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ORIGINAL *1044684092 FILED IN COURT OF CRIMINAL APPEALS IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA OF THE STATE OF OKLAHOMA DEC – 5 2019 JOHN D. HADDEN CLERK KEENAN LYNN HOLCOMB, ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. F-2018-566 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) OPINION LEWIS, PRESIDING JUDGE: Appellant, Keenan Lynn Holcomb, was tried by jury and convicted of Count 1, first degree murder, in violation of 21 O.S.Supp.2012, § 701.7(A); Count 2, unlawful removal of a dead body, in violation of 21 O.S.2011, § 1161; Count 3, kidnapping, in violation of 21 O.S.Supp.2012, § 741; and Count 4, forcible oral sodomy, in violation of 21 O.S.Supp.2016, § 888, in the District Court of Cleveland County, Case No. CF-2016-990. The jury sentenced Appellant to life imprisonment without the possibility of parole on Count 1, five years imprisonment on Count 2, twenty years imprisonment on Count 3, and ten years imprisonment on Count 4. The Honorable Thad Balkman, District Judge, pronounced judgment and ordered the sentences served consecutively. Mr. Holcomb appeals. FACTS On June 8, 2016, Appellant began communicating online with Michelle Stuard, who was working as a prostitute at the time. Appellant used the nickname “Batman” in these communications, several of which were later offered in evidence at his trial. Appellant arranged to get a ride from Stuard in exchange for half of the money from a planned sale of Lortabs. Stuard later testified at Appellant’s preliminary examination about the sequence of events leading to the death of Tamyra Elston. Stuard borrowed her roommate’s car and picked up Appellant in north Oklahoma City. As they drove south on I-35, they saw Tamyra Elston walking along the road. At Appellant’s suggestion, they offered Elston a ride, which she accepted. They stopped on S.E. 89th Street to sell the drugs, but the buyer never showed. They stopped at another house in Oklahoma City, where they did methamphetamine. They then went to Elston’s apartment in Norman, arriving around 3 or 4 a.m. 2 A few hours later, Stuard left Elston’s apartment to go make some money. When Stuard returned about an hour later, Elston was playing the guitar. Appellant and Elston were getting along well. Stuard messaged or talked with various people on her cell phone, then left again to make some more money in southwest Oklahoma City. She got lost going back to Elston’s apartment in Norman, but arrived there around noon. While still sitting in her car and messaging other people about her need for money, Stuard received a text from Appellant stating that Elston had “flipped out” on him. After knocking on the door of Elston’s apartment, Stuard received another text from Appellant telling her not to knock on the door. Appellant answered the door and Stuard went in. Stuard asked where Elston was. Appellant told Stuard that Elston was in the bedroom. In the bedroom, Appellant took Stuard’s cell phone and car keys. Stuard saw Elston’s lifeless body in a kneeling position on the floor, with her torso face down on a mattress and box spring. Appellant stated to Stuard that “the bitch wouldn’t do what I wanted her to do.” He then put his belt around Stuard’s neck and tightened it up, telling her how easy it was for him to kill Elston, 3 “and, to me, insinuating that that’s how easy it would be for him to kill me, as well, if I didn’t do what he wanted.” Appellant later “showed [Stuard] exactly how he killed [Elston], which was with a shirt wrapped around her neck and tied in the back.” Stuard testified that she “cooperated with whatever he wanted me to do after that.” She explained that she “pretty much let him think that I agreed with what he did, that I was going to help him get away with it That was the only way I foresaw to save my own life.” Appellant then wiped down the apartment and collected items that he or Stuard might have touched. Stuard helped him, thinking he might kill her if she didn’t. As they waited in the apartment, Appellant told Stuard “if he was going to go to prison, he wasn’t going to go without something.” He said to Stuard, “Let’s see how obedient you really are.” Stuard then performed oral sex on Appellant, believing she had no choice but to do what he wanted. After dark, Appellant and Stuard loaded Elston’s body, which was wrapped in several sheets, and other items of evidence in Stuard’s car. Stuard saw that several people were watching them load the car, and hoped someone might call police. Appellant drove Stuard’s car as they left the apartment. On Robin Road in Norman, 4 they threw out some of the items of evidence. After buying gas in Choctaw, Appellant drove to a wooded area in Spencer. Stuard later testified Appellant had told her to drag Elston’s body from the car, and that she had complied. Appellant bumped into something with the car as they left the scene. Stuard also recalled that they spoke briefly with a woman in the Spencer area whom Appellant seemed to know. Appellant then drove to Wal-Mart, where he had planned to get a shovel and some bleach and “finish the job,” according to Stuard. Wal-Mart security cameras photographed them in the store. While inside the Wal-Mart, Stuard persuaded Appellant to return her keys and phone, and told him she was going to sleep in the car for a while. She then left the store. From her car, she called a friend and explained that the man she was with had just killed someone. The friend told Stuard to leave the Wal-Mart and wait for police across the street. This person then contacted police. When police contacted Stuard, she told them what she knew about the murder of Tamyra Elston. Police also located Appellant, still at the Wal-Mart, and arrested him. Stuard also led police to 5 the location of Elston’s body and the other location where they had disposed of evidence. The State’s forensic pathologist testified that a post-mortem examination of Elston’s body revealed bruising and abrasions consistent with a struggle, as well as injuries to the throat indicating that her death was caused by strangulation. Appellant called no witnesses in his defense, and did not testify at trial. In closing argument, defense counsel argued that Stuard had committed the murder herself, and that Appellant was only guilty of helping her dispose of the body. Additional facts will be discussed in connection with the propositions of error. ANALYSIS In Proposition One, Appellant argues that the admission of a transcript of Stuard’s preliminary hearing testimony at trial violated the state hearsay rule and his constitutional right to confrontation. He argues that the trial court erred in finding that Stuard was unavailable as a witness, and claims he was not afforded an adequate prior opportunity for cross-examination at preliminary hearing. 6 Appellant raised a timely objection to the use of Stuard’s preliminary hearing testimony. We review the trial court’s ruling for an abuse of discretion. Mathis U. State, 2012 OK CR 1, I 20, 271 P.3d 67, 75. An abuse of discretion is a clearly erroneous conclusion or judgment, one that is clearly against the logic and effect of the facts presented. Pullen v. State, 2016 OK CR 18, I 4, 387 P. .3d 922, 925. The hearsay rule allows in evidence an “unavailable” declarant’s prior testimony if the party against whom the testimony is now offered had an opportunity and similar motive to develop declarant’s testimony by direct, cross or redirect examination. 12 O.S.2011, § 2804(B)(1). As pertinent here, a declarant is “unavailable” when the proponent has been unable to procure the absent declarant’s attendance at trial by process or other reasonable means. 12 O.S.2011, § 2804(A)(5). The party offering evidence of a witness’s prior testimony must therefore establish the witness is absent despite good faith and due diligence in attempting to secure the witness’s presence. Bernay U. State, 1999 OK CR 37, I 15, 989 P. 2d 998, 1006. 7 The trial court must make determinations of good faith and due diligence on a case-by-case basis. Lavicky v. State, 1981 OK CR 87, I 16, 632 P.2d 1234, 1238. The proponent offering an absent witness’s prior testimony is not required to exhaust every possible avenue to locate or compel the attendance of a witness; good faith and reasonable efforts under the circumstances presented are sufficient. Mollett v. State, 1997 OK CR 28, I 32, 939 P.2d 1, 10. The law is also well-established that the prosecution’s use of preliminary hearing testimony as substantive evidence in a criminal trial is subject to two fundamental Sixth Amendment requirements: (1) the witness must be unavailable, and (2) the defendant must have had a prior opportunity to cross-examine the witness. Mathis, 2012 OK CR 1, I 19, 271 P.3d at 75. Appellant argues that the witness was not actually unavailable, and even if she was, that he was not afforded adequate opportunity for cross-examination to render the transcript admissible against him at trial. In response to Appellant’s objection to the proposed transcript of Stuard’s testimony offered at trial, the State presented testimony showing its unsuccessful attempts to obtain Stuard’s presence at trial. Stuard had previously failed to obey a subpoena commanding 8 her to appear for preliminary examination, and was arrested as a material witness to compel her testimony. Prosecutors also obtained her then-current address and several Facebook accounts associated with her, as well as the names of her relatives, before releasing her. Stuard apparently returned to Kansas after her release. The District Attorney’s witness coordinator made repeated attempts to contact Stuard through several phone numbers and Facebook accounts. The phone numbers were inactive and no responses to Facebook messages were received. The witness coordinator contacted the witness’s relatives seeking contact, but was told that these relatives had not heard from the witness in several months. The witness coordinator developed information that the witness had been in custody in various Kansas facilities, but learned that the witness had been released. A District Attorney’s investigator ran a computerized search for telephone numbers associated with the witness. All of the numbers returned from the query were inactive. The investigator contacted the witness’s sister, who told him the witness had discontinued all contact with family. The investigator obtained a 9 Google phone number and sent messages to the witness, but received no responses. Inquiries to several motels where the witness had reportedly stayed failed to disclose her current whereabouts. A tip that the witness had left Kansas for Chicago also failed to produce a current location. The prosecutor advised the trial court of her own failed attempts to reach Stuard on Facebook. Stuard had told the prosecutor at the time of preliminary hearing that she had no contact with roommates or family in Oklahoma, and planned to remain in Kansas indefinitely. The prosecutor had sought and obtained a material witness warrant for Stuard on the first day of trial, after learning that Stuard might be in custody in Kansas. This information proved to be incorrect, and Stuard’s whereabouts at the time of trial remained unknown to the State. The trial court found the State’s efforts to obtain the presence of the witness at trial were undertaken in good faith and were diligent. This conclusion is not clearly erroneous, or contrary to the logic and effects of the facts presented. See, e.g., Primeaux v. State, 2004 OK CR 16, 60-62, 88 P.3d 893, 905, overruled on other grounds, Gordon U. State, 2019 OK CR 24, I 14, P.3d , 10 (State showed good faith and due diligence where it had unsuccessfully attempted to locate absent prosecution witness through several family members and issuance of a material witness warrant). The trial court therefore did not abuse its discretion in finding the witness was unavailable to testify at trial. We turn then to Appellant’s claim that his opportunity for cross-examination was inadequate to support the admission of the witness’s prior testimony. He principally argues that certain cell phone logs obtained, and turned over, by the State in the days before trial were unavailable for use by the defense in cross- examining Stuard at preliminary hearing. Appellant reasons from this that his prior opportunity to cross-examine was inadequate to satisfy the requirements of confrontation. When a defendant is provided an opportunity to cross-examine the witness at a prior hearing and takes that opportunity, the requirement of confrontation is generally satisfied and a transcript of the prior testimony is admissible. Crawford U. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). Defense counsel here questioned Stuard extensively at preliminary hearing about potential inconsistences in her statements, her own 11 criminal background, and potential motives to testify falsely when identifying Appellant as Elston’s killer. Defense counsel had ample opportunity to develop and challenge Stuard’s testimony about the central facts of what happened, as well as important facts affecting Stuard’s credibility. Neither the State nor the defense sought to introduce evidence of the cell phone logs that were unavailable to the defense at preliminary examination. These could not have produced substantially different or better grounds of impeachment of Stuard’s principal testimony. Stuard admitted under cross-examination she had disobeyed a subpoena to appear and testify; that she was a prostitute; that she was high on drugs during the events in question; that she was not certain of the exact dates or times of events; that Appellant did not physically force her to sodomize him; that she had not called out to the people outside Elston’s apartment for help; that she had not driven away as soon as Appellant gave her the keys to move the car at the victim’s apartment. Appellant introduced additional evidence of Stuard’s inconsistent statements through testimony of an investigator who interviewed her. 12 We find the prior opportunity to cross-examine Stuard was sufficient to satisfy confrontation requirements, and that any minor deficiencies in the initial confrontation caused no prejudice to Appellant’s defense at trial. Willis U. State, 2017 OK CR 23, II 18, 406 P.3d 30, 34-35 (finding that defense counsel adequately challenged the absent witness’s testimony and credibility at preliminary hearing); Thompson U. State, 2007 OK CR 38, I 11 22-26, 169 P.3d 1198, 1202, 1206-07 (finding that defense counsel had adequate opportunity to challenge witnesses’ account of the events as well as their credibility). The trial court did not abuse its discretion by admitting the transcript of Stuard’s preliminary hearing testimony at trial. Proposition One is denied. In Propositions Two and Three, Appellant argues that the evidence was legally insufficient to convict him of kidnapping and forcible oral sodomy, respectively. Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the State, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04. 13 As pertinent here, the elements of kidnapping are established when the defendant, without lawful authority, seizes, confines, abducts, or carries away the victim, with intent to cause the victim to be confined or imprisoned against their will. 21 O.S.2011, § 741. Stuard testified that when she entered Elston’s bedroom, Appellant took her keys and phone from her. She described the Appellant’s admission that he had killed Elston after Elston didn’t do what he wanted. Stuard testified that Appellant physically demonstrated how he had killed Elston, and suggested that he could easily do the same thing to her. As a result of these acts, Stuard testified that she felt that she must do whatever Appellant wanted. Under duress, she admitted that she had helped Appellant clean up the crime scene, and went along with him to dispose of the body and other evidence. We find the direct and circumstantial evidence supports the jury’s verdict that Appellant unlawfully seized and confined Stuard with the intent to confine her against her will. The crime of sodomy includes oral sexual penetration of the victim, regardless of age, when accomplished “by means of force, violence, or threats of force or violence accompanied by apparent 14 power of execution.” 21 O.S.2011, § 888. Again, direct and circumstantial evidence of Appellant’s menacing statements and behavior toward Stuard supports the jury’s finding that Appellant accomplished the act of sodomy by means of “threats of force or violence, accompanied by apparent power of execution,” which overcame her will. The evidence is sufficient to establish the crime of forcible sodomy. Propositions Two and Three are therefore denied. Appellant’s Proposition Four argues that trial counsel was ineffective when he failed to raise the defense of consent to the charged crimes of kidnapping and forcible oral sodomy. We review this claim under Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requiring that Appellant show not only that counsel performed deficiently, but that Appellant was prejudiced by it. Id. at 687, 104 S.Ct. at 2065. Evidence of deficient performance must overcome a strong presumption that counsel’s actions constituted sound trial strategy. Id., 466 U.S. at 689, 104 S.Ct. at 2052. Prejudice is shown when counsel’s deficient performance creates a reasonable probability that the result of the proceeding would have been different. 15 We find that counsel’s omission to raise a defense of consent to charges of kidnapping and forcible sodomy was not unreasonably deficient, and creates no reasonable probability of a different outcome at trial. The trial court’s instructions required that the jury acquit the defendant of kidnapping unless the State proved beyond a reasonable doubt that Appellant had seized or confined Stuard with the intent to confine her “against [her] will.” The instructions required Appellant’s acquittal on the charge of forcible sodomy unless the State proved beyond a reasonable doubt that Appellant’s sexual penetration was accomplished by “force or violence, or threats of force or violence.” Appellant’s defense was that Stuard masterminded the murder. Counsel thus implicitly denied that Appellant ever seized or confined Stuard, and argued that her claim of performing oral sex on him was uncorroborated and unworthy of belief. Had the jury entertained a reasonable doubt that Stuard had been forcibly confined or sodomized against her will, it would have acquitted Appellant of these crimes. Counsel’s failure to press the defense of consent more explicitly was neither deficient nor prejudicial. Proposition Four is denied. 16 In Proposition Five, Appellant argues that the trial court abused its discretion in admitting State’s Exhibits 132-140 and 146-147, several photos depicting the body of the victim. Appellant alleges that these photos depict unfairly prejudicial changes resulting from decomposition and evidence of the medical examiner’s handiwork. He argues that due to their gruesome nature, their admission in evidence denied him a fair trial. Appellant preserved objections to Exhibits 132-39 and 146-47, but did not object to Exhibit 140, waiving all but plain error. He must therefore show that admitting Exhibit 140 was plain or obvious error that affected the outcome. This Court will correct plain error when it seriously affects the fairness, integrity, or public reputation of the proceedings or caused a miscarriage of justice. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. We review his challenge to the remaining photographs on the merits. The admission of evidence, including photographs in a murder case, is committed to the trial court’s sound discretion, and reviewable only for abuse of that discretion, as defined above. Photographs are admissible to corroborate the trial testimony; to show the location and extent of the victim’s wounds, the crime 17 scene, and supplement the medical examiner’s testimony. See Taylor v. State, 2011 OK CR 8, I 43, 248 P.3d 362, 376. Photographs of the victim(s) in a homicide trial do not become irrelevant simply because the cause or manner of death is uncontested. Smallwood v. State, 1995 OK CR 60, I 33, 907 P.2d 217, 228; The most disturbing of these photos show the exposed tissues of the victim’s neck at autopsy, and the distended features and unnatural colors of the victim’s face resulting from decomposition. But even these photos accurately depict the nature of the victim’s injuries and corroborate the medical examiner’s testimony. The probative value of these photos was not substantially outweighed by the danger of unfair prejudice; nor were they SO inflammatory as to infringe the Appellant’s due process rights. Proposition Five is therefore denied. In Proposition Six, Appellant argues that the trial court’s failure to grant him credit for jail time awaiting trial on his non- homicide crimes violates equal protection because he is indigent. He seems to reason that this denial of credit discriminates against him for poverty by extending those sentences beyond the maximum 18 allowed by law. Appellant failed to raise this claim below and has waived all but plain error, as defined above. The trial judge has discretion in deciding whether to allow a defendant credit for time served in jail before sentencing. Holloway U. State, 2008 OK CR 14, I 8, 182 P.3d 845, 847. Appellant was arrested on a capital charge for which bond was set at $3,000,000.00.1 Because he could not post bail on the capital charge, his inability to post bail on other charges had no effect on his pre-trial detention. He is currently serving life without possibility of parole and probably will never be required to serve a single day of the consecutive sentences. He has not shown any plain or obvious error in the trial court’s refusal to grant him credit for time served awaiting trial. Proposition Six requires no relief. Appellant’s Proposition Seven argues that the cumulative effect of errors requires relief. We have found no individual harmful errors, and no accumulation of prejudicial effects from individually harmless errors. Proposition Seven is denied. Barnett U. State, 2011 OK CR 28, 9 34, 263 P.3d 959, 970. 1 The record indicates a bond of $3,000,000.00 was set by the court, though Appellee states the bond was $5,000,000.00. The documents seem to reflect that the State requested this larger figure, but the court imposed the lesser amount. 19 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 delivery and filing of this decision. APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY THE HONORABLE THAD BALKMAN, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL JACOB KEYES LYDIA ANDERSON FIELDS CORY ORTEGA P. O. BOX 926 P. O. BOX 926 NORMAN, OK 73070 NORMAN, OK 73069 ATTORNEY FOR APPELLANT ATTORNEYS FOR DEFENDANT GREG MASHBURN MIKE HUNTER DISTRICT ATTORNEY ATTORNEY GENERAL JENNIFER AUSTIN JAY SCHNIEDERJAN ASSISTANT DISTRICT ATTORNEY ASST. ATTORNEY GENERAL 201 S. JONES, SUITE 300 313 N.E. 21ST ST. NORMAN, OK 73069 OKLAHOMA CITY, OK 73105 ATTORNEYS FOR STATE ATTORNEYS FOR APPELLEE OPINION BY LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J: Concur ROWLAND, J.: Concur 20

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