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RE-2017-964

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Antonio Depew Rhone v State Of Oklahoma

RE-2017-964

Filed: Apr. 4, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Antonio Depew Rhone appealed his conviction for robbery with a firearm and kidnapping. Conviction and sentence were upheld, with the judge revoking his suspended sentence in full. Vice Presiding Judge Kuehn dissented on certain grounds.

Decision

The revocation of Rhone's suspended sentence is AFFIRMED. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. Tilden U. State, 2013 OK CR 10, II 3-4, 306 P.3d 554, 555-556; Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019); Nesbitt v. State, 2011 OK CR 19, II 5, 255 P.3d 435, 437; Grimes U. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755. We examine the basis for the factual determination and consider whether the court abused its discretion. Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565; Crowels U. State, 1984 OK CR 29, IT 6, 675 P.2d 451, 453; Sparks U. State, 1987 OK CR 247, IT 5, 745 P.2d 751, 752. Rhone alleges at proposition one that the trial court erred by denying him the opportunity to hire retained counsel of his choice. Citing to United States U. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), Rhone argues that such a denial is structural error, and no showing of prejudice is required to establish constitutional error. The State argues that Rhone was indigent; that he had been given at least one prior continuance to seek private counsel; that while he alleged that his mother was going to pay to secure counsel on his behalf, at the time of the revocation hearing, she had not done so; and that Rhone had an entire year to seek private counsel and had not done so at the time of the revocation hearing. We find no abuse of discretion in Judge Henderson's ruling. A review of the record filed in this matter confirms the facts presented by the State. Nothing in this appeal record disputes the finding that Rhone was personally indigent; that he had over a year to acquire the services of retained counsel, but did not do so; that he had been given at least one continuance to retain private counsel; and that he arrived the day of the revocation hearing seeking a continuance to retain private counsel. Although his mother testified at the revocation hearing, there was no testimony elicited from her regarding her willingness or attempts to secure private counsel on Rhone's behalf. Rhone alleged at the revocation hearing that his appointed counsel was conflicted and therefore could not represent him, but Rhone presented no evidence of this alleged conflict, nor did he specify how or why appointed counsel could not properly represent him. And, although prejudice is not required to show a constitutional violation in cases alleging error for failure to allow a defendant time to seek retained counsel, Rhone does not allege that his appointed counsel was either ineffective or did not properly represent him at his revocation proceeding. We reject this claim, finding no error. At proposition two, Rhone alleges that his Facebook comments constituted free speech, precluding the State from charging him with Threatening an Act of Violence and Use of a Computer for the Purpose of Violating Oklahoma statutes, as alleged in Oklahoma County Case No. CF-2015-8259. The State correctly argues that Rhone did not object to the introduction of this evidence at the revocation hearing as being constitutionally protected, thereby limiting review of this issue to plain error. See, Hogan U. State, 2006 OK CR 19, IT 38, 139 P.3d at 923; Simpson V. State, 1994 OK CR 40, I 23, 876 P.2d 690, 698. Under police questioning, Rhone admitted making the post to Facebook through the use of a cell phone. At the revocation hearing, Rhone denied telling the arresting detective that he had posted the comment. He alleged that he was upset over his cousin's death at the hands of law enforcement and was expressing his dissatisfaction with the legal system; that he was unhappy with the current situation surrounding his cousin's death and the police officer who shot him; and that his comments were simply political speech expressing his dissatisfaction with the current state of affairs. Judge Henderson determined that the State proved, by a preponderance of the evidence, the elements necessary to find that Rhone committed the charged offenses alleged in Oklahoma County Case No. CF-2015-8259. The statements attributed to Rhone's Facebook post were threats and are not protected as free speech or protected political speech. Gerhart v. State, 2015 OK CR 12, I 10-11, 360 P.3d 1194, 1197. We find no abuse of discretion here and deny this proposition of error. Rhone argues in proposition three that the State's evidence fell short of proving that he committed the crimes alleged in Oklahoma County Case Nos. CF-2015-8259 and CF-2015-8435. He also argues that the evidence used to support the remaining probation violations was conflicting and consisted of inadmissible hearsay, making the evidence insufficient to support the revocation of his suspended sentence. The State, in seeking to revoke a suspended sentence based upon a new violation of the law, must either prove the finality of the judgment and sentence or each element of the charged offense alleged to constitute the violation. Pickens v. State, 1989 OK CR 58, IT 13, 779 P.2d 596, 598; Sams U. State, 1988 OK CR 137, IT 6, 758 P.2d 834. 