Orville Tabe Keith, Jr. v The State Of Oklahoma

RE-2018-484

Filed: Aug. 29, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Orville Tabe Keith, Jr. appealed his conviction for Manslaughter in the First Degree. Conviction and sentence were that his twelve-year suspended sentences were revoked in full. Judge Marion D. Fry made the decision, and there was a dissenting opinion from Judge Kuehn.

Decision

The order of the District Court of LeFlore County revoking in full Appellant's concurrent twelve year suspended sentences in Case No. CF-2008-245 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 filing of this decision.

Issues

• Was there sufficient evidence to support the district court's decision to revoke Appellant's suspended sentences?
• Did the testimony of Donna Underwood regarding Appellant's confessions provide adequate proof of a violation of probation?
• Was the trial court's decision to revoke the suspended sentences an abuse of discretion?

Findings

• the court did not err
• evidence was sufficient to support the district court's decision to revoke Appellant's suspended sentences
• the trial court did not abuse its discretion in revoking Appellant's suspended sentences

RE-2018-484

Aug. 29, 2019

Orville Tabe Keith, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE:

Appellant, Orville Tabe Keith, Jr., appeals from the revocation in full of his concurrent twelve year suspended sentences in Case No. CF-2008-245 in the District Court of LeFlore County, by the Honorable Marion D. Fry, Associate District Judge. On March 5, 2009, Appellant entered a plea of guilty to two counts of Assault and Battery With a Dangerous Weapon, and was sentenced to terms of twelve years on each count, with the sentences ordered to run concurrently and suspended pursuant to rules and conditions of probation.

On March 23, 2017, the State filed a Motion to Revoke Suspended Sentence alleging that Appellant violated probation by committing the crime of Manslaughter in the First Degree. On May 1, 2018, the revocation hearing was held before Judge Fry. Evidence presented at the revocation hearing showed that, on June 27, 2015, an altercation took place in Appellant’s house that led to the death of Brandon Martinez (“Martinez”). Martinez suffered blunt force injuries to the skull and lacerations to the head/face/neck area that eventually proved fatal. In addition to Appellant and Martinez, Paul Anderson (“Anderson”) and a lady named Stacy Berit (“Berit”) were present at Appellant’s house during the incident. Martinez came to Appellant’s house on June 27, 2015, and started causing trouble. Berit was performing oral sex on Martinez in Appellant’s living room, and Appellant and Anderson became upset. The fight ensued that caused Martinez’ injuries and death.

Jim Craig and Rodney Derryberry, employed with the LeFlore County Drug Task Force, conducted the search of Appellant’s home and also testified at the revocation hearing. Items recovered from the crime scene included blood-stained pieces/shards from a broken ceramic vase; a blood-stained homemade knife (shank); two blood-stained aerosol cans; and a blood-stained Phillips screwdriver. Those items were submitted for DNA testing/analysis. Criminalistics Examination Reports were prepared on December 20, 2015, and February 13, 2017, and were admitted into evidence at the revocation hearing as State’s Exhibits 24 and 25. The reports concluded that Appellant either matched or could not be excluded as a potential contributor to the DNA found on each of the seized items. Anderson was excluded as a potential contributor to the DNA found on each of the seized items, except for one of the aerosol cans.

Another witness testifying for the State at the revocation hearing was Donna Underwood (“Underwood”), a dispatcher for the Talihina Police Department and a neighbor who lived directly across the street from Appellant. Underwood testified about conversations she, and sometimes her husband, had with Appellant over a period of time after the Martinez homicide. Appellant admitted to Underwood that he had inflicted the critical injuries found on Martinez’ body and that he had killed Martinez. Underwood testified she waited to report her conversations with Appellant because she hadn’t believed him and wasn’t scared of him until March of 2017. An investigator testified that once the DNA reports came back, and after Underwood reported Appellant’s confessions, there was no question that Appellant had committed the homicide.

After considering the evidence and arguments, Judge Fry found that Appellant had violated his rules and conditions of probation by committing the crime of Manslaughter in the First Degree. Judge Fry revoked Appellant’s concurrent twelve year suspended sentences in full. Appellant appeals asserting one proposition of error.

PROPOSITION I: THE STATE’S EVIDENCE WAS INSUFFICIENT TO SUPPORT THE DISTRICT COURT’S DECISION TO REVOKE APPELLANT’S SUSPENDED SENTENCES.

ANALYSIS

Appellant argues the State failed to prove he had committed the crime of Manslaughter in the First Degree for a couple of reasons. Appellant basically argues that Underwood’s testimony is not believable because for almost two years she had not believed his confessions and hadn’t mentioned them to her co-workers at the police department. Appellant also argues Underwood only reported the confessions when Appellant expressed his romantic feelings for her and she became scared of him. Appellant also contends there is still credible evidence that shows Anderson committed the homicide. Alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556. Proof of a probation violation is sufficient if any rational trier of fact could have found the essential elements of the alleged violation by a preponderance of the evidence. Hogan v. State, 2006 OK CR 19, ¶ 21, 139 P.3d 907, 919 (all sufficiency of the evidence claims are reviewed under the standard established in Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04).

The decision of the trial court to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. Underwood’s testimony about Appellant’s confessions, and DNA test results that exculpated Anderson and inculpated Appellant, provided more than sufficient evidence from which a rational trier of fact could have found Appellant had violated his rules and conditions of probation by committing the crime of Manslaughter in the First Degree. Tilden, supra; Hogan, supra. Judge Fry’s revocation in full of Appellant’s concurrent twelve year suspended sentences cannot be considered an abuse of discretion. Jones, supra.

DECISION

The order of the District Court of LeFlore County revoking in full Appellant’s concurrent twelve year suspended sentences in Case No. CF-2008-245 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 filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 22 § 1151.
2. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556.
3. Hogan v. State, 2006 OK CR 19, ¶ 21, 139 P.3d 907, 919.
4. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.
5. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565.
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Manslaughter in the First Degree
• Okla. Stat. tit. 22 § 1086 (2011) - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 991a (2011) - Sentencing and Supervised Probation
• Okla. Stat. tit. 47 § 11-801 (2011) - Definitions; Reckless Driving

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, I 5, 306 P.3d 554, 556
• Hogan v. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565