 424 P.3d 677, 686
  34. Lamar U. State, 2018 OK CR 8, I 54, 419 P.3d 283, 297
  35. Williams U. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228
  36. Van White v. State, 1999 OK CR 10, IT 69, 990 P.2d 253, 272
  37. Mahorney U. State, 1983 OK CR 71, I 17, 664 P.2d 1042, 1047
  38. Daniels U. State, 2016 OK CR 2, I 13, 369 P.3d 381, 385

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.5 (2014) - Child Sexual Abuse
  • Okla. Stat. tit. 21 § 13.1 (2011) - Eligibility for Parole
  • Okla. Stat. tit. 12 § 2404(B) (2011) - Other Crimes, Wrongs, or Acts
  • Okla. Stat. tit. 12 § 2403 (2011) - Exclusion of Relevant Evidence
  • Okla. Stat. tit. 12 § 2414 (2007) - Evidence of Other Lewd Molestation
  • Okla. Stat. tit. 21 § 1123 - Lewd Molestation
  • Okla. Stat. tit. 21 § 142A-1(8) (2014) - Victim Impact Statement

Oklahoma Administrative Rules citations:

  • Okla. Admin. Code § 715:10-15-10(3) (2018)
  • Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2018)

U.S. Code citations:

  • 17 U.S.C. § 107 - Limitations on exclusive rights: Fair use
  • 21 U.S.C. § 843.5 - Child sexual abuse
  • 12 O.S.2011, § 2404 - Character evidence; Crimes, wrongs, or acts
  • 12 O.S.2011, § 2403 - Exclusion of relevant evidence on grounds of prejudice
  • 12 O.S.Supp.2007, § 2414 - Other crimes; admission in lewd molestation cases
  • 21 O.S.Supp.2014, § 142A-1 - Victim impact evidence
  • Strickland v. Washington, 466 U.S. 668 (1984) - Standard for ineffective assistance of counsel

Other citations:

No other rule citations found.

Case citations:

  • Barnes v. State, 2017 OK CR 26, I 22, 408 P.3d 209, 217
  • Simpson v. State, 1994 OK CR 40, II 3, I 30, 876 P.2d 690, 694-95, 698
  • Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
  • Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Runnels v. State, 2018 OK CR 27, I 19, 426 P.3d 614, 619
  • Bosse v. State, 2017 OK CR 10, I 61, 400 P.3d 834, 856
  • Fairchild v. State, 1999 OK CR 49, I 35, 998 P.2d 611, 620
  • Lott v. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334
  • Eizember v. State, 2007 OK CR 29, I 75, 164 P.3d 208, 230
  • Freeman v. State, 1988 OK CR 192, I 3, 767 P.2d 1354, 1355
  • Baird v. State, 2017 OK CR 16, I 37, 400 P.3d 875, 885
  • Burks v. State, 1979 OK CR 10, I 12, 594 P.2d 771, 774
  • Jones v. State, 1989 OK CR 7, I 8, 772 P.2d 922, 925
  • Cole v. State, 2007 OK CR 27, I 23 n.5, 164 P.3d 1089, 1102 n.5
  • Douglas v. State, 1997 OK CR 79, I 25, 951 P.2d 651, 663
  • Stewart v. State, 2016 OK CR 9, I 19, 372 P.3d 508, 512
  • James v. State, 2009 OK CR 8, II 4-5, 204 P.3d 793, 795
  • Horn v. State, 2009 OK CR 7, I 38, 204 P.3d 777, 786
  • Mitchell v. State, 2010 OK CR 14, I 63, 235 P.3d 640, 656
  • Warner v. State, 2006 OK CR 40, I 168, 144 P.3d 838, 887
  • Smith v. State, 2013 OK CR 14, I 37, 306 P.3d 557, 570-71
  • Malone v. State, 2013 OK CR 1, I 41, 293 P.3d 198, 211-12
  • Bench v. State, 2018 OK CR 31, I 123, 431 P.3d 929, 963
  • Sanders v. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286
  • Williams v. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228
  • Van White v. State, 1999 OK CR 10, I 69, 990 P.2d 253, 272
  • Mahorney v. State, 1983 OK CR 71, I 17, 664 P.2d 1042, 1047
  • Daniels v. State, 2016 OK CR 2, I 13, 369 P.3d 381, 385
  • Bechtel v. State, 1987 OK CR 126, I 12, 738 P.2d 559, 561

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