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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA LARRY GENE LUCK, ) ) Appellant, ) Not for publication ) V. ) No. M 2010-1026 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA DEC – I Zull SUMMARY OPINION MICHAEL S. RICHIE C. JOHNSON, JUDGE: CLERK Following a jury trial September 20, 2010, Appellant, Larry Gene Luck, was found guilty in the District Court of Atoka County, Case No. CF-2009-124, of Malicious Mischief, a misdemeanor, in violation of 21 O.S. 2011, § 1787. The Honorable Neal Merriott, Associate District Judge, sentenced Appellant on October 12, 2010, to six months in the Atoka County Jail, a fine of $500.00, court costs in the amount of $551.30, and restitution in the amount of $21,883.00. Appellant appeals from the Judgment and Sentence imposed. In Appellant’s first proposition of error he argues that the admission and injection of entirely irrelevant and unduly prejudicial evidence and false implications denied him a fair trial and improperly inflated his sentence. We agree with the State’s response that the complained of evidence was res gestae of the charged crime and find no error. See Rogers U. State, 1995 OK CR 8, IT 21, 890 P.2d 959. Appellant’s second proposition of error argues that the sentence is excessive and must be favorably modified in the interest of justice. Pursuant to Section 1788 of Title 21, the punishment range for Malicious Mischief is a fine of not less than $100.00 and not more than $500.00 or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment. Finding Appellant’s sentence not SO excessive as to shock the conscience of the Court, we decline to modify. Middaugh v. State, 1988 OK CR 295, II 20-21, 767 P.2d 432. Appellant’s third proposition of error argues that the restitution order should be vacated because the proper procedure was not followed, the amount of actual loss was not determined with reasonable certainty, the unnamed insurance company was not a victim entitled to restitution, and all or the majority of the requested recovery has been waived. We agree that the amount of actual loss was not determined with reasonable certainty. See Honeycutt v. State, 1992 OK CR 36, 1/17 31-36, 834 P.2d 993. Testimony by the victim is that total damages were “a little over” $21,000.00 and that insurance covered “close to” $13,400.00. The State advised the trial court that $13,883.00 was covered by insurance and “approximately” $8,000.00 was not covered by insurance and asked for restitution in the amount of $21,883.00 Finding merit to this proposition of error, the restitution is vacated and the matter remanded for a hearing to properly determine what the restitution in this matter should be. Appellant’s fourth proposition of error argues that any failure to preserve issues for review was the result of ineffective assistance of counsel. To prevail on 2 this claim Appellant must demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his/her overall performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Appellant has not met this burden. Appellant’s final proposition of error argues that the cumulative effect of all the errors addressed above deprived him of a fair trial. In the absence of individual error, there can be no accumulation of error. Appellant has not shown error or a cumulative effect of errors. See Matthews V. State, 2002 OK CR 16, I 57, 45 P.3d 907. DECISION The Judgment and Sentence are AFFIRMED, but the restitution imposed is VACATED and the matter is REMANDED to the District Court for a hearing to determine restitution. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision. 3 AN APPEAL FROM THE DISTRICT COURT OF ATOKA COUNTY HONORABLE NEAL MERRIOTT, ASSOCIATE DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL LOWELL BURGESS KIMBERLY D. HEINZE ATTORNEY AT LAW APPELLATE DEFENSE COUNSEL P.O. BOX 17 P. O. BOX 926 ANTLERS, OK 74523 NORMAN, OK 73070 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT GREG JENKINS E. SCOTT PRUITT ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA ATOKA COUNTY COURTHOUSE THEODORE M. PEEPER 200 EAST COURT STREET ASSISTANT ATTORNEY GENERAL ATOKA, OKLAHOMA 74525 313 N.E. 21ST STREET COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE OPINION BY: JOHNSON, C., J. A. JOHNSON, P.J.: CONCUR LEWIS, V.P.J.: CONCUR LUMPKIN, J.: CONCUR IN RESULTS SMITH, J.: CONCUR 4

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