Actual Error Archives - OCCA Opinions

F-2018-957

Post author:Staff
Post published:January 30, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DUSTIN SCOTT PATTON,** Appellant, Case No. F-2018-957 **V.** **STATE OF OKLAHOMA,** Appellee. **SUMMARY OPINION** **HUDSON, JUDGE:** Dustin Scott Patton was convicted in the District Court of Kay County, Case No. CF-2017-258, of Assault and Battery with a Deadly Weapon, violating 21 O.S.2011, § 652(C). A jury recommended a ten-year sentence, and Honorable David Bandy, District Judge, imposed the sentence as per the jury's verdict. Patton appeals with two propositions of error. 1. **The modified jury instruction improperly relieved the State of proving an essential element of the crime charged.** 2. **Appellant was deprived of a fair trial due to numerous pleas for sympathy for the victim during trial.** Upon thorough review of the record and arguments presented, we find no grounds for relief. Patton's judgment and sentence are **AFFIRMED**. **Proposition I:** Patton concedes he did not object to Instruction No. 24 at trial, necessitating plain error review. To establish plain error, Patton must show an actual error that is obvious and affects his substantial rights. Previous case law indicates that certain weapons, like knives, are per se deadly weapons. Instruction No. 24, which classified a knife as a deadly weapon, was not erroneous, and thus Proposition I is **denied**. **Proposition II:** For prosecutorial misconduct claims, relief is granted only if the misconduct renders the trial fundamentally unfair. Patton only objected to the display of the victim’s scars. The presentation of the victim’s injuries primarily served to illustrate the crime's severity and the use of force, which was pertinent to the charges against Patton. This evidence was not unduly prejudicial, and thus, Proposition II is also **denied**. **DECISION:** The District Court's Judgment and Sentence are **AFFIRMED**. *Issued upon the delivery and filing of this decision.* **OPINION BY:** HUDSON, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. --- For further details, you can download the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-957_1734873972.pdf).

F-2018-269

Post author:Staff
Post published:October 3, 2019
Post category:F

In OCCA case No. F-2018-269, David Anthony Tofflemire appealed his conviction for Possession of Child Pornography. In an unpublished decision, the court decided to affirm his conviction. One member of the court dissented. Tofflemire was found guilty at a trial without a jury and received a sentence of sixteen years in prison, with eight of those years suspended. He argued that there was not enough evidence against him, that he did not understand his waiver of the jury trial, and that there was an error in taxing him with an attorney fee even though he had his own lawyer. The court reviewed the case carefully and found that the evidence presented was sufficient for a reasonable person to conclude that Tofflemire knowingly possessed child pornography on his cell phone. They stated that the prosecution provided enough proof to support the conviction. Regarding the waiver of his jury trial, Tofflemire claimed he did not fully understand what he was doing. However, the court noted that he had signed a form waiving his right to a jury trial and that his lawyer acknowledged this waiver on the record. Since there was no evidence of coercion or misunderstanding, the court decided Tofflemire's waiver was valid. Finally, concerning the attorney fee, the court recognized that Tofflemire had hired his own lawyer but also that a fee for a court-appointed lawyer was mentioned in the court documents by mistake. Therefore, the court decided to remand the case back to the district court to correct this clerical error. In conclusion, Tofflemire's conviction was upheld, but the court took action to ensure the records reflected the correct information concerning the attorney fee.

F-2018-309

Post author:Staff
Post published:September 12, 2019
Post category:F

In OCCA case No. F-2018-309, Adrian Escajeda appealed his conviction for Murder in the First Degree. In an unpublished decision, the court decided to affirm his conviction and sentence. One judge dissented. Adrian Escajeda was found guilty of first-degree murder by a jury and sentenced to life in prison. He was also convicted earlier of two drug possession charges, but those were not part of his appeal. During his trial, Escajeda claimed there were several errors that negatively impacted his case. First, he argued that it was wrong to have both his murder case and a separate child neglect case tried together in front of the same jury. He believed this made it hard for the jury to be fair. However, the court found that he didn't show how this joined trial actually harmed him because the jury had acquitted him of the child neglect charge. Additionally, the evidence against him for murder was very strong and unrelated to the child neglect, making the combined trial harmless. Escajeda also said his lawyer did not do a good job by not objecting to the charges being joined for trial. However, the court decided that his lawyer's performance wasn’t ineffective because there wasn’t any real prejudice; the outcome was not affected. The next point Escajeda raised was about some statements made during the trial. He believed hearsay was wrongly admitted, which violated his right to confront witnesses. The court looked into this and concluded that the statements in question were not hearsay, as they were used to explain the detective's investigation and did not assert the truth of those statements. Finally, Escajeda claimed that the prosecutor made unfair comments during the trial that made it hard for the jury to be impartial. The court examined these comments and found they were reasonable and based on the evidence presented. Since the comments did not create an unfair trial, the court dismissed this argument as well. In conclusion, the court reviewed all of Escajeda’s claims and found none of them warranted a change to his conviction or sentence. As a result, his conviction for first-degree murder remained in place, and he will serve the majority of his sentence in prison.