835. However, alleged violations of conditions of a suspended sentence need only be proven by a preponderance of the evidence. Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322; Fleming U. State, 1988 OK CR 162, IT 4, 760 P.2d 206, 207; Lewis U. State, 1897 OK CR 138, IT 9, 739 P.2d 534, 535. The evidence presented at the revocation hearing supporting the new charge in Case No. CF-2015-8259 consisted of testimony from Detective Karl Landers who located Rhone's Facebook post, and questioned him about the same. Rhone denied telling Landers that he made the Facebook post in question, but admitted that the name on the post was his. There were several photos of Rhone, which he identified at the revocation hearing, posted in connection with the offending post and subsequent posts addressing the issue of his cousin's death. In Case No. CF-2015-8435, the testimony from the preliminary hearing was introduced, where the arresting officer testified that he searched Rhone and found both marijuana and ecstasy in his possession. Rhone denied possessing either of those drugs. The probation violations alleging failure to report and failure to provide an accurate address, were testified to by probation supervisor Mable Dixon-Shelton. The probation officer who wrote Rhone's probation violation report no longer worked for the probation office. Dixon-Shelton testified that according to the report, Rhone did not report as ordered. The report also stated that the probation officer spoke with Rhone's mother who told the officer that Rhone did not reside at her house, which Rhone had provided as his permanent address. The probation officer was also unable to verify the alternate address Rhone provided to him (ostensibly the address of Rhone's girlfriend/wife). Rhone's mother testified at the revocation hearing that she never told the probation officer that Rhone did not reside with her. The only other testimony came from Rhone who argued that he had provided a proper address and reported on two occasions prior to being arrested and jailed for subsequent offenses, thereby preventing him from reporting. Rhone argues the testimony of Dixon-Shelton was hearsay, and was inadequate to prove the State's allegations. There is no dispute that the testimony at the revocation hearing was conflicting. When a case is tried by the court, and there is evidence reasonably tending to support the trial court's findings, those findings will not be disturbed on appeal. Monroe U. State, 1987 OK CR 279, II 6, 748 P.2d 519, 520; Fox v. State, 1976 OK CR 307, IT 16, 556 P.2d 1281, 1284. In the presence of conflicting evidence, this court will not interfere with a fact finder's determination if there is competent evidence to support the verdict. Gilson v. State, 2000 OK CR 14, IT 77, 8 P.3d 883, 910. Although conflicting, there was more than sufficient evidence to support the trial court's determination to revoke Rhone's suspended sentence. Addressing Rhone's claims of hearsay, we also find no cause for granting relief on this issue. As this Court noted in Hampton v. State, 2009 OK CR 4, 14, 203 P.3d 179, 183, the probationer's right of confrontation is a right that arises from due process considerations, and is not the same as that granted defendants under the Sixth Amendment of the U.S. Constitution in criminal prosecutions, but is instead a right that arises from due process considerations. Accordingly, a probationer's right of confrontation is subject to relaxed due process standards that may permit introduction of evidence that would not be admissible in an adversary criminal trial. Id. The due process mandated for this type of hearing is that of fundamental fairness. The evidence admitted at Rhone's Drug Court Termination proceeding had sufficient indicia of reliability, and we find no error in the admissibility of the compliance officer's report. Hampton, I 18. We find sufficient evidence was presented at the hearing to warrant revocation of Rhone's suspended sentence. In his final proposition of error, Rhone alleges it was error for Judge Henderson to revoke his suspended sentence in full. This Court has repeatedly held that violation of even one condition of probation is sufficient to justify revocation of a suspended sentence. Tilden U. State, 2013 OK CR 10, IT 10, 306 P.3d 554, 557; McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745. Based on the record presented in this matter, we find no merit in Rhone's claim that revocation of his suspended sentence is excessive and find no abuse of discretion in Judge Henderson's decision to revoke Rhone's suspended sentence in full. The order of the District Court of Oklahoma County revoking Appellant's suspended sentence in Case No. CF-2003-4985 is AFFIRMED.

