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FILED IN COURT OF CRIMINAL APPE STATE OF OKLAHOM IN THE COURT OF CRIMINAL APPEALS JUN 2 5 2008 OF THE STATE OF OKLAHOMA MICHAEL S. RICHIE CLERK KEVIN WAYNE DURANT, ) ) NOT FOR PUBLICATION Appellant, ) VS. ) No. RE-2007-323 ) STATE OF OKLAHOMA, ) ) Appellee. ) SUMMARY OPINION C. JOHNSON, VICE PRESIDING JUDGE: On March 11, 2003, Appellant, represented by counsel, entered a plea of nolo contendere to a charge of Second Degree Rape in Case No. CF-2002-230 in the District Court of Canadian County. Appellant was sentenced to five (5) years for the offense, all suspended. On September 13, 2005, Appellant was charged with Unlawful Use of Photographic Equipment for Lewd and Lascivious Purposes in Case No. CF-2005- 5092 in the District Court of Oklahoma County. The charge was subsequently amended to Outraging Public Decency. On September 13, 2005, the State filed an Application to Revoke Appellant’s suspended sentence, alleging Appellant had committed a criminal offense as alleged in Oklahoma County Case No. CF-2005- 5092.¹ On November 9, 2006, Appellant was convicted of the Oklahoma County offense. 1 The Application to Revoke was amended on July 18, 2006 to reflect the amended charges filed in Oklahoma County Case No. CF-2005-5092. On April 3, 2007, Appellant’s suspended sentence was revoked in full after the District Court found Appellant had been convicted of the charged offense in Oklahoma County Case No. CF-2005-5092. From this judgment and sentence, Durant appeals, raising the following issues: 1. The statute used to revoke his suspended sentence is unconstitutional; 2. The video evidence seized by the State must be suppressed because it was seized in violation of Appellant’s U.S. and Oklahoma Constitutional rights; and 3. Insufficiency of the evidence presented at trial precluded a finding that Appellant’s suspended sentence should be revoked. On May 23, 2008, this Court reversed Durant’s conviction in Oklahoma County Case No. CF-2005-5092, finding that his actions, while reprehensible, did not constitute a crime as charged. See, Durant U. State, 2008 OK CR 17. Because Durant’s suspended sentence in Canadian County Case No. CF-2002- 230 was revoked only upon the basis of the Oklahoma County charge, the revocation of his suspended sentence must be REVERSED. DECISION The order of the District Court revoking Appellant’s suspended sentence in full in Case No. CF-2002-230 is REVERSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY THE HONORABLE EDWARD C. CUNNINGHAM, DISTRICT JUDGE 2 APPEARANCES AT TRIAL APPEARANCES ON APPEAL BRIAN DELL BRIAN DELL 501 NORTHWEST 13TH STREET 501 NORTHWEST 13TH STREET OKLAHOMA CITY, OK 73103 OKLAHOMA CITY, OK 73103 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT CATHY STOCKER W.A. DREW EDMONDSON DISTRICT ATTORNEY ATTORNEY GENERAL OF PAUL HESSE OKLAHOMA ASSISTANT DISTRICT ATTORNEY TOMMY LEE TUCKER CANADIAN COUNTY COURTHOUSE ASSISTANT ATTORNEY GENERAL 303 N. CHOCTAW 313 N.E. 21ST STREET EL RENO, OK 73036 OKLAHOMA CITY, OK 74105 COUNSEL FOR THE STATE COUNSEL FOR THE APPELLEE OPINION BY: C. JOHNSON, V.P.J.: LUMPKIN, P.J.: DISSENT CHAPEL, J.: CONCUR A. JOHNSON, J.: CONCUR LEWIS, J.: CONCUR RA/F 3

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