Kevin Wayne Durant v State Of Oklahoma

RE-2007-323

Filed: May 23, 2008

Not for publication

Prevailing Party: Kevin Wayne Durant

Summary

Kevin Wayne Durant appealed his conviction for Unlawful Use of Photographic Equipment for Lewd and Lascivious Purposes, which was later changed to Outraging Public Decency. His conviction and sentence were reversed. Judge Lumpkin dissented.

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.

Issues

• Was the statute used to revoke Appellant's suspended sentence unconstitutional?
• Did the seizure of video evidence by the State violate Appellant's U.S. and Oklahoma Constitutional rights?
• Was the evidence presented at trial insufficient to support the revocation of Appellant's suspended sentence?

Findings

• the statute used to revoke his suspended sentence is constitutional
• the video evidence seized by the State must not be suppressed
• the evidence was sufficient to preclude a finding that Appellant's suspended sentence should be revoked
• the revocation of his suspended sentence must be reversed

RE-2007-323

May 23, 2008

Kevin Wayne Durant

Appellant

v

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.

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 On April 3, 2007, Appellant’s suspended sentence was revoked in full after the District Court found Appellant had been convicted of the charged offense in Oklahoma County Case No. CF-2005-5092.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.

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Footnotes:

1. 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.
2. ² Durant U. State, 2008 OK CR 17.
3. ³ Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111 (2001) - Rape in the second degree
• Okla. Stat. tit. 21 § 10 (2001) - Outraging public decency
• Okla. Stat. tit. 22 § 18 (2008) - 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:

• Durant v. State, 2008 OK CR 17