Issues

  • Was there error in denying Mr. Rhone the attorney of his choice and refusing to grant the Motion for Continuance, constituting denial of due process?
  • Did the court correctly determine that the Facebook post(s) at issue were not constitutionally protected speech, allowing for criminal charges to be filed?
  • Was the evidence presented by the State sufficient to support Mr. Rhone's revocation of his suspended sentence in violation of due process?
  • Did the trial court abuse its discretion in revoking Mr. Rhone's suspended sentence in full without considering other sentencing options?

Findings

  • the court did not err in denying Rhone the attorney of his choice
  • the Facebook posts at issue were not constitutionally protected speech
  • the evidence was sufficient to support the revocation of Rhone's suspended sentence
  • the trial court did not abuse its discretion in revoking Rhone's suspended sentence in full

RE-2017-964

Apr. 4, 2019

Antonio Depew Rhone

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN CLERK

HUDSON, JUDGE:

On May 19, 2004, Appellant Rhone, represented by counsel, entered a guilty plea to Count 1, Robbery with a Firearm and Count 2, Kidnapping in Oklahoma County Case No. CF-2003-4985. Rhone was sentenced to twenty (20) years for Count 1 with all but the first twelve (12) years suspended. He was sentenced to ten (10) years for Count 2, the sentences to be served concurrently. On July 19, 2016, the State filed an Application to Revoke Rhone’s suspended sentence alleging multiple probation violations, including the commission of several newly charged Oklahoma County offenses. On July 10, 2017, at the conclusion of a revocation hearing, the District Court of Oklahoma County, the Honorable Timothy R. Henderson, District Judge, revoked Rhone’s suspended sentence, and on September 5, 2017, the court ordered the sentence revoked in full.

From this Judgment and Sentence, Rhone appeals, raising the following propositions of error:

1. The Court erred by refusing to allow Mr. Rhone the attorney of his choice in refusing to grant the Motion for Continuance constituting denial of Mr. Rhone’s right to Due Process guaranteed by the Federal and State Constitutions;
2. The Facebook post[s] at issue in CF-2015-8259 are Constitutionally protected speech and therefore cannot serve as a basis for criminal charges of Threatening to Perform an Act of Violence and Using a Computer for the purpose of Violating Oklahoma Statutes;
3. The State presented insufficient evidence to support Mr. Rhone’s revocation in violation of the Due Process Clauses of the Federal and State Constitutions; and
4. The trial court abused its discretion in revoking Mr. Rhone in full, without considering other sentencing options.

The revocation of Rhone’s suspended sentence is AFFIRMED. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. Tilden U. State, 2013 OK CR 10, II 3-4, 306 P.3d 554, 555-556; Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019); Nesbitt v. State, 2011 OK CR 19, II 5, 255 P.3d 435, 437; Grimes U. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755. We examine the basis for the factual determination and consider whether the court abused its discretion. Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565; Crowels U. State, 1984 OK CR 29, IT 6, 675 P.2d 451, 453; Sparks U. State, 1987 OK CR 247, IT 5, 745 P.2d 751, 752.

Rhone alleges at proposition one that the trial court erred by denying him the opportunity to hire retained counsel of his choice. Citing to United States U. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), Rhone argues that such a denial is structural error, and no showing of prejudice is required to establish constitutional error. The State argues that Rhone was indigent; that he had been given at least one prior continuance to seek private counsel; that while he alleged that his mother was going to pay to secure counsel on his behalf, at the time of the revocation hearing, she had not done so; and that Rhone had an entire year to seek private counsel and had not done so at the time of the revocation hearing. We find no abuse of discretion in Judge Henderson’s ruling.

A review of the record filed in this matter confirms the facts presented by the State. Nothing in this appeal record disputes the finding that Rhone was personally indigent; that he had over a year to acquire the services of retained counsel, but did not do so; that he had been given at least one continuance to retain private counsel; and that he arrived the day of the revocation hearing seeking a continuance to retain private counsel. Although his mother testified at the revocation hearing, there was no testimony elicited from her regarding her willingness or attempts to secure private counsel on Rhone’s behalf. Rhone alleged at the revocation hearing that his appointed counsel was conflicted and therefore could not represent him, but Rhone presented no evidence of this alleged conflict, nor did he specify how or why appointed counsel could not properly represent him. And, although prejudice is not required to show a constitutional violation in cases alleging error for failure to allow a defendant time to seek retained counsel, Rhone does not allege that his appointed counsel was either ineffective or did not properly represent him at his revocation proceeding. We reject this claim, finding no error.

At proposition two, Rhone alleges that his Facebook comments constituted free speech, precluding the State from charging him with Threatening an Act of Violence and Use of a Computer for the Purpose of Violating Oklahoma statutes, as alleged in Oklahoma County Case No. CF-2015-8259. The State correctly argues that Rhone did not object to the introduction of this evidence at the revocation hearing as being constitutionally protected, thereby limiting review of this issue to plain error. See, Hogan U. State, 2006 OK CR 19, IT 38, 139 P.3d at 923; Simpson V. State, 1994 OK CR 40, I 23, 876 P.2d 690, 698. Under police questioning, Rhone admitted making the post to Facebook through the use of a cell phone. At the revocation hearing, Rhone denied telling the arresting detective that he had posted the comment. He alleged that he was upset over his cousin’s death at the hands of law enforcement and was expressing his dissatisfaction with the legal system; that he was unhappy with the current situation surrounding his cousin’s death and the police officer who shot him; and that his comments were simply political speech expressing his dissatisfaction with the current state of affairs.

Judge Henderson determined that the State proved, by a preponderance of the evidence, the elements necessary to find that Rhone committed the charged offenses alleged in Oklahoma County Case No. CF-2015-8259. The statements attributed to Rhone’s Facebook post were threats and are not protected as free speech or protected political speech. Gerhart v. State, 2015 OK CR 12, I 10-11, 360 P.3d 1194, 1197. We find no abuse of discretion here and deny this proposition of error.

Rhone argues in proposition three that the State’s evidence fell short of proving that he committed the crimes alleged in Oklahoma County Case Nos. CF-2015-8259 and CF-2015-8435. He also argues that the evidence used to support the remaining probation violations was conflicting and consisted of inadmissible hearsay, making the evidence insufficient to support the revocation of his suspended sentence. The State, in seeking to revoke a suspended sentence based upon a new violation of the law, must either prove the finality of the judgment and sentence or each element of the charged offense alleged to constitute the violation. Pickens v. State, 1989 OK CR 58, IT 13, 779 P.2d 596, 598; Sams U. State, 1988 OK CR 137, IT 6, 758 P.2d 834, 835. However, alleged violations of conditions of a suspended sentence need only be proven by a preponderance of the evidence. Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322; Fleming U. State, 1988 OK CR 162, IT 4, 760 P.2d 206, 207; Lewis U. State, 1897 OK CR 138, IT 9, 739 P.2d 534, 535.

The evidence presented at the revocation hearing supporting the new charge in Case No. CF-2015-8259 consisted of testimony from Detective Karl Landers who located Rhone’s Facebook post, and questioned him about the same. Rhone denied telling Landers that he made the Facebook post in question, but admitted that the name on the post was his. There were several photos of Rhone, which he identified at the revocation hearing, posted in connection with the offending post and subsequent posts addressing the issue of his cousin’s death. In Case No. CF-2015-8435, the testimony from the preliminary hearing was introduced, where the arresting officer testified that he searched Rhone and found both marijuana and ecstasy in his possession. Rhone denied possessing either of those drugs.

The probation violations alleging failure to report and failure to provide an accurate address, were testified to by probation supervisor Mable Dixon-Shelton. The probation officer who wrote Rhone’s probation violation report no longer worked for the probation office. Dixon-Shelton testified that according to the report, Rhone did not report as ordered. The report also stated that the probation officer spoke with Rhone’s mother who told the officer that Rhone did not reside at her house, which Rhone had provided as his permanent address. The probation officer was also unable to verify the alternate address Rhone provided to him (ostensibly the address of Rhone’s girlfriend/wife). Rhone’s mother testified at the revocation hearing that she never told the probation officer that Rhone did not reside with her.

The only other testimony came from Rhone who argued that he had provided a proper address and reported on two occasions prior to being arrested and jailed for subsequent offenses, thereby preventing him from reporting. Rhone argues the testimony of Dixon-Shelton was hearsay, and was inadequate to prove the State’s allegations. There is no dispute that the testimony at the revocation hearing was conflicting. When a case is tried by the court, and there is evidence reasonably tending to support the trial court’s findings, those findings will not be disturbed on appeal. Monroe U. State, 1987 OK CR 279, II 6, 748 P.2d 519, 520; Fox v. State, 1976 OK CR 307, IT 16, 556 P.2d 1281, 1284. In the presence of conflicting evidence, this court will not interfere with a fact finder’s determination if there is competent evidence to support the verdict. Gilson v. State, 2000 OK CR 14, IT 77, 8 P.3d 883, 910.

Although conflicting, there was more than sufficient evidence to support the trial court’s determination to revoke Rhone’s suspended sentence. Addressing Rhone’s claims of hearsay, we also find no cause for granting relief on this issue. As this Court noted in Hampton v. State, 2009 OK CR 4, 14, 203 P.3d 179, 183, the probationer’s right of confrontation is a right that arises from due process considerations, and is not the same as that granted defendants under the Sixth Amendment of the U.S. Constitution in criminal prosecutions, but is instead a right that arises from due process considerations. Accordingly, a probationer’s right of confrontation is subject to relaxed due process standards that may permit introduction of evidence that would not be admissible in an adversary criminal trial. Id. The due process mandated for this type of hearing is that of fundamental fairness. The evidence admitted at Rhone’s Drug Court Termination proceeding had sufficient indicia of reliability, and we find no error in the admissibility of the compliance officer’s report. Hampton, I 18.

We find sufficient evidence was presented at the hearing to warrant revocation of Rhone’s suspended sentence. In his final proposition of error, Rhone alleges it was error for Judge Henderson to revoke his suspended sentence in full. This Court has repeatedly held that violation of even one condition of probation is sufficient to justify revocation of a suspended sentence. Tilden U. State, 2013 OK CR 10, IT 10, 306 P.3d 554, 557; McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d. 744, 745. Based on the record presented in this matter, we find no merit in Rhone’s claim that revocation of his suspended sentence is excessive and find no abuse of discretion in Judge Henderson’s decision to revoke Rhone’s suspended sentence in full.

DECISION

The order of the District Court of Oklahoma County revoking Appellant’s suspended sentence in Case No. CF-2003-4985 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 the delivery and filing of this decision.

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Footnotes:

  1. Tilden U. State, 2013 OK CR 10, II 3-4, 306 P.3d 554, 555-556
  2. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019)
  3. Nesbitt v. State, 2011 OK CR 19, II 5, 255 P.3d 435, 437
  4. Grimes U. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755
  5. Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565
  6. Crowels U. State, 1984 OK CR 29, IT 6, 675 P.2d 451, 453
  7. Sparks U. State, 1987 OK CR 247, IT 5, 745 P.2d 751, 752
  8. United States U. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)
  9. Hogan U. State, 2006 OK CR 19, IT 38, 139 P.3d at 923
  10. Simpson V. State, 1994 OK CR 40, I 23, 876 P.2d 690, 698
  11. Gerhart v. State, 2015 OK CR 12, I 10-11, 360 P.3d 1194, 1197
  12. Pickens v. State, 1989 OK CR 58, IT 13, 779 P.2d 596, 598
  13. Sams U. State, 1988 OK CR 137, IT 6, 758 P.2d 834, 835
  14. Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322
  15. Fleming U. State, 1988 OK CR 162, IT 4, 760 P.2d 206, 207
  16. Lewis U. State, 1897 OK CR 138, IT 9, 739 P.2d 534, 535
  17. Monroe U. State, 1987 OK CR 279, II 6, 748 P.2d 519, 520
  18. Fox v. State, 1976 OK CR 307, IT 16, 556 P.2d 1281, 1284
  19. Hampton v. State, 2009 OK CR 4, 14, 203 P.3d 179, 183
  20. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.8 (2011) - Robbery with a Firearm
  • Okla. Stat. tit. 21 § 741 (2011) - Kidnapping
  • Okla. Stat. tit. 22 § 982a (2011) - Revocation of Suspended Sentence
  • Okla. Stat. tit. 22 § 982 (2011) - Conditions of Probation
  • Okla. Stat. tit. 21 § 1172 (2011) - Threatening Act of Violence
  • Okla. Stat. tit. 21 § 1956 (2011) - Use of a Computer for Criminal Purpose

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:

  • Tilden v. State, 2013 OK CR 10, II 3-4, 306 P.3d 554, 555-556
  • Nesbitt v. State, 2011 OK CR 19, II 5, 255 P.3d 435, 437
  • Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755
  • Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565
  • Crowels v. State, 1984 OK CR 29, IT 6, 675 P.2d 451, 453
  • Sparks v. State, 1987 OK CR 247, IT 5, 745 P.2d 751, 752
  • United States v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)
  • Hogan v. State, 2006 OK CR 19, IT 38, 139 P.3d 923
  • Simpson v. State, 1994 OK CR 40, I 23, 876 P.2d 690, 698
  • Pickens v. State, 1989 OK CR 58, IT 13, 779 P.2d 596, 598
  • Sams v. State, 1988 OK CR 137, IT 6, 758 P.2d 834, 835
  • Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322
  • Fleming v. State, 1988 OK CR 162, IT 4, 760 P.2d 206, 207
  • Lewis v. State, 1897 OK CR 138, IT 9, 739 P.2d 534, 535
  • Monroe v. State, 1987 OK CR 279, II 6, 748 P.2d 519, 520
  • Fox v. State, 1976 OK CR 307, IT 16, 556 P.2d 1281, 1284
  • Gilson v. State, 2000 OK CR 14, IT 77, 8 P.3d 883, 910
  • Hampton v. State, 2009 OK CR 4, 14, 203 P.3d 179, 183
  • McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745

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