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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JUSTIN WILLIAM DUNLAP, NOT FOR PUBLICATION ) Appellant, ) ) V. ) Case No. F-2018-888 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA FEB – 6 2020 SUMMARY OPINION JOHN D. HADDEN LUMPKIN, JUDGE: CLERK Appellant, Justin William Dunlap, was tried by the court and convicted of Count 1, First Degree Rape by Instrumentation of a Victim under the Age of Fourteen, in violation of 21 0.S.2001, § 1114,1 in Creek County District Court, Case No. CF-2017-71.2 The trial court sentenced Appellant to ten years imprisonment. From this judgment and sentence Appellant appeals. 1 Appellant was also convicted of Count 2, Lewd or Indecent Acts to a Child under the Age of Sixteen and Counts 3 and 4, First Degree Rape by Instrumentation of a Victim under the Age of Fourteen, but these convictions were dismissed at sentencing as the statute of limitations ran on those offenses prior to filing of the Information herein. 2 Appellant will be required to serve 85% of his sentence before becoming eligible for parole. 21 O.S.Supp.2015, § 13.1. 1 Appellant raised the following propositions of error in this appeal: I. The record supporting a waiver of a trial by jury was insufficient. II. The testimony of DH was not credible enough to meet the standard of beyond a reasonable doubt; thus, the conviction must be reversed. III. Prosecutorial misconduct cost appellant a fair trial. IV. The sentence was excessive. V. The defense was prohibited from presenting a defense. VI. Appellant was denied his federal and state constitutional rights to a speedy trial. VII. Mr. Dunlap’s competency should have been tested under standard procedures. VIII. A conflict of interest regarding defense counsel deprived Appellant of a fair trial. IX. Ineffective assistance of counsel deprived Appellant of a fair trial. X. Cumulative error deprived Appellant of a fair trial. After thorough consideration of this proposition 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. 2 Appellant contends in his first proposition that the record is insufficient to show his waiver of jury trial was knowing and voluntary. As Appellant failed to object prior to the non-jury trial, review of this claim is for plain error as set forth in Simpson U. State, 1994 OK CR 40, 876 P.2d 690. Under the Simpson test, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. Id., 1994 OK CR 40, 99 3, 11, 23, 30, 876 P.2d at 694-95, 698-701. 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., 1994 OK CR 40, I 30, 876 P.2d at 701. “A defendant may waive his right to jury trial. There must be a clear showing that the waiver was competent, knowing and intelligent.” Hinsley U. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355. “A record showing an intelligent, competent and knowing waiver of a fundamental right is mandatory. Anything less is not a waiver. It is incumbent upon the trial court to make a record of a waiver of a fundamental right, and all doubts concerning waiver must be resolved in the accused’s favor.” Id. “The better practice is for a 3 defendant to make the waiver personally, in open court, orally or in writing, and the trial court must inquire to be sure the waiver is expressly and intelligently made.” Id. The record reflects a written waiver of jury trial, dated February 20, 2018, executed by Appellant, his attorney, the assistant district attorney and Judge Douglas Golden. The written waiver indicates Appellant understood all of the rights he was giving up by signing the waiver and it indicates his attorney explained all of Appellant’s rights and the waiver of those rights to him. The document further shows the trial court questioned Appellant and found he was competent to make the waiver, fully understood the waiver and made the decision to waive jury trial of his own free will. Moreover, prior to the commencement of the non-jury trial, the trial court, attorneys and Appellant discussed the ranges of punishment of the charged offenses and the fact that the State made a plea offer which was rejected by Appellant. At no time during this discussion did Appellant voice any dissatisfaction with his waiver of jury trial or express any confusion about the proceedings. Based upon this record, Appellant’s waiver of jury trial was knowing and voluntary. There was no error. Proposition I is denied. 4 To the extent Appellant complains about his waiver of jury trial in his affidavit attached to the Motion for Evidentiary Hearing, such complaint is not part of the record before this Court concerning the allegations within this proposition. Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), solely allows this Court to supplement the record on appeal with items admitted during proceedings in the trial court but which were not designated or actually included in the record on appeal. Bench U. State, 2018 OK CR 31, I 186, 431 P.3d 929, 974. The affidavit was clearly not part of the trial record. Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), allows supplementation of the record with extra-record materials only with regard to ineffective assistance of counsel claims. See Coddington U. State, 2011 OK CR 17, 1 20, 254 P.3d 684, 698 (Rule 3.11(B) does not allow supplementation of the record with extra- record materials in support of a substantive claim not involving ineffective assistance of counsel). This proposition has nothing to do with ineffective assistance of counsel. While clumsily stated, in Proposition II Appellant challenges the sufficiency of the evidence to support his conviction. He argues D.H.’s 5 testimony was inconsistent in a few instances. This Court follows the standard for the determination of the sufficiency of the evidence which the United States Supreme Court set forth in Jackson U. Virginia, 443 U.S. 307 (1979). Easlick V. State, 2004 OK CR 21, IT 15, 90 P.3d 556, 559; Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04. Under this test, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; Easlick, 2004 OK CR 21, I 5, 90 P.3d at 558-59; Spuehler, 1985 OK CR 132, I 7, 709 P.2d at 203-04. A reviewing court must accept all reasons, inferences, and credibility choices that tend to support the verdict. Taylor U. State, 2011 OK CR 8, I 13, 248 P.3d 362, 368. “The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts and the trier of facts may believe the evidence of a single witness on a question and disbelieve several others testifying to the contrary.” Davis U. State, 2011 OK CR 29, I 83, 268 P.3d 86, 112-13. “Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction SO long as, from the 6 inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt.” Matthews U. State, 2002 OK CR 16, I 35, 45 P. .3d 907, 919-20. The State had to prove Appellant committed the crime of First Degree Rape by Instrumentation beyond a reasonable doubt. The elements of that crime as pertinent here are: “First, penetration of the vagina; Second, of a child under fourteen years of age; Third, by a part of the human body other that the penis.” Instruction No. 4- 126, OUJI-CR(2d). D.H. testified Appellant inserted his fingers into her vagina when she was thirteen. Appellant admitted to police he rubbed her pubic area and her breasts and that he had a problem and was seeking counseling. Furthermore, Appellant texted D.H. after she disclosed his abuse to police and told her he was sorry he hurt her. Contrary to Appellant’s argument, the record reveals no inconsistency in D.H.’s testimony about where the abuse occurred. D.H. testified at preliminary hearing that the abuse occurred when Appellant tucked her into bed at night. Her trial testimony was identical. While it is true D.H. never specified at preliminary hearing 7 which bed she was in when Appellant put her hand on his penis, she was never asked that question. She was only asked if there was additional abusive contact other than the digital penetration of her vagina. When she specified at trial that the additional contact occurred in her parents’bed, her statement was not inconsistent with her prior testimony. See Mitchell U. State, 2011 OK CR 26, I 104, 270 P.3d 160, 184 (record did not support defendant’s claim that witness made prior inconsistent statements). Appellant also claims D.H.’s testimony regarding her disclosure of his abuse was inconsistent with other information not presented at trial. His argument in that regard relies upon materials attached to his Motion for Evidentiary Hearing. These are not properly before this Court with regard to our consideration of this issue and will not be considered, as fully set forth in Proposition I. While Appellant purports to take issue with the trial court’s determination of guilt, what he really takes issue with is the trial court’s credibility choices. Having thoroughly examined the record, the evidence presented was sufficient for the trial court to find that Appellant committed first- degree rape by instrumentation of a child under fourteen. Proposition II is denied. 8 In his third proposition, Appellant maintains prosecutorial misconduct denied him a fair trial. He concedes he has waived review of this claim for all but plain error. Malone v. State, 2013 OK CR 1, T 40, 293 P.3d 198, 211. This Court utilizes the plain error test found in Simpson, as fully set forth in Proposition I. This Court reviews claims of prosecutorial error “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.” Mitchell U. State, 2010 OK CR 14, I 97, 235 P.3d 640, 661. Moreover, prosecutors have wide latitude in closing argument to discuss the evidence and reasonable inferences therefrom. Hanson U. State, 2003 OK CR 12, I 13, 72 P.3d 40, 49. Having thoroughly reviewed the complained of statements, we find there was no error. The prosecutor did not misstate the evidence during closing argument. Sanders v. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286; Langley U. State, 1991 OK CR 66, I 24, 813 P.2d 526, 531. The prosecutor did not improperly refer to Appellant’s failure to testify. While somewhat awkwardly phrased, the comments were not improper, but merely stated that the State’s evidence was 9 uncontested. Cf. Mitchell U. State, 1994 OK CR 70, I 40, 884 P.2d 1186, 1201-02 (“Comment on a defendant’s access to evidence and witnesses is permissible.”). Finally, the prosecutor did not vouch for D.H.’s credibility. Mitchell U. State, 2018 OK CR 24, I 31, 424 P.3d 677, 686; McElmurry U. State, 2002 OK CR 40, I 136, 60 P.3d 4, 31. Reviewing the entire record, the cumulative effect of the prosecutor’s comments did not deprive Appellant of a fair trial. Daniels U. State, 2016 OK CR 2, I 13, 369 P.3d 381, 385. Therefore, we find that Appellant has not shown that error, plain or otherwise, occurred. Proposition III is denied. In Proposition IV, Appellant argues his sentence is excessive. This Court holds that for a sentence which falls within statutory guidelines to be excessive, it must be SO excessive under the facts and circumstances of the case SO as to shock the conscience of the Court. Burgess V. State, 2010 OK CR 25, I 22, 243 P.3d 461, 465; Sanders U. State, 2002 OK CR 42, I 18, 60 P.3d 1048, 1051. In Sanders, this Court expressly rejected the “proportionality” standard of review. Sanders, 2002 OK CR 42, II 19, 60 P.3d at 1050. This Court also declined to adopt the proportionality standard of review and outlined its reasons for maintaining its “shock the conscience” 10 standard in Rea U. State, 2001 OK CR 28, 91 5, 34 P.3d 148, 149, as follows: Oklahoma law permits the sentencing body (judge or jury) to impose a sentence anywhere within a specified statutory range. Given that our state legislature has afforded such broad discretion to the sentencer, our “shock the conscience” standard provides an appropriate scope of review. Appellant propounds various reasons why he contends his sentence is excessive: the crime was rape by instrumentation, he had no prior criminal history, he had good employment history and he sought counseling, despite maintaining his innocence. What the record shows is that Appellant systematically and routinely sexually abused a little girl who considered him to be her father. This abuse spanned a period of over ten years. The trial court’s ten year sentence for Appellant’s disgusting crime is almost the minimum he could have received. Nothing about his sentence could possibly shock this Court’s conscience. Proposition IV is denied. Appellant asserts in his fifth proposition that he was denied the right to present a defense because the trial court disallowed the admission of Defendant’s Exhibit 2, Sonya Dunlap’s video interview 11 with police. We review this claim for an abuse of discretion. Goode U. State, 2010 OK CR 10, I 44, 236 P.3d 671, 680. “An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts.” State U. Farthing, 2014 OK CR 4, I 4, 328 P.3d 1208, 1209. A defendant has the right to present a defense, but he must comply with rules of procedure and evidence which are designed to assure fairness and reliability in criminal proceedings. Crane v. Kentucky, 476 U.S. 683, 689-90 (1986); Simpson U. State, 2010 OK CR 6, I 9, 230 P.3d 888, 895. “[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Holmes U. South Carolina, 547 U.S. 319, 324 (2006). The question of whether a defendant was denied the right to present a defense turns upon whether the evidence the defendant sought to use in support of the defense was admissible. Davis, 2011 OK CR 29, I 156, 268 P.3d at 125. During direct examination, defense counsel asked Dunlap, “Do you recall telling Detective Nichols that [D.H.] had told you that when 12 her father touched her, that would occur when she would come to bed with you and [Appellant]?” Dunlap responded, “No, the comment-what I understood is whenever he would tuck her into bed, which he did just about every night.” After a couple more times of trying to get Dunlap to admit that she told police that D.H. told her the abuse occurred when she was in bed with her parents, Dunlap responded, “I honestly don’t remember.” Thereafter, defense counsel attempted to admit State’s Exhibit 2. The State objected based upon hearsay, relevance and cumulativeness of the exhibit to Dunlap’s testimony. Defense counsel argued that D.H. testified the abuse always occurred in her bed, but counsel believed, on State’s Exhibit 2, that Dunlap told police that D.H. told her the abuse occurred when D.H. was in bed with her parents. The trial court asked defense counsel if he was trying to use the exhibit to impeach another witness’s testimony and defense counsel responded affirmatively that he was. The trial court ruled that Dunlap’s statement could not be used to impeach D.H.’s testimony and that the exhibit could not be admitted since Dunlap merely testified she did not remember making the statement. We find this ruling was correct. 13 A witness’s testimony may be impeached by introducing extrinsic evidence of a prior inconsistent statement of that witness, provided the witness “is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon.” 12 O.S. 2011, § 2613(B); Stiles U. State, 1999 OK CR 19, I 6, 989 P.2d 955, 958. See also Grayson v. State, 1987 OK CR 277, I 12, 747 P.2d 971, 974 (where witness’s prior statement did not conflict with her trial testimony, the trial court did not abuse its discretion by disallowing impeachment with the prior statement). Dunlap did not admit or deny that she made the subject previous statement, only that she did not remember making such a statement. Section 2613 plainly states that the statement sought to be used as impeachment evidence against the witness must be the witness’s own statement. Defense counsel wanted to use Dunlap’s statement to police about what D.H. told her in order to impeach D.H.’s trial testimony that the abuse happened in her bed except for one time. This was improper impeachment. There was no abuse of the trial court’s discretion. Proposition V is denied. In Proposition VI, Appellant contends his speedy trial rights 14 were denied. He argues more than one year passed between the time of his arrest and his trial and the State was responsible for the majority of the delay in his case being tried. The Supreme Court holds that the speedy trial right attaches when a defendant is arrested or indicted, whichever comes first. United States v. Marion, 404 U.S. 307, 320-21 (1971). In Barker U. Wingo, 407 U.S. 514, 530 (1972), the Court provided a four-part balancing test for a speedy trial claim: A Sixth Amendment speedy trial claim is assessed by balancing: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant. The Barker Court further held that none of these factors alone is sufficient to find deprivation of the right to a speedy trial, but must be considered together with other relevant circumstances to make the determination of that deprivation. Id., at 533. Generally, courts have found a post-accusation delay near one year enough to trigger the Barker inquiry. Doggett U. United States, 505 U.S. 647, 652 n. 1 (1992). Oklahoma follows this line of cases and has enacted legislation incorporating the Barker test in 22 O.S.2011, § 812.1, et. seq. 15 Section 812.2(A)(2) sets forth nine exceptions which can warrant delay of a trial with no speedy trial implications. These are: a. the delay is the result of the application of the accused or an attorney on behalf of the accused, b. the delay is the result of the fault of the accused or the attorney for the accused, C. the accused is incompetent to stand trial, d. a proceeding to determine the competency of the accused to stand trial is pending and a determination cannot be completed within the time limitations fixed for trial, e. there is material evidence or a material witness which is unavailable and that reasonable efforts have been made to procure such evidence or witness, and there are reasonable grounds to believe that such evidence or witness can be obtained and trial commenced within a reasonable time, f. the accused is charged as a codefendant or coconspirator and the court has determined that the codefendants or coconspirators must be tried before separate juries taken from separate jury panels, g. the court has other cases pending for trial that are for persons incarcerated prior to the case in question, and the court does not have sufficient time to commence the trial of the case within the time limitation fixed for trial, h. the court, state, accused, or the attorney for the accused is incapable of proceeding to trial due to illness or other reason and it is unreasonable to reassign the case, and i. due to other reasonable grounds the court does not have sufficient time to commence the trial of the case within the time limit fixed for trial. Where both the State and the defendant are accountable for delays 16 in trial, and the delays are for good cause, this factor weighs against the defendant. Lott U. State, 2004 OK CR 27, I 24, 98 P.3d 318, 331. A defendant may waive his right to a speedy trial. See Stohler U. State, 1988 OK CR 52, I 5, 751 P.2d 1087, 1089 (defendant waived his right to speedy trial); Fain U. State, 1972 OK CR 317, “I 10, 503 P.2d 254, 255 (right to speedy trial may be waived by defendant). The third Barker factor is interpreted by this Court to be an inquiry into whether a defendant waived his speedy trial right. Simpson v. State, 1982 OK CR 35, I 6, 642 P.2d 272, 275. In the instant case, the time between Appellant’s arrest and trial was about sixteen months. Thus, this lapse of time warrants a Barker inquiry. Appellant asserts the lapse of time was due entirely to the State and the trial court. The record belies this assertion. The charges against Appellant stemmed from acts which occurred between 1997 and 2007 at three different locations. The discovery of additional evidence led to the filing of a Third Amended Information on September 22, 2017. Preliminary hearing occurred on November 14, 2017. Thereafter, the State filed the Fourth Amended Information to conform to the evidence presented at preliminary hearing upon which Appellant was arraigned on November 28, 2017. The case was set for 17 trial on March 5, 2018. On February 12, 2018, Appellant requested a court order for the Department of Human Services (DHS) to produce records for an in camera review before the trial court. The trial court struck the case from the March 5, 2018, jury docket but set a date of March 7, 2018, for a hearing regarding the DHS records. This hearing was stricken, apparently by agreement of the parties in order to allow for plea negotiations. The parties appeared before the court on April 3, 2018, presumably after having engaged in plea negotiations which were unsuccessful, and the trial court set a pre-trial date of May 1, 2018. Ultimately, Appellant’s trial occurred on June 13, 2018. Throughout the procedural course of this case, Appellant lodged no objection based upon speedy trial. Some delays were due to the discovery of additional evidence warranting amendment of the Information against Appellant and some were due to Appellant requesting a preliminary hearing and to Appellant’s request for the production of DHS records. Clearly, none of the delays were due to bad faith on the State’s part or for any improper reason and Appellant makes no such claim. The delays were “were necessary to further the ends of justice and ensure that Appellant received a fair and impartial 18 trial.” Lott, 2004 OK CR 27, 1 24, 98 P.3d at 331. Thus, this Barker factor weighs in favor of the State. The record further reveals that Appellant made no formal demand for a speedy trial. While the fact of Appellant’s incarceration during the pendency of his trial serves as his demand, this factor is accorded little weight in the balancing process. McDuffie U. State, 1982 OK CR 150, I 8, 651 P.2d 1055, 1056. Therefore, this factor is neutral. The last factor considered is that of prejudice. Barker sets forth three types of prejudice which may occur in denial of the right to a speedy trial: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. The most important one is the last. Id. The record demonstrates Appellant had a preliminary hearing and also obtained DHS records he believed would support his defense. Appellant cites nothing in the record which demonstrates he suffered any impairment of his defense. The record fails to show Appellant suffered any prejudice because of the lapse of time which occurred prior to trial. Appellant attempts to rely upon an affidavit attached as part of 19 his Motion for Evidentiary Hearing in support of this claim. The affidavit is not properly before this Court for consideration of this proposition. Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), solely allows this Court to supplement the record on appeal with items admitted during proceedings in the trial court but which were not designated or actually included in the record on appeal. Bench, 2018 OK CR 31, T 186, 431 P.3d at 974. The affidavit was clearly not part of the trial record. Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), allows supplementation of the record with extra-record materials only with regard to ineffective assistance of counsel claims. See Coddington, 2011 OK CR 17, I 20, 254 P.3d at 698 ((Rule 3.11)(B) does not allow supplementation of the record with extra-record materials in support of a substantive claim not involving ineffective assistance of counsel). This proposition has nothing to do with ineffective assistance of counsel. Having thoroughly examined the record, we find Appellant was not denied his right to a speedy trial. Proposition VI is denied. In his seventh proposition, Appellant argues his competency should have been evaluated prior to trial, presumably at the trial 20 court’s behest. However, Appellant relies solely upon an affidavit attached as part of his Motion for Evidentiary Hearing in support of this claim and not upon any portion of the trial record. The affidavit is not properly before this Court for consideration of this proposition. As fully set forth in Propositions I and VI above, such an affidavit may only be considered with regard to an ineffective assistance of counsel claim. Appellant does not claim in this proposition that counsel was ineffective for failing to request a competency evaluation. This proposition is waived from appellate review. In Proposition VIII, Appellant maintains his counsel had a conflict of interest which should have been addressed prior to trial. Appellant relies solely upon his affidavit attached to the Motion for Evidentiary Hearing in support of this allegation. The affidavit is not properly before this Court for consideration of this proposition to the extent Appellant alleges a claim that the trial court should have sua sponte addressed a conflict issue as there is nothing in the appeal record to support the allegation. As fully set forth in Propositions I, VI and VII above, such an affidavit may only be considered with regard to an ineffective assistance of counsel claim. This proposition is waived from appellate review. To the extent Appellant argues 21 counsel was ineffective for failing to address any conflict issue, this argument will be addressed in the discussion of his Motion for Evidentiary Hearing. Appellant contends his counsel was ineffective in Proposition IX. Specifically, he argues counsel was ineffective for: 1) failing to argue that the allegations against Appellant arose because he “was divorcing Sonya”; 2) failing to adequately challenge D.H.’s credibility; 3) failing to utilize DHS reports; 4) failing to present evidence that “Appellant suffered from sleepwalking”; 5) failing to object that the prosecutor “entered alleged facts into evidence”; 6) failing to object to prosecutor’s mention of Appellant’s failure to testify; and 7) failing to object when the prosecutor bolstered D.H.’s testimony (Appellant’s Brief, pp. 40-42). Contentions 1, 2 and 4 rely upon materials attached to the Motion for Evidentiary Hearing. Contention 3 relies upon DHS materials included in the record but not admitted at trial. Contentions 5-7 rely solely upon the record and were addressed in Proposition III. Appellant makes other claims which appear only in the Motion for Evidentiary Hearing and are supported only by materials attached to the motion. These are that counsel was ineffective for: failing to 22 have Appellant’s competency evaluated; and failing to present evidence that Appellant suffered from Peyronie’s disease. We also address the claim attempted to be raised in Proposition VIII, that counsel was ineffective for failing to address a conflict of interest. This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Malone v. State, 2013 OK CR 1, 9 14, 293 P.3d 198, 206. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Id., (citing Strickland, 466 U.S. at 687. We begin our analysis with the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Appellant must overcome this presumption and demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Bland U. State, 2000 OK CR 11, 113, 4 P.3d 702, 731 (citing Strickland, 466 23 U.S. at 697). To demonstrate prejudice an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s unprofessional errors. Id., 2000 OK CR 11, 9 112, 4 P.3d at 731. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). Contemporaneous with the filing of his brief, Appellant filed his Motion for an Evidentiary Hearing Pursuant to Rule 3.11. Appellant asserts that he is entitled to an evidentiary hearing under both Rule 3.11(A) and 3.11(B)(3)(b,) Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). We set forth the parameters of these rules in Bench, 2018 OK CR 31, TI 186-87, 431 P.3d at 974, as follows: This Court analyzes requests to supplement the record which are based upon ineffective assistance of counsel claims pursuant to Rule 3.11(B). Day U. State, 2013 OK CR 8, 10, 303 P.3d 291, 297. Rule 3.11(A) solely allows this Court to supplement the record on appeal with items admitted during proceedings in the trial court but which were not designated or actually included in the record on appeal. Id.; McElmurry