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ORIGINAL 11043783950* IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA SCOTT THOMAS STOUT, ) ) NOT FOR PUBLICATION Appellant, vs. ) No. F-2018-485 ) THE STATE OF OKLAHOMA, ) FILED IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) AUG 15 2019 SUMMARY OPINION JOHN D. HADDEN CLERK KUEHN, VICE PRESIDING JUDGE: Appellant, Scott Thomas Stout, was convicted by a jury in Kay County District Court, Case No. CF-2015-818, of one count of First Degree Rape (21 O.S.2011, § 1114) and one count of Sexual Battery (21 O.S.Supp.2013, § 1123(B)). The jury acquitted Appellant of two counts of Rape by Instrumentation. The State alleged several prior felony convictions, which enhanced the sentence on both charges. On May 7, 2018, the Honorable David Bandy, Associate District Judge, sentenced Appellant in accordance with the jury’s recommendation to twenty years for First Degree Rape, and four years for Sexual Battery, and ordered the sentences to be served consecutively. Appellant must serve at least 85% of his sentence for Rape before parole consideration. 21 S.Supp.2014, § 13.1(10). Appellant raises two propositions of error in support of his appeal: PROPOSITION I. PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL. PROPOSITION II. THE TRIAL COURT ERRED WHEN IT DISRUPTED DEFENSE COUNSEL’S CASE-IN-CHIEF TO ALLOW THE STATE TO PRESENT REBUTTAL EVIDENCE. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was convicted of raping and sexually assaulting a long-time friend. He told police the encounter was consensual, but the victim’s demeanor and appearance when she first reported the incident to police tended to corroborate her claim that Appellant forced himself on her. In Proposition I, Appellant claims the prosecutor (1) elicited sympathy for the victim, (2) bolstered her testimony, and (3) showed too much familiarity with some witnesses by calling them by their first names. Only one of these complaints was raised below; the rest are reviewed only for plain error. Cuesta-Rodriguez U. State, 2010 OK CR 23, I 109, 241 P.3d 214, 246. 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. Cuesta-Rodriguez, 2010 OK CR 23 at “I 96, 241 P.3d 2 at 243. Relief is warranted only if the misconduct effectively deprives the defendant of a fair trial. Id. As to the first complaint, when asked if she had any “lasting emotional issues” resulting from the assault, the victim said only that she wished she had resisted Appellant more forcefully. If the prosecutor was trying to elicit sympathy for the victim, this answer did not achieve that goal. Appellant cannot demonstrate any prejudice from this exchange. Given his criminal history, three of the four charges against Appellant (rape and rape by instrumentation) carried 20 years to life; the sexual battery charge carried four years to life. Even though the evidence was equally strong as to all counts, the jury acquitted Appellant of two of the rape charges, and recommended the minimum sentence on the remaining rape and sexual battery counts. Appellant next complains that the prosecutor improperly elicited opinions from two police officers about whether the victim was credible. Only one of these questions was met with an objection by defense counsel. While it is generally improper to ask one witness to give bald opinions about another witness’s credibility, asking a qualified witness whether the physical evidence is consistent with a victim’s account is not always objectionable. Here, the prosecutor tried to frame her 3 questions to refer to the evidence presented, and Appellant cannot demonstrate any prejudice. All four charges stemmed from the same event, and the strength of the evidence was the same as to all; nevertheless, as we have already noted, the jury acquitted Appellant on two and recommended minimum sentences on the rest. Finally, Appellant complains that the prosecutor referred to the victim and some other witnesses by their first names in closing argument. Because Appellant never objected to these references, we review them only for plain error, and find none. Again, because the jury acquitted Appellant on two of the four charges and recommended light sentences on the others, we fail to discern any prejudice from the prosecutor’s statements. We conclude that Appellant was not denied a fair trial by these allegations of prosecutor misconduct. Cuesta- Rodriguez, 2010 OK CR 23, I 96, 241 P.3d at 243. Proposition I is denied. In Proposition II, Appellant complains that over his objection, the prosecutor was allowed to interrupt the defense case by calling a detective to authenticate a recording of one of Appellant’s police interviews. A trial court’s departure from the usual order of evidence presentation is reviewed for an abuse of discretion. Hickman U. State, 4 1981 OK CR 36, I 8, 626 P.2d 873, 875. We note that Appellant’s direct examination was not interrupted. However, that direct examination raised an issue concerning an audio recording that the State had not previously introduced. The prosecutor wanted to impeach Appellant’s direct testimony with the recording. In fact, it was defense counsel’s objection to the lack of authentication which prompted the trial court to allow the prosecutor to re-call a detective to authenticate the recording before continuing with her cross-examination of Appellant. We find no abuse of discretion here. Proposition II is denied. DECISION The Judgment and Sentence of the District Court of Kay 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. AN APPEAL FROM THE DISTRICT COURT OF KAY COUNTY THE HONORABLE DAVID BANDY, ASSOCIATE DISTRICT JUDGE 5 ATTORNEYS AT TRIAL ATTORNEYS ON APPEAL SCOTT LOFTIS MARK P. HOOVER P.O. BOX 430 P.O. BOX 926 PONCA CITY, OK 74602 NORMAN, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT BILLIE CHRZ MIKE HUNTER SHAWNA TAYLOR ATTORNEY GENERAL OF OKLA. ASST. DISTRICT ATTORNEYS JENNIFER B. WELCH KAY COUNTY COURTHOUSE ASST. ATTORNEY GENERAL NEWKIRK, OK 74647 313 NE 21ST STREET COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY KUEHN, V.P.J. LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR IN RESULTS HUDSON, J.: CONCUR ROWLAND, J.: CONCUR 6

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