Stefon Donte Wytch v The State Of Oklahoma

F-2018-465

Filed: Aug. 29, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Stefon Donte Wytch appealed his conviction for First Degree Murder and Feloniously Pointing a Firearm. Conviction and sentence were life imprisonment without the possibility of parole for murder and ten years for pointing a firearm. Judge Kuehn dissented. In this case, Wytch was found guilty of killing Julius Templeton and threatening his former girlfriend, Miranda Orr. The incident happened when Orr was moving, and Wytch showed up with a gun. He threatened Orr and then shot Templeton, who was unarmed. Wytch claimed he acted in self-defense, saying Templeton attacked him, but there was no weapon found on Templeton. The court considered whether previous evidence of Wytch's threats to Orr was fair to include in the trial, and they said it was because it showed Wytch’s feelings of jealousy. Wytch argued that the prosecutor misled the jury about the burden of proof, but the court found the prosecutor's comments were appropriate responses to the defense's arguments. Finally, Wytch said his sentence was too harsh, but the court disagreed and affirmed the sentences given by the jury.

Decision

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. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there an error in the introduction of other-crimes evidence that denied him a fair trial?
• did the prosecutor's comments in closing argument improperly shift the burden of proof to the defendant?
• were the sentences imposed excessive under the circumstances?

Findings

• the trial court did not err in admitting evidence of Appellant's prior threat toward Orr
• the prosecutor's comments did not shift the burden of proof
• the jury's sentence recommendation is not "shocking to the conscience"
• the Judgment and Sentence of the District Court of Tulsa County is AFFIRMED

F-2018-465

Aug. 29, 2019

Stefon Donte Wytch

Appellant

v

The State Of Oklahoma

Appellee

OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Stefon Donte Wytch, was convicted by a jury in Tulsa County District Court, Case No. CF-2016-6760, of Count 1, First Degree Murder, and Count 2, Feloniously Pointing a Firearm. On April 27, 2018, the Honorable Kelly Greenough, District Judge, sentenced him in accordance with the jury’s recommendation to life imprisonment without possibility of parole and a $10,000 fine on Count 1, and to ten years imprisonment and a $10,000 fine on Count 2.

FACTS

Appellant was charged with threatening his former girlfriend, Miranda Orr, and with fatally shooting her friend, Julius Templeton, on December 9, 2016. When Orr broke off her relationship with Appellant in early 2016 she was pregnant with his child. However, Appellant and Orr continued a casual relationship, with Appellant occasionally spending the night at Orr’s apartment. Orr testified that Appellant was jealous of her relationships with other men.

In December 2016, Orr arranged to move from her apartment into a house. Her friend Julius Templeton agreed to help her move. On the morning of December 9, Templeton was at Orr’s apartment. Appellant showed up there as well, saying he wanted to pick up some tools that belonged to him. Orr testified that she tried to keep Appellant from going upstairs where Templeton was, to avoid any confrontation between the two men. However, when Orr briefly went outside, Appellant went upstairs and saw Templeton. Orr ran upstairs, and she and Appellant argued.

Orr testified that Appellant slapped her, pulled out a gun, put it to her head, and threatened to kill her. Orr’s sister-in-law, Wendy Hicks, who was also present, testified to hearing Appellant threaten Orr. Templeton walked into the room and told Appellant to leave Orr alone. Appellant pointed his gun at Templeton and fatally shot him. Orr said Templeton had nothing in his hands and made no threatening gestures before he was killed.

Appellant testified on his own behalf. He admitted shooting Templeton, but claimed he acted in self-defense. He claimed that Orr began arguing with him about his visitation rights with their daughter and claimed she assaulted him during this conversation. Appellant claimed that Templeton entered the room and was the first aggressor in a physical altercation. He claimed that he only shot Templeton after seeing him reach for a black-handled object in his waistband. No weapon of any kind was found on Templeton’s person.

DISCUSSION

In Proposition I, Appellant claims the introduction of other-crimes evidence denied him a fair trial. The State alleged that Appellant threatened Miranda Orr with a pistol and then, moments later, out of apparent jealousy, fatally shot Julius Templeton. Appellant denied threatening Orr and claimed he only shot Templeton in self-defense. To bolster its theory, the State offered evidence that when Orr broke off her relationship with Appellant in early 2016, he pointed a pistol at her and threatened her. The State gave pretrial notice of its intention to offer this evidence, consistent with Burks v. State, 1979 OK CR 10, I 12, 594 P.2d 771, 774 (overruled in part on other grounds in Jones v. State, 1989 OK CR 7, I 8, 772 P.2d 922, 925).

The trial court held a hearing on the matter. Appellant objected to the evidence at the hearing, but did not renew his objection when the evidence was actually offered at trial, so our review of this claim is only for plain error. Appellant must show the existence of an actual error, which is plain or obvious, and which affected his substantial rights, meaning the error affected the outcome of the proceeding. Bramlett v. State, 2018 OK CR 19, I 23, 422 P.3d 788, 796. This Court will only correct plain error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings, or otherwise represents a miscarriage of justice.

The record shows that the trial court thoroughly considered all relevant criteria in deciding whether to admit evidence of Appellant’s prior threat to Orr. The court found a visible connection between the prior threat and the instant crimes, with Appellant’s jealousy over Orr’s relationships as the common theme. Evidence of prior difficulties between a defendant and a current or former domestic partner can be relevant to show motive, intent, and the absence of mistake or accident.

We also note that the jury was properly instructed on the limited use of this other-crimes evidence, both before it was introduced and at the close of the case. The trial court did not err in admitting evidence of Appellant’s prior threat toward Orr. Proposition I is denied.

In Proposition II, Appellant claims that in closing argument, the prosecutor made several comments which shifted the burden of proof, requiring him to prove his innocence. Only one of these comments was met with an objection; we review the rest for plain error. Claims of prosecutor misconduct are reviewed in 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. Relief is warranted only if the misconduct collectively deprives the defendant of a fair trial.

The comments complained of were made in the State’s final closing, after defense counsel delivered his closing argument. The theme of the defense was that the two witnesses to Appellant’s acts, Orr and Hicks, gave false testimony, and that Appellant’s own account should be believed instead. In final closing, the prosecutor responded by pointing out that defense counsel had ample opportunity to clarify those matters himself, but chose not to.

These comments did not shift the burden to the defense to prove Appellant’s innocence. They were fair comments on the defense’s opportunity to test the State’s evidence. The overarching theme of the prosecutor’s final closing was that in order to find Appellant not guilty, the jury would have to reject out-of-hand the testimony of the State’s chief witnesses.

When the prosecutor’s comments are considered in context and as a whole, we cannot say they were improper or unfairly prejudicial in any way. Proposition II is denied.

Appellant’s third and final claim is that the sentences recommended by the jury and imposed by the trial court were excessive under the circumstances. Appellant was sentenced to life imprisonment without possibility of parole for murdering Templeton, and to ten years imprisonment for pointing his pistol at Orr and threatening her. These were the maximum sentences available to the jury.

Appellant points out that he had no prior criminal record, and maintains that he acted in self-defense, even though the jury rejected that claim. At this stage of the proceedings, we review the facts in a light most favorable to the State. Those facts show an unprovoked assault on one person, and the senseless, fatal shooting of another. We cannot say the jury’s sentence recommendation is shocking to the conscience, the standard by which we review excessive-sentence claims. Proposition III is denied.

DECISION

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. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Footnotes:

1. Burks v. State, 1979 OK CR 10, ¶ 12, 594 P.2d 771, 774.
2. Jones v. State, 1989 OK CR 7, ¶ 8, 772 P.2d 922, 925.
3. Bramlett v. State, 2018 OK CR 19, ¶ 23, 422 P.3d 788, 796.
4. Miller v. State, 2013 OK CR 11, ¶ 89, 313 P.3d 934, 966.
5. Eizember v. State, 2007 OK CR 29, ¶ 87, 164 P.3d 208, 232.
6. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 27, 241 P.3d 214, 226.
7. Short v. State, 1999 OK CR 15, ¶ 40, 980 P.2d 1081, 1097.
8. OUJI-CR (2nd) No. 9-9.
9. Bosse v. State, 2017 OK CR 10, ¶ 85, 400 P.3d 834, 863.
10. Pickens v. State, 2001 OK CR 3, ¶ 39, 19 P.3d 866, 880.
11. Roy v. State, 2006 OK CR 47, ¶ 44, 152 P.3d 217, 231-32.
12. Coleman v. State, 1979 OK CR 96, ¶ 5, 600 P.2d 351, 353.
13. Worcester v. State, 1983 OK CR 129, ¶ 11, 669 P.2d 283, 285.
14. White v. State, 2019 OK CR 2, ¶ 29, 437 P.3d 1061, 1072.
15. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - First Degree Murder
• Okla. Stat. tit. 21 § 1289.16 - Feloniously Pointing a Firearm
• Okla. Stat. tit. 22 § 405 - Plain Error
• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 1172 - Self-Defense

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• 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
• Miller v. State, 2013 OK CR 11, I 89, 313 P.3d 934, 966
• Eizember v. State, 2007 OK CR 29, I 87, 164 P.3d 208, 232
• Cuesta-Rodriguez v. State, 2010 OK CR 23, I 27, 241 P.3d 214, 226
• Short v. State, 1999 OK CR 15, I 40, 980 P.2d 1081, 1097
• Bosse v. State, 2017 OK CR 10, I 85, 400 P.3d 834, 863
• Pickens v. State, 2001 OK CR 3, I 39, 19 P.3d 866, 880
• Roy v. State, 2006 OK CR 47, I 44, 152 P.3d 217, 231-32
• Coleman v. State, 1979 OK CR 96, I 5, 600 P.2d 351, 353
• Worcester v. State, 1983 OK CR 129, I 11, 669 P.2d 283, 285
• White v. State, 2019 OK CR 2, I 29, 437 P.3d 1061, 1072
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149

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