F-2018-502

Post author:Staff
Post published:August 29, 2019
Post category:F

In OCCA case No. F-2018-502, Randall Patrick Molloy appealed his conviction for Child Abuse by Injury. In an unpublished decision, the court decided to affirm Molloy's conviction. One justice dissented. Molloy was found guilty by a jury in Tulsa County for hurting a child, which is a serious crime. The jury decided he should go to prison for sixteen years and pay a fine of $5,000. However, the judge agreed to lessen his sentence by taking away three years, meaning he would only have to serve thirteen years in prison. Molloy raised two main problems with his trial. First, he argued that he didn't get a fair trial because the state didn't share an agreement with a co-defendant that might have helped his case. Second, he felt that instructions given to the jury were confusing and didn't help them understand the facts related to the co-defendant's earlier statements. The court reviewed all the evidence and listened to the arguments from both sides. They pointed out that for Molloy to get a new trial based on not receiving a fair trial, he had to show that there was a clear mistake that changed how the trial turned out. Ultimately, they found that there were no clear mistakes or errors in the trial. The court noted that the information about the co-defendant was known to Molloy's lawyer during the trial, and therefore, it did not affect the outcome negatively. Regarding the jury instructions, the court also concluded that those instructions did not clearly cause any problems that could change the trial's result. The jury had enough information to make a fair decision about Molloy's guilt based on the evidence presented. In summary, because the court found that there were no serious mistakes during the trial, they decided to uphold the original decision made against Molloy.

F-2018-923

Post author:Staff
Post published:August 15, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **PHILIP JAN CANNON,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-923** **FILED** **AUG 15 2019** **Clerk** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Philip Jan Cannon was tried by a jury in the District Court of Pottawatomie County, Case No. CF-2016-541, for Possession of Child Pornography, in violation of 21 O.S.2011, § 1021.2. The jury found Cannon guilty and assessed punishment at twenty years imprisonment and a $25,000.00 fine. The Honorable John Canavan, District Judge, who presided over Cannon's trial, sentenced him according to the jury's verdict. Cannon appeals, raising the issue of whether improper closing remarks by the prosecutor deprived him of a fair trial. Under 21 O.S.Supp.2015, § 13.1, Cannon must serve 85% of his sentence before he is eligible for parole consideration. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. Cannon complains of prosecutorial misconduct, arguing it deprived him of his right to a fair trial. Because the comments at issue were not objected to at trial, our review is for plain error only. *Harney v. State*, 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. To qualify for relief based on plain error, Cannon must demonstrate: (1) the existence of an actual error (a deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning it impacted the trial's outcome. *Hogan v. State*, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court only corrects plain error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings or represents a miscarriage of justice. *Stewart v. State*, 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514. We evaluate alleged misconduct in the context of the entire trial, considering not only the propriety of the prosecutor's actions but also the strength of the evidence against Cannon and the arguments of defense counsel. Both parties have broad latitude to discuss the evidence and make reasonable inferences. Relief is granted only where the prosecutor's flagrant misconduct has so tainted the trial that it is rendered fundamentally unfair. *Jones v. State*, 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998. It is rare that prosecutorial misconduct in closing argument necessitates reversal. *Pryor v. State*, 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722. Cannon alleges the prosecutor argued facts not in evidence and appealed to the jury's sympathy for the victims. However, we find there was no plain error in these remarks. Therefore, this claim is denied. **DECISION** The Judgment and Sentence of the district court 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 delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY** **THE HONORABLE JOHN CANAVAN, DISTRICT JUDGE** **APPEARANCES AT TRIAL** **ADAM BANNER** **DUSTIN PHILLIPS** **COUNSEL FOR APPELLANT** 1900 N.W. Expressway, P.O. Box 926 Suite 601 Norman, OK 73070 **APPEARANCES ON APPEAL** **ROBERT W. JACKSON** **COUNSEL FOR DEFENDANT** Oklahoma City, OK 73118 **ADAM PANTER** **COUNSEL FOR STATE** **MIKE HUNTER** Pottawatomie County Attorney General of Oklahoma 331 N. Broadway Shawnee, OK 74801 **DIANE L. SLAYTON** Assistant Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 **OPINION BY:** ROWLAND, J. **LUMPKIN, P.J.:** Concur **LEