Philip Jan Cannon v The State Of Oklahoma

F-2018-923

Filed: Aug. 15, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Philip Jan Cannon appealed his conviction for Possession of Child Pornography. Conviction and sentence: twenty years imprisonment and a $25,000 fine. Judge John Canavan sentenced him. Cannon argued that improper comments by the prosecutor during closing arguments made his trial unfair, but the court found no serious error. The Court of Criminal Appeals affirmed his conviction.

Decision

The Judgment and Sentence of the district court 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.

Issues

• was there prosecutorial misconduct that deprived Cannon of his right to a fair trial?
• did the prosecutor's closing remarks constitute plain error affecting the outcome of the proceeding?
• was there an actual error in the prosecutor's comments during the trial?
• did the alleged misconduct seriously affect the fairness or integrity of the trial?

Findings

• relief is not required
• this claim is denied
• the Judgment and Sentence of the district court is AFFIRMED

F-2018-923

Aug. 15, 2019

Philip Jan Cannon

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Philip Jan Cannon was tried by a jury in the District Court of Pottawatomie County, Case No. CF-2016-541, for Possession of Child Pornography, in violation of 21 O.S.2011, § 1021.2. The jury found Cannon guilty and assessed punishment at twenty years imprisonment and a $25,000.00 fine. The Honorable John Canavan, District Judge, who presided over Cannon’s trial, sentenced him in accordance with the jury’s verdict.¹ Cannon appeals raising the following issue: (1) whether improper closing remarks by the prosecutor deprived him of a fair trial.

1 Under 21 O.S.Supp.2015, § 13.1, Cannon must serve 85% of his sentence of imprisonment before he is eligible for parole consideration. We find relief is not required and affirm the Judgment and Sentence of the district court.

1. Cannon complains that prosecutorial misconduct deprived him of his right to a fair trial. Because the comments at issue were not met with objection at trial, review on appeal is for plain error only. Harney v. State, 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. To be entitled to relief for plain error, an appellant must show: (1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. 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. Stewart v. State, 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514. [W]e evaluate the alleged 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 defendant² and the corresponding arguments of defense counsel. Hanson v. State, 2009 OK CR 13, ¶ 18, 206 P.3d 1020, 1028. Both sides have wide latitude to discuss the evidence and reasonable inferences therefrom. Harmon v. State, 2011 OK CR 6, ¶ 81, 248 P.3d 918, 943. Relief is only granted where the prosecutor’s flagrant misconduct so infected the defendant’s trial that it was rendered fundamentally unfair. Jones v. State, 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998. It is the rare instance when a prosecutor’s misconduct during closing argument will be found so egregiously detrimental to a defendant’s right to a fair trial that reversal is required. See Pryor v. State, 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722. Cannon complains that the prosecutor argued facts not in evidence and evoked sympathy for the victims. There was no plain error. This claim is denied.

DECISION
The Judgment and Sentence of the district court 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.

AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY
THE HONORABLE JOHN CANAVAN, DISTRICT JUDGE

APPEARANCES AT TRIAL
APPEARANCES ON APPEAL

ADAM BANNER
DUSTIN PHILLIPS
1900 N.W. EXPRESSWAY, P.O. BOX 926
SUITE 601
OKLAHOMA CITY, OK 73118
COUNSEL FOR APPELLANT

ADAM PANTER
POTTAWATOMIE COUNTY ATTORNEY GENERAL
331 N. BROADWAY
SHAWNEE, OK 74801
COUNSEL FOR STATE

ROBERT W. JACKSON
COUNSEL
1900 N.W. EXPRESSWAY, P.O. BOX 926
SUITE 601
NORMAN, OK 73070
COUNSEL FOR DEFENDANT

MIKE HUNTER
ASSISTANT DISTRICT ATTORNEY OF OKLAHOMA
DIANE L. SLAYTON
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR APPELLEE

OPINION BY: ROWLAND, J.
LUMPKIN, P.J.: Concur
LEWIS, V.P.J.: Concur
HUDSON, J.: Concur
KUEHN, J.: Concur

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Footnotes:

1. Under 21 O.S.Supp.2015, § 13.1, Cannon must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.
2. Harney U. State, 2011 OK CR 10, I 23, 256 P.3d 1002, 1007.
3. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
4. Stewart U. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514.
5. Hanson v. State, 2009 OK CR 13, I 18, 206 P.3d 1020, 1028.
6. Harmon v. State, 2011 OK CR 6, IT 81, 248 P.3d 918, 943.
7. Jones U. State, 2011 OK CR 13, I 3, 253 P. 3d 997, 998.
8. Pryor v. State, 2011 OK CR 18, I 4, 254 P.3d 721, 722.
9. 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.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1021.2 - Possession of Child Pornography
• Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Harney v. State, 2011 OK CR 10, I 23, 256 P.3d 1002, 1007
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Stewart v. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514
• Hanson v. State, 2009 OK CR 13, I 18, 206 P.3d 1020, 1028
• Harmon v. State, 2011 OK CR 6, IT 81, 248 P.3d 918, 943
• Jones v. State, 2011 OK CR 13, I 3, 253 P. 3d 997, 998
• Pryor v. State, 2011 OK CR