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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA KEITH LORENZO SUMPTER, ) ) NOT FOR PUBLICATION ) Appellant, ) Case No. F-2018-738 V. ) ) STATE OF OKLAHOMA ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. STATE OF OKLAHOMA DEC 19 2019 SUMMARY OPINION JOHN D. HADDEN CLERK LUMPKIN, JUDGE: Appellant Keith Lorenzo Sumpter was tried by jury and found guilty of Indecent or Lewd Acts with a Child Under Sixteen (16) Years (21 O.S.Supp.2015, § 1123), in the District Court of Oklahoma County, Case No. CF-2016-4057. The jury recommended as punishment imprisonment for thirty-five (35) years and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. Appellant raises the following propositions of error in support of his appeal: I. A hearsay statement that is against the penal interest of the declarant is admissible if there are corroborating circumstances that indicate 1 trustworthiness Frederick’s affidavit was against her penal interest and was corroborated, therefore it was error to refuse to admit the exculpatory affidavit. II. The Preliminary Hearing testimony of LaLethia Frederick should not have been admitted because Appellant was not able to effectively cross-examine Frederick on her subsequent repudiation of her testimony. Therefore, the introduction of this testimony violated Appellant’s right to confrontation. III. The Preliminary Hearing testimony of LaLethia Frederick should not have been admitted because it was rendered inherently unreliable by her subsequent repudiation. Therefore, introduction of this testimony did not fall under a hearsay exception and violated Appellant’s right to due process. IV. Oklahoma Rules of Evidence must comport with federal constitutional due process. Even if this Court finds that the exculpatory affidavit was not admissible under a hearsay exception, then federal due process still requires that it be admitted. V. The prosecutor committed misconduct in this case by improperly giving his own opinion of the defendant, bolstering the evidence, and by invoking sympathy for the alleged victim in this case. VI. The accumulation of error in this case deprived Appellant of due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, § 7 of the Oklahoma Constitution. 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 have determined that under the law and the evidence no relief is warranted. In Proposition I, Appellant argues the trial court erred in granting the State’s motion in limine to exclude a sworn affidavit made by Frederick (the victim’s mother) after Preliminary Hearing allegedly recanting her Preliminary Hearing testimony. The record reflects that approximately five (5) months after her Preliminary Hearing testimony, Frederick went to defense counsel’s office and executed a sworn affidavit allegedly “recanting” her Preliminary Hearing testimony. Subsequently, and prior to trial, it came to the State’s attention that Frederick intended to invoke her Fifth Amendment privilege at Appellant’s trial and not testify. Approximately five days before the start of trial, the State moved to declare Frederick unavailable as a witness and use her Preliminary Hearing transcript at trial. The State informed the court that Frederick was potentially facing criminal charges of child neglect or enabling child abuse and that the Public Defender, who had been appointed to represent Frederick, had 3 informed prosecutors that Frederick intended to invoke her Fifth Amendment rights at Appellant’s jury trial. After a hearing on the motion, the court ruled that Frederick was unavailable under 12 O.S.Supp.2014, § 2804(A)(1) and granted the State’s request to read her Preliminary Hearing testimony at trial. At this hearing, defense counsel informed the court that Frederick had come to his office after Preliminary Hearing and executed a sworn affidavit “basically recanting her entire testimony at the preliminary hearing saying she never saw anything; and as a matter of fact, the alleged victim came to her and said the defendant did not do anything to her. She just said this because he wouldn’t play with her and take her to the park, and she wanted him out of the house.” On the second day of trial, the State filed a Motion in Limine to Prohibit Testimony Regarding an Affidavit [Frederick’s “recantation”] explaining that in light of the court’s ruling that Frederick was unavailable, it sought to exclude any mention of her affidavit “recanting” her Preliminary Hearing testimony. The State argued that under 12 O.S. § 2804(B)(3), the affidavit exposed Frederick to criminal charges of perjury and there were no corroborating circumstances to indicate the affidavit’s trustworthiness. The trial court said only that 4 Frederick’s affidavit was “self-serving hearsay” and thus inadmissible. The State’s Motion in Limine was granted. Now on appeal, Appellant asserts the trial court erred in its ruling and the affidavit was admissible as a statement against Frederick’s penal interest pursuant to 12 O.S.Supp.2014, § 2804(B)(3). Appellant argues the trial court’s exclusion of the affidavit prevented him from impeaching L.H., the victim, and Frederick, her mother, and denied him his fundamental right to present a defense. Appellant asserts the error warrants reversal for a new trial or at the least sentence modification. This objection was not raised at trial, nor did Appellant make an offer of proof as to what Frederick’s affidavit would have shown. Therefore, our review on appeal is for plain error. See Tryon v. State, 2018 OK CR 20, I 51, 423 P.3d 617, 635 (“[a]fter a motion in limine is sustained, the party seeking to introduce the evidence must make an offer of proof at trial. Failure to follow this procedure on a motion in limine waives review on appeal of all but plain error.”). 1 We do not address Frederick’s ability to exercise her Fifth Amendment right as that was not challenged at trial and has not been raised in this appeal. 5 Under the test set forth in Simpson U. State, 1994 OK CR 40, II 10, 26, 30, 876 P.2d 690, 694, 699, 701, this Court determines whether the 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.; Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. See also Jackson U. 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. The United States Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” Simpson v. State, 2010 OK CR 6, I 9, 230 P.3d 888, 895 quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986). “The right to offer the testimony of witnesses is in plain terms the right to present a defense This right is a fundamental element of due process of law.” Id., quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920 1923, 18 L.Ed.2d 1019 (1967). However, a criminal defendant’s right to present a defense is not absolute. United States U. Valenzuela-Bernal, 458 U.S. 858, 875, 102 S.Ct. 3440, 73 6 L.Ed.2d 1192 (1992). “This right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The defense “does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor U. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d. 798 (1988). This Court has said that “[i]n the exercise of this right [to present a defense], the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Simpson, 2010 OK CR 6, I 9, 230 P.3d at 895 quoting Gore v. State, 2005 OK CR 14, I 21, 119 P.3d 1268, 1275. “Whether Appellant was denied the right to present a defense ultimately turns on whether the evidence at issue was admissible.” Id., 2010 OK CR 6, II 10, 230 P.3d at 895. Title 12 O.S.Supp.2014, § 2804(B)(3) in the Oklahoma Rules of Evidence, provides an exception to the hearsay rule for statements of an unavailable witness “tending to expose the declarant to criminal liability and offered to exculpate the accused. Such statements are 7 not admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” In this case, all parties at trial and on appeal refer to the affidavit as hearsay on the basis that it subjected Frederick to perjury charges for testifying differently than she did at Preliminary Hearing, and that Frederick’s “recanting” of her Preliminary Hearing testimony exculpated Appellant. However, the affidavit was never authenticated pursuant to 12 O.S.2011, § 2901, it was not offered into evidence, nor was a proffer of its contents made to the court. Therefore, the only information we have about the contents of the affidavit is defense counsel’s statement to the court. Assuming arguendo, the affidavit says what defense counsel said it does, it is not a “recanting” of Frederick’s Preliminary Hearing testimony. In both her Preliminary Hearing testimony and the affidavit, she admits she did not actually see any inappropriate conduct between Appellant and her daughter. According to defense counsel, in the affidavit Frederick said that “L.H. told her that Appellant had not done anything to her” and that L.H. made the whole thing up. At Preliminary Hearing, Frederick did not testify to anything L.H. may have said to her in this regard. She testified to statements made to 8 her by Appellant, but as to L.H., she only testified that she “talked to L.H. about the situation and sent her outside in the backyard.” Based upon counsel’s summary of the affidavit, the only record before us, the affidavit is not a “recanting” or retraction of the Preliminary Hearing testimony. At most, particular statements in the affidavit may have been inconsistent with the Preliminary Hearing testimony. However, the statements, as described by defense counsel, would not have subjected Frederick to perjury charges. Therefore, the affidavit does not satisfy the first requirement for admission under § 2804(B)(3) as a statement against Frederick’s penal interest and it was properly excluded. That the trial court used the wrong reason for excluding the affidavit, does not change our conclusion that the evidence was properly excluded. See Jacobs Ranch, L.L.C. U. Smith, 2006 OK 34, I 58, 148 P.3d 842, 857 (“[w]here the trial court reaches the correct result for the wrong reasons or on incorrect theories, it will not be reversed.”) Further, even if the trial court erred in excluding the affidavit, any error did not affect Appellant’s substantial rights as it did not deprive him of the ability to present a defense. Appellant testified at trial and denied any lewd conduct with L.H. Specifically, he denied ever 9 forcing L.H. to touch his penis. He refuted Frederick’s Preliminary Hearing testimony by denying that he called Frederick to tell her that he should not have let L.H. touch him. Appellant testified that L.H. lied about him touching her. He refuted the testimony of the responding officer, Corporal Yates, claiming the officer lied when he said he overheard Appellant say on the phone that he messed up and should not have let L.H. touch him. Appellant said the voice on the phone may not have been him. Appellant fully cross-examined Corporal Yates and L.H. Regarding L.H., defense counsel elicited testimony regarding motives L.H. may have had for her accusations against Appellant including that she did not like Appellant and wanted him out of her home. Further, counsel asked L.H. if she had ever told her mother she had made up the charges against Appellant, to which she replied she never told her mother that she made it up. L.H. said her mother never asked her if she was telling the truth. As the exclusion of Frederick’s affidavit did not affect Appellant’s substantial rights or result in a miscarriage of justice under 20 O.S.2011, § 3001.1, we find no plain error. This proposition is denied. 10 In Proposition II, Appellant contends that Frederick’s Preliminary Hearing testimony should not have been admitted at trial because he did not have the opportunity to cross-examine her about her (future) alleged “recanting” of a portion of that testimony. Appellant asserts the court’s error violated his confrontation rights under the Sixth Amendment and warrants either dismissal of his case, remand for a new trial, or for otherwise favorable modification. Appellant raised no objection to the use of the Preliminary Hearing testimony at trial. Therefore, our review is for plain error under the standard set forth above. Mitchell v. State, 2016 OK CR 21, “I 29, 387 P.3d 934, 945. “Crawford [v. Washington] emphasized that a defendant’s right to cross-examine the witnesses against him is the centerpiece of the Sixth Amendment’s confrontation right… And the use of preliminary hearing testimony in a criminal trial is the kind of ‘testimonial hearsay’ that Crawford recognized as being 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.” Willis v. State, 2017 OK CR 23, 14, 406 P.3d 30, 34 quoting Mathis U. State, 2012 OK CR 1, I 19, 271 P.3d 67, 71. 11 While counsel obviously could not have cross-examined Frederick at Preliminary Hearing about her future statements, counsel thoroughly cross-examined Frederick about her recollection and impressions of the alleged lewd conduct between Appellant and her daughter. Counsel’s questions were designed to challenge Frederick’s credibility and highlight the fact that she admitted she did not actually see any lewd conduct between Appellant and L.H. Counsel’s questions about the tumultuous relationship between Frederick and Appellant provided a possible motive for her testimony. “The United States Supreme Court has held that, when a defendant is provided an opportunity to cross examine the witness and avails himself of that opportunity at a prior hearing, the confrontation clause is satisfied and a transcript of the prior hearing is admissible.” Willis, 2017 OK CR 23, I 18, 406 P.3d at 34 quoting Stouffer U. State, 2006 OK CR 46, I 85, 147 P.3c 245, 266 citing Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Based upon the record in the present case, defense counsel had a sufficient opportunity to question Frederick at Preliminary Hearing, took full advantage of that opportunity, with a motive similar to that which would have been used at trial – to discredit Frederick and refute 12 her claim that Appellant committed a lewd act with L.H. While certain issues might have been further developed at trial, defense counsel had ample opportunity to develop and challenge Frederick’s testimony about the central facts of what happened as well as Frederick’s credibility and potential bias. Based upon the foregoing, admission of Frederick’s Preliminary Hearing testimony was not error, plain or otherwise. This proposition is denied. In Proposition III, Appellant challenges the admissibility of Frederick’s Preliminary Hearing testimony because it was later “recanted.” Appellant concedes the testimony was that of an unavailable witness pursuant to 12 O.S.Supp.2014, § 2804(B)(1), but argues the testimony did not bear the required indicia of reliability. This objection was not raised at trial, therefore our review is for plain error under the standard set forth above. Mitchell, 2016 OK CR 21, I 29, 387 P.3d at 945. The State has the burden of satisfying two threshold requirements before Preliminary Hearing testimony is admissible under § 2804(B)(1): ” (1) the actual unavailability of the witness despite good faith and due diligent efforts to secure the presence of the witness at trial; and, (2) the transcript of the witness’ testimony bears sufficient 13 indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior testimony”. Davis U. State, 1988 OK CR 73, I 7, 753 P.2d 388, 391. In Bernay U. State, 1999 OK CR 46, 989 P.2d 998, this Court found the unavailable witness’s Preliminary Hearing testimony sufficiently reliable as it was given under oath and in a “truth-inducing courtroom atmosphere” – “circumstances which closely approximated those of a typical trial.” Id., 1999 OK CR 46, I 17, 989 P.2d at 1007. Frederick’s Preliminary Hearing testimony was given under similar circumstances – under oath in a courtroom. Further, defense counsel was the same at trial and Preliminary Hearing. As addressed above, counsel thoroughly cross-examined Frederick on her recollections of the incident and possible motives for her testimony. Based upon this record, the trial court could reasonably find the Preliminary Hearing testimony bore “sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth” of the testimony. Appellant’s argument that the Preliminary Hearing testimony was not admissible because it was later found to be unreliable misses the mark in two ways. Whether the jury ultimately believed Frederick’s testimony is not the test for determining its 14 admission into evidence. Further, the record indicates the jury found Frederick’s Preliminary Hearing testimony reliable as it was consistent with the rest of the State’s evidence. There was no error, and thus no plain error in the admission of Frederick’s Preliminary Hearing testimony. This proposition is denied. In Proposition IV, Appellant argues that even if this Court finds Frederick’s affidavit inadmissible under state evidentiary rules, federal due process requires its admission. Relying on Chambers U. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) Appellant asserts that the Supreme Court has held that state hearsay rules that do not comport with federal due process should not be enforced. Our review of Appellant’s claim is for plain error as he raised no objection to the granting of the State’s motion in limine excluding the affidavit. Tyron, 2018 OK CR 20, “I 33, 423 P.3d at 632. In Chambers, the Supreme Court said: Few rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently 15 applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice. 410 U.S. at 302, 93 S.Ct. at 1049 (internal citations omitted). Unlike Chambers, Frederick’s affidavit (as summarized by defense counsel) was properly excluded as it did not meet the requirements of a well-established exception to the hearsay rule. The affidavit did not bear the “persuasive assurances of trustworthiness” required of exceptions to the hearsay rule and it was not critical to Appellant’s defense. See Lamar U. State, 2018 OK CR 8, I 49, 419 P.3d 283, 296. As explained in Proposition I, excluding the affidavit did not deprive Appellant of a meaningful opportunity to present a defense. See Ashton U. State, 2017 OK CR 15, II 18, 26-32, 400 P.3d 887, 893- 97 overruled on other grounds by Williamson v State, 2018 OK CR 15. While Appellant may not have had the opportunity to question 16 Frederick about the affidavit, he did thoroughly cross-examine her at Preliminary Hearing concerning her observations and conclusions of what occurred in her living room between L.H. and Appellant.² Further, the fact that Appellant did not get to specifically question Frederick about the affidavit was not because it was excluded by the trial court but because she invoked her Fifth Amendment privilege not to testify. Contrary to Appellant’s argument, the State’s evidence against Appellant was strong. Even if the affidavit had been presented to the jury, and even if it read as defense counsel claimed, Frederick’s statements would not in all likelihood have carried much weight with the jury after they heard from the State’s witnesses. Based on defense counsel’s summary of the contents of the affidavit, for that is all we have to review, we find Frederick’s affidavit was not critical to Appellant’s defense. The affidavit would not have created a reasonable doubt where none existed before. 2 Frederick testified at Preliminary Hearing that her initial reaction to what she observed and learned from L.H. was to grab a baseball bat and smash out the windows of Appellant’s car before hitting Appellant with the bat. This conduct got the attention of neighbors who called 911 which resulted in Corporal Yates of the Midwest City Police Department responding to the scene. 17 Appellant has failed to show that Frederick’s affidavit was admissible evidence under the regularly applied rules of evidence and that the exclusion of that affidavit denied him the opportunity to present a defense. The exclusion of the affidavit did not violate Appellant’s right to present a defense. Accordingly, we find no plain error. This proposition is denied In Proposition V, Appellant contends he was denied a fair trial by prosecutorial misconduct. He correctly concedes that none of the challenged comments were met with contemporaneous objections at trial and that our review is for plain error under the standard set forth above. See Malone U. State, 2013 OK CR 1, “I 40, 293 P.3d 198, 211. 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, I 21, 358 P.3d 280, 286. Relief will be granted on claims of prosecutorial misconduct only where the prosecutor committed misconduct that SO infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdict should not be relied upon. Id. 18 Appellant first argues that during closing argument, the prosecutor improperly gave his personal opinion of guilt. Generally, prosecutors are to refrain from giving their opinion as to guilt. Owens U. State, 2010 OK CR 1, IT 17, 229 P.3d 1261, 1267-68. However, when that opinion is reasonably based on the evidence, there is no error. Id. Any prosecutor is going to tell the jury in closing argument what he or she thinks the evidence showed. Id. It is only error when the prosecutor exhorts the jury to abandon its duty to consider the evidence and convict based only on the prosecutor’s opinion. Id. See also Williams U. State, 2008 OK CR 19, “I 107, 188 P.3d 208, 228. Further, when a defendant testifies, a prosecutor’s comments about inferences that can be drawn from that testimony are permissible. Dodd U. State, 2004 OK CR 31, I 78, 100 P.3d 1017, 1041. Contrary to Appellant’s argument, this case is distinguishable from Mitchell U. State, 2006 OK CR 20, 136 P.3d 671 where this Court found the prosecutor’s pointing and yelling at the defendant to be “highly improper and potentially prejudicial.” 2006 OK CR 20, 9 101, 136 P.3d at 710. There is no indication of such conduct by the prosecutor in the present case. The prosecutor’s comments were reasonable inferences from the evidence. 19 Appellant also claims the prosecutor improperly aligned himself with the victim by saying he had a “duty to L.H.” It is improper for the prosecutor to align himself with the victim. See DeRosa v. State, 2004 OK CR 19, I 60, 89 P.3d 1124, 1146. However, within the context of the entire trial, the isolated comment in this case was not sufficient to deny Appellant a fair trial. Comments regarding whether a child would make up accusations like those made against Appellant and the extent of a child’s knowledge of sexual matters were made in response to defense counsel’s questioning and closing arguments questioning the victim’s credibility and veracity. Comments and argument, which were “invited” and do no more than “respond substantially in order to right the scale”, do not warrant reversing a conviction.” Warner U. State, 2006 OK CR 40, I 182, 144 P.3d 838, 889. Finally, Appellant claims the prosecutor improperly sought sympathy for the victim in order not only to return a guilty verdict, but to ensure a long sentence. The prosecutor’s sentencing request was not error. An opinion on punishment is different from an opinion on guilt. Prosecutors are to refrain from giving their opinion as to guilt, see Bryson U. State, 1994 OK CR 32, IT 45, 876 P.2d 240, 257; but 20 they may comment on punishment and make a sentence recommendation, see Bernay v. State, 1999 OK CR 37, II 65, 989 P.2d 998, 1014. Comments that the alleged criminal act would affect the victim for the rest of her life have been found reasonable inferences on the evidence and within the wide latitude permitted on closing argument. Croan v. State, 1984 OK CR 69, I 10, 682 P.2d 236, 238. The comments in the present case though were very close to blatant appeals for sympathy. However, any error in those comments did not impact the outcome of the trial. The jury was instructed not to let sympathy, sentiment, or prejudice enter their deliberations. There is no indication the guilty verdict in this case was based on sympathy or sentiment instead of the evidence, and the jury recommended only a thirty-five (35) year sentence in the face of the State’s request for a life sentence. Having thoroughly reviewed Appellant’s challenges to the prosecutor’s conduct individually and cumulatively, we find the prosecutor’s conduct was not SO improper or prejudicial SO as to have infected the trial SO that it was rendered fundamentally unfair. Any 21 errors found in the prosecutor’s arguments do not rise to the level of plain error and this proposition is denied. Finally, 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 v. State, 2018 OK CR 14, I 20, 422 P.3d 782, 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. 22 AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE CINDY H. TRUONG, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL DON JACKSON DANNY JOSEPH KRISTEN HARTMAN OKLA. INDIGENT DEFENSE 3130 N.W. 23RD ST. P.O. BOX 926 OKLAHOMA CITY, OK 73107 NORMAN, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT DAVID W. PRATER MIKE HUNTER DISTRICT ATTORNEY ATTORNEY GENERAL OF RYAN STEPHENSON OKLAHOMA McKENZIE McMAHAN JULIE PITTMAN ASST. DISTRICT ATTORNEYS ASST. ATTORNEY GENERAL 320 ROBERT S. KERR, STE. 505 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73012 OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur in Result HUDSON, J.: Concur ROWLAND, J.: Concur in Result RA 23

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