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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA GARRY WAYNE WILSON, aka ) GARY WAYNE WILSON, ) NOT FOR PUBLICATION ) ) Case No. F-2018-56 Appellant, ) V. ) ) FILED STATE OF OKLAHOMA ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. MAY 23 2019 JOHN D. HADDEN CLERK SUMMARY OPINION LUMPKIN, JUDGE: Appellant Garry Wayne Wilson aka Gary Wayne Wilson was tried by jury and convicted of First Degree Murder (21 O.S.Supp.2012, § 701.7(A)) (Count I) and Possession of a Firearm While Under Supervision of Department of Corrections (21 O.S.Supp.2014, § 1283(C)) (Count II) in the District Court of Tulsa County, Case No. CF-2016-5198. The jury recommended a sentence of imprisonment for life in Count I and for ten (10) years in Count II. The trial court sentenced accordingly, ordering the sentences to run consecutively. It is from this judgment and sentence that Appellant appeals. Appellant raises the following propositions of error in support of his appeal: I. The trial court abused its discretion by allowing the State to amend the Information at the close of the State’s case, materially altering the charge in Count II against Appellant and hampering his ability to defend against the amended charge. II. Appellant’s due process rights were violated when the trial court failed to properly instruct the jury. III. Improper cumulative and repetitive photos of the decedent and his injuries were introduced into evidence at jury trial resulting in prejudice to Appellant. IV. Prosecutorial misconduct deprived Appellant of a fair trial, violated his constitutional rights, and created fundamental error in this case. V. Appellant was prejudiced by ineffective assistance of trial counsel. VI. The cumulative effect of all these errors deprived Appellant of a fair trial and warrant relief for Appellant. 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 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 find that under the law and the evidence no relief is warranted. In Proposition I, we find the trial court did not abuse its discretion in permitting the amendment of the Information in Count II. The amendment conformed to the evidence but did not substantially change the charge against Appellant or interject any new issues. The amendment did not materially prejudice the rights of Appellant SO that he was surprised, confused, or otherwise prejudiced. See Sadler v. State, 1993 OK CR 2, I 41, 846 P.2d 377, 386 citing 21 O.S. § 304. See also Finley U. State, 1981 OK CR 3, I 8, 623 P.2d 1031, 1032. In Proposition II, we find the jury was properly instructed. Initially, Appellant’s complaint that trial counsel did not request an instruction on heat of passion manslaughter is not clear from the record. However, even if counsel did not request the instruction, whether to give the instruction was fully addressed by the trial court. Therefore, on appeal, our review is for abuse of discretion. See Frederick v. State, 2017 OK CR 12, I 72, 400 P.3d 786, 811 overruled on other grounds, Williamson U. State, 2018 OK CR 15, 422 P.3d 752. 3 Our case law holds that all lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be administered if they are supported by the evidence. Shrum v. State, 1999 OK CR 41, I 10, 991 P.2d 1032, 1036. See also Cipriano U. State, 2001 OK CR 25, IT 14, 32 P.3d 869, 873. However, when a defendant defends against a criminal charge by proclaiming innocence, he is not entitled to instructions on any lesser included offense. Frederick, 2017 OK CR 12, I 73, 400 P.3d at 812. Appellant testified at trial and denied shooting the victim, claiming the gun went off accidentally when he slammed the vehicle door on the victim. Based upon this testimony, he was not entitled to any lesser included offense instruction. Therefore, the trial court did not abuse its discretion in refusing to give an instruction on the lesser included offense of heat of passion manslaughter. Despite Appellant’s claim of innocence, the jury was given an instruction on a lesser included offense – first degree manslaughter by resisting criminal attempt. Contrary to Appellant’s argument, the instruction given, to which no defense objection was raised, provided the jury with an option if they did not want to convict for First Degree Murder but did not want to acquit. Further, when combined with the 4 self-defense instructions given, Appellant was not denied instructions on his chosen defense. For these reasons, the trial court did not abuse its discretion in omitting an instruction on heat of passion manslaughter. Appellant’s trial was bifurcated due to Count II. The jury was not informed of Count II during the first stage. At the close of the first stage, the jury was instructed in part that the issue of punishment was not before them at the time. However, the jury was also given Oklahoma Uniform Jury Instruction – Criminal 2d (OUJI-CR 2d) 10- 2 which essentially told the jury that it was their responsibility to determine punishment. Appellant complains for the first time on appeal that this instruction should not have been given in his bifurcated trial and it only served to confuse the jury by giving them inconsistent information on when punishment was at issue. We review for plain error as no contemporaneous objection was raised to the instruction. Daniels v. State, 2016 OK CR 2, T 3, 369 P.3d 381, 383. Under the plain error test set forth in Simpson V. State, 1994 OK CR 40, 876 P.2d 690, 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 5 error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. See also Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121; Levering, 2013 OK CR 19, IT 6, 315 P.3d at 395; Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. “When there is no objection to an instruction at the trial court level and an appellant challenges an instruction as ambiguous, we look at whether the instructions, taken as a whole, properly advise the jury of the applicable law.” Myers v. State, 2006 OK CR 12, I 64, 133 P.3d 312, 330, overruled on other grounds Davis v. State, 2018 OK CR 7, 419 P.3d 312. In Myers, this Court found no plain error where OUJI- CR 10-2 was given at the close of the first stage of a capital trial. While this Court determined that the instruction should not be given in a bifurcated trial, this Court found the jury was otherwise properly instructed that the issue of punishment was not before them and the instructions taken as a whole were not confusing or ambiguous. In the present case, any error in giving OUJI-CR 10-2 at the close of the first stage of trial did not affect Appellant’s substantial rights as the jury was otherwise instructed that the issue of punishment was not before them at the time. Further, the first stage instructions as a 6 whole did not address the issue of punishment, and the instructions properly set forth the elements of the crimes charged and the State’s burden of proof. Reviewing the instructions as whole, even with the inclusion of OUJI-CR 10-2, they were not confusing or ambiguous. We find no plain error. We also review for plain error Appellant’s next complaint regarding giving Instruction No. 38, OUJI-CR 2d 9-14. This instruction informs the jury that no person may be convicted of manslaughter in the first degree unless both the fact of the death of the person allegedly killed and the fact that his death was caused by the conduct of another person are established as independent facts and beyond a reasonable doubt. In arguing that this instruction was erroneously given as the issue of manslaughter was not before the jury, Appellant overlooks the fact that the trial court instructed the jury on the lesser included offense of first degree manslaughter by resisting criminal attempt. Therefore, the reference to first degree manslaughter in Instruction No. 38 was appropriate. Having thoroughly reviewed Appellant’s challenges to the jury instructions, we find no plain error as the instructions, when 7 considered as a whole, correctly instructed the jury on the applicable law. This proposition is denied. In Proposition III, Appellant contends that cumulative, repetitive photos of the victim and his injuries were improperly introduced at trial and the resulting prejudice warrants a new trial. Reviewing the numerous photos challenged on appeal, many for the first time, we find no error, plain or otherwise in their admission. The general principle is that photographs are admissible if their content is relevant and their probative value is not substantially outweighed by their prejudicial effect. Bench v. State, 2018 OK CR 31, I [61, 431 P.3d 929, 952. Relevant evidence is defined as evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 12 D.S.2011, § 2401. “The probative value of photographs of murder victims can be manifested in numerous ways, including showing the nature, extent and location of wounds, establishing the corpus delicti, depicting the crime scene, and corroborating the medical examiner’s testimony.” Bench, 2018 OK CR 31, I 61, 431 P.3d at 952. 8 “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise. Id. at 62, 431 P.3d at 952 9quoting 12 O.S.2011, § 2403). “Where there is duplication in images, the appellant has the burden to show that the repetition in images was needless or inflammatory.” Id. “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.” Id. The photos now challenged on appeal were all relevant and probative of the issues before the jury. They corroborated testimony of witnesses, and showed the extent of the victim’s injuries and the multiple crime scenes. None of the photos are identical and there is no needless duplication. As the probative value of the photos was not outweighed by the danger of unfair prejudice, we find no error, plain or otherwise in their admission. In Proposition IV, Appellant contends he was denied a fair trial by prosecutorial misconduct. Specifically, he claims the prosecutor: 1) repeatedly and improperly forced him to comment on the truthfulness 9 of other witnesses; 2) improperly made statements amounting to testimony that was not substantiated by evidence at trial; 3) misstated evidence and argued facts not in evidence; 4) improperly argued that Appellant was a liar, improperly vouched for the State’s witnesses, and improperly injected his personal opinons; and 5) improperly appealed to the jury’s sympathy and emotions during closing argument. Our review is for plain error as none of these instances were met with contemporaneous objections. See Sanders v. 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 fully from their standpoint the evidence and the inferences and deductions arising 10 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. Having thoroughly reviewed Appellant’s claims of prosecutorial misconduct under the standard set forth above, we find none of them constitute plain error. This proposition is denied. In Proposition V, Appellant contends he was denied the effective assistance of counsel by counsel’s failure to: 1) properly file a Motion to Quash; 2) raise objections to multiple instances of prosecutorial misconduct; 3) subject the State’s case to sufficient cross-examination; and 4) act as an advocate for Appellant. We review Appellant’s claims under the standard set forth in Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Goode v. State, 2010 OK CR 10, I 81, 236 P.3d 671, 686 citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. See also Sanders U. State, 2015 OK CR 11, I 29, 358 P.3d 280, 287. In Strickland, the Supreme Court said there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome 11 the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Goode, 2010 OK CR 10, I 81, 236 P.3d at 686. To establish prejudice, Appellant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at I 82, 236 P.3d at 686. After thoroughly reviewing the record, and Appellant’s allegations of ineffectiveness, we have considered counsel’s challenged conduct on the facts of the case as viewed at the time and have asked if the conduct was professionally unreasonable and, if so, whether the error affected the jury’s judgment. Warner v. State, 2006 OK CR 40, I 206, 144 P.3d 838, 893. Defense counsel’s performance in this case did not “so undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id, quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Appellant has failed to meet his burden of showing a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different. Accordingly, we find that Appellant was not denied the effective assistance of counsel. 12 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 sustain any of the other errors raised by Appellant. Lee, 2018 OK CR 14, I 20, 422 P.3d at 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. 13 AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE KELLY GREENOUGH, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL KATHY FRY VIRGINIA SANDERS P.O. BOX 1886 OKLAHOMA INDIGENT OWASSO, OK 74055 DEFENSE SYSTEM COUNSEL FOR DEFENDANT P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT STEVE KUNZWEILER MIKE HUNTER DISTRICT ATTORNEY ATTORNEY GENERAL KEVIN GRAY OF OKLAHOMA ASST. DISTRICT ATTORNEY SHERI M. JOHNSON 500 S. DENVER, STE. 900 ASST. ATTORNEY GENERAL TULSA, OK 74103 313 N.E. 21 ST ST. COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur 14

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