U. State, 2002 OK CR 40, 167, 60 P.3d 4, 36 (holding Rule 3.11(B) strictly limits supplementation under Rule 3.11(A to matters which were presented to the trial court). Rule 3.11(A) is not intended to allow parties to bolster a trial record with extra-record documents or 24 evidence. Id. In contrast, Rule 3.11(B)(3)(b) enables an appellant to qualify for an evidentiary hearing to support his or her claim of ineffective assistance of counsel by submitting affidavits and extra-record documents attached to his application for evidentiary hearing. Hancock V. State, 2007 OK CR 9, 9 112, 155 P.3d 796, 822, overruled on other grounds by Williamson U. State, 2018 OK CR 15, 422 P.3d 752. As Appellant has not argued for supplementation with items admitted during proceedings in the trial court but which were not designated or actually included in the record on appeal, we find that his request for supplementation under Rule 3.11(A) must be denied. We review his request to supplement the record in support of his Sixth Amendment claim pursuant Rule 3.11 (B) (3) (b). As in Bench, Appellant makes no claim that his extra-record materials were admitted in the trial court but were not designated or that the materials were actually included in the appeal record. Therefore, his request to supplement under Rule 3.11 (A) is denied. This Court reviews an application or motion under Rule 3.11(B)(3)(b) pursuant to the analysis set forth in Simpson, 2010 OK CR 6, I 53, 230 P.3d at 905-06. We review and consider an appellant’s application and affidavits along with other attached non-record evidence to determine whether the appellant has shown clear and convincing evidence of a strong possibility that counsel was ineffective and should be afforded further opportunity to present evidence in support of his claim. Id. 25 We first address the allegations of ineffective assistance of counsel set forth in Proposition IX, contentions 1-7. In contention 1, Appellant claims that counsel was ineffective for failing to argue that the allegations against Appellant arose (from D.H.’s disclosure) because he “was divorcing Sonya.” The only argument Appellant makes in support of this contention is that “[t]he separation prior to the divorce preceded the moment in time when [D.H.] alleged that Appellant had touched her improperly” and “no attempt was made to provide evidence of the date of the separation between Justin and Sonya.” The sole support referenced for this argument is Exhibit C attached to the Motion for Evidentiary Hearing, which is a divorce decree between Appellant and Sonya Dunlap, filed June 6, 2016. The disclosure date is not contained in the record neither does the divorce decree. This Court cannot “make the leap necessary to find prejudice in this case based on speculation alone.” Fulgham U. State, 2016 OK CR 30, I 17, 400 P.3d 775, 780. “[T]his Court cannot find Strickland prejudice resulted through assumptions and speculation. Appellant has failed to present any evidence demonstrating the reasonable probability of a different result in the proceedings. Appellant’s ineffective assistance of counsel claim is therefore conclusory and 26 speculative.” Id., 2016 OK CR 30, I 18, 400 P.3d at 780-81. As in Fulgham, Appellant’s claim is too speculative to support a finding of prejudice. Accordingly, this claim is denied. Appellant next argues in contention 2, that counsel was ineffective for failing to adequately challenge D.H.’s credibility with regard to why she disclosed his abuse of her to authorities. At trial, D.H. testified she disclosed Appellant’s abuse because she learned that her brother and her niece, aged six, were planning to move into the house with Appellant and Ms. Dunlap. Appellant provides Exhibits D and E attached to his Motion for Evidentiary Hearing in support of his contention that his son Thor was the brother D.H. referred to in her testimony and that Thor owned a home and lived in it at that time. He maintains this evidence would have called D.H.’s testimony into question and precluded his conviction. As an initial matter, D.H. never identified which brother was going to move in with her mother and Appellant. Thus, it is pure speculation that Thor was the referenced brother. While Exhibit D purports to show Thor with a daughter of the approximate age, the record is silent as to the identity of the brother D.H. referred to. Appellant never mentions this issue in his affidavit which is Exhibit 27 A attached to his Motion for Evidentiary Hearing. However, even if Thor was the correct brother, the fact that he owned property in Creek County does not preclude him from moving in with his parents. Again, as in Fulgham, Appellant’s claim is too speculative to support a finding of prejudice. Accordingly, this claim is denied. In contention 3, Appellant states that counsel was ineffective for failing to utilize DHS records. These records are part of the appeal record, but they were not admitted at trial. The trial court reviewed them and found them to be outside the scope of the trial. Appellant argues, with a single citation to one of these documents numbered in the original record, 3 that all of his children told a DHS worker they felt safe in the family home. He is apparently of the belief that this calls D.H.’s credibility into question. While this page does contain the DHS worker’s summary that all the children reported they felt safe in the family home, the actual report reflects that all four children were interviewed together. Thus, it contains no individual interview summary of D.H. The fact that D.H. significantly delayed reporting Appellant’s abuse of her was squarely before the trial court. 3 The reference, O.R. 154, is incorrect as it is O.R. 153 where this summary appears. 28 Therefore, this single entry in the DHS report was cumulative to other evidence. Moreover, the DHS records chronicle a history of child abuse and neglect referrals spanning sixteen years, with five confirmations of the allegations. It defies logic to assert they would have been helpful to Appellant in any manner. The record further shows defense counsel received these DHS records. His choice not to utilize them was clearly a reasonable strategic one. Cf. Davis, 2011 OK CR 29, I 209, 268 P.3d at 134 (It is reasonable for counsel to keep “counterproductive” information from the jury). This claim is denied. Appellant argues in contention 4 that counsel was ineffective for failing to present evidence that Appellant suffered from sleepwalking. Although this contention is contained in Proposition IX of Appellant’s Brief, there is no citation to the record or extra-record materials to support it. Accordingly, this claim is waived. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). See e.g. Tryon v. State, 2018 OK CR 20, 57, 423 P.3d 617, 636 (appellant failed to cite to the record where the complained of photographs were admitted; thus the claim regarding the photographs was waived pursuant to Rule 3.5(A)(5)). 29 We next address Appellant’s allegation that counsel was ineffective for failing to object to prosecutorial misconduct, contentions 5-7 above. As set forth in Proposition III, none of the complained of statements constituted error. Because we found no error in Proposition III, Appellant has failed to show his counsel was ineffective. Conroy- Perez U. State, 2019 OK CR 5, q14, 440 P.3d 64, 67. Appellant makes ineffective assistance of counsel claims which are not alleged in his appeal brief and appear only in the Motion for Evidentiary Hearing. These are that counsel was ineffective for: failing to have Appellant’s competency evaluated; and failing to present evidence that Appellant suffered from Peyronie’s disease. While Appellant references Proposition VII in his appeal brief in support of the failure to have competency evaluated allegation, that proposition did not allege counsel was ineffective for failing to have Appellant’s competency evaluated, nor did Proposition IX. With regard to the allegation of failure to present evidence that Appellant suffered from Peyronie’s disease, only Exhibits A and F to the Motion for Evidentiary hearing are cited in support and the allegation was not contained in Proposition IX. These allegations are waived. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 30 22, Ch. 18, App. (2019) (requiring a motion for evidentiary hearing be supported with a proposition of error in the brief-in-chief alleging ineffective assistance of counsel for the reason set forth in the request for evidentiary hearing). See Bench, 2018 OK CR 31, I 222, 431 P.3d 929, 981 (“As Appellant has not raised a claim of ineffective assistance of counsel in his brief predicated upon this assertion, we find that Appellant has waived appellate review of his request for supplementation of the record with this affidavit.”). Finally, to the extent Proposition VIII could be said to allege counsel was ineffective because he had an actual conflict of interest with Appellant, the allegation is without merit. He relies upon Exhibit A, his affidavit, attached to his Motion for Evidentiary Hearing in support of this allegation. This Court holds that “[t]o prevail on an ineffective assistance of counsel claim based on a conflict of interest, a defendant who raised no objection at trial need not show prejudice, but ‘must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Carey U. State, 1995 OK CR 55, I 10, 902 P.2d 1116, 1118 (quoting Cuyler U. Sullivan, 446 U.S. 335, 349 (1980)). See also Banks v. State, 1991 OK CR 51, T 35, 810 P.2d 1286, 31 1296 abrogated on other grounds by Rogers U. State, 1995 OK CR 8, 890 P.2d 959 (noting that “when a contemporaneous objection is not made, an appellant must establish that an actual conflict of interest, and not the mere possibility of a conflict of interest, adversely [affected] defense counsel’s performance in order to cause the reversal of a criminal conviction.”). “An actual conflict of interest exists only if counsel was forced to make choices advancing interests to the detriment of his client.” Workman v. Mullin, 342 F.3d 1100, 1107 (10th Cir. 2003) (internal quotations omitted). Appellant avers in Exhibit A that his counsel worked in the same office with attorneys who represented his son at some time in the past. These attorneys are not named. Appellant further states he was critical of those attorneys’ representation of his son and that his counsel consulted with those attorneys about Appellant’s case. He maintains he asked his counsel to cease representing him because of this. These statements form the basis of Appellant’s conflict of interest claim. Even assuming Appellant’s statements are true, the fact that his attorney worked in the same office as attorneys who previously represented his son on an unrelated matter does not equate to a conflict of interest. Indeed, Appellant makes no argument 32 regarding how this factual scenario gives rise to a conflict of interest claim. In any event, nothing in the record or in his affidavit shows defense counsel advanced any interests at trial other than Appellant’s or that his representation of Appellant was adversely affected as contemplated by Cuyler and Carey. We find there was no conflict of interest. Appellant has failed to show his counsel was ineffective and Proposition IX is denied. Additionally, Appellant has not shown clear and convincing evidence of a strong possibility that counsel was ineffective based upon the allegations contained in his Motion for Evidentiary Hearing. Thus, we find he has not shown entitlement to an evidentiary hearing on his claims of ineffective assistance of counsel. Appellant’s Motion for Evidentiary Hearing is denied. In his last proposition, Appellant claims he is entitled to relief on a cumulative error basis. A cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Baird U. State, 2017 OK CR 16, I 42, 400 P.3d 875, 886. The record shows that no error occurred during the course of the trial in the present case. Therefore, no new trial or modification of sentence is warranted. Proposition X is denied. 33 DECISION The Judgment and Sentence of the District Court is hereby AFFIRMED. The Application for Evidentiary Hearing pursuant to Rule 3.11(B)(3)(b) is DENIED. 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 CREEK COUNTY THE HONORABLE DOUGLAS W. GOLDEN, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL EUGENE C. WINK LISBETH L. MCCARTY 732 EAST TAFT BOX 926 SAPULPA, OK 74066 NORMAN, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT WILLIAM BARTLEY LOGSDON MIKE HUNTER ASST. DISTRICT ATTORNEY ATTORNEY GENERAL OF 222 EAST DEWEY, #302 OKLAHOMA SAPULPA, OK 74066 TAYLOR L. LEDFORD COUNSEL FOR THE STATE ASST. ATTORNEY GENERAL 313 N.E. 21 ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur in Results KUEHN, V.P.J.: Concur in Part Dissent in Part HUDSON, J.: Concur ROWLAND, J.: Concur in Results RA 34 KUEHN, V.P.J., CONCURRING IN PART/DISSENTING IN PART: I concur in affirming Appellant’s judgment and sentence, but write separately to address the extra-record materials he submitted and the Majority’s discussion of them. Appellant raised several record-based claims. He also claimed trial counsel was ineffective for several reasons. Some of these reasons are based solely on the record, and some rely on extra-record materials. Besides an affidavit from Appellant, the materials include photocopies of social media screenshots and printouts from various internet sites. Extra-record material will be considered by this Court in conjunction with a claim of ineffective counsel. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App. (2020). Such material may also be considered by this Court in other limited contexts. See Rules 3.11(A), (B)(1), (B)(2), (B)(3)(a), id. Appellant liberally refers to his extra-record materials throughout his brief, not just in the ineffective-counsel claim. His motion presenting these materials refers to “Rule 3.11(A) and (B)(3)(b),” but his argument and prayer for relief are focused strictly on a claim of ineffective counsel. Appellant offers this Court no argument why it should consider these materials under Rule 3.11(A). Appellant’s use of Rule 3.11(A) as license to submit any matter whatsoever to this Court is misguided. His lengthy affidavit complains about every aspect of the criminal-justice system (including his appellate counsel), but offers little, if any, factual information that is directly relevant to issues in the appeal. 1 To make matters worse, Appellant’s ineffective-counsel claim (Proposition IX) does not present his complaints in an organized or detailed fashion. An ineffective- counsel claim may have several components, but it should clarify whether each one relies on the record of the proceedings below, or on information presented via Rule 3.11(B). I continue to take issue with the Majority’s description of Rule 3.11(A), and dissent to that part of the Opinion. By its own terms, 1 The fact that information is presented in a sworn affidavit will not necessarily make it proper extra-record material. For example, in Proposition VI, Appellant claims he was denied a speedy trial. He concedes he never demanded one. In his affidavit, he makes a passing complaint about being denied a speedy trial, and appellate counsel refers to it in her argument. But a general complaint is not the same as a factual basis for a legal claim. Appellant never claims trial counsel was ineffective for failing to communicate his demand for a speedy trial (assuming he made one), which would make the extra-record information reviewable under Rule 3.11(B)(3)(b). Hence, this Court is not obligated to consider that part of the affidavit. 2 Rule 3.11(A) is not limited to “items admitted during proceedings in the trial court but which were not designated or actually included in the record on appeal.” Slip Op. at 5. (Such material is in fact covered by Rule 3.11(B)(1)-(2).) The purpose of Rule 3.11(A) is to recognize rare and extenuating circumstances that might not fall under Rule 3.11(B). It is to be used sparingly. See Lamar U. State, 2018 OK CR 8, “I 42, 419 P.3d 283, 294-95; Day v. State, 2013 OK CR 8, “I 10, 303 P.3d 291, 297; Coddington U. State, 2011 OK CR 17, I 21, 254 P.3d 684, 698. This Court will use discretion when considering supplementary materials offered through Rule 3.11(A). I would deny supplementation here simply because Appellant fails to support his request with any argument, authority, or analysis. He must do more than just make a passing reference to the Rule as a justification for considering extra-record material. See Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals; Davis U. State, 2018 OK CR 7, “I 32, 419 P.3d 271, 282. I urge appellate counsel to be more circumspect in the supplementary materials they offer to this Court. 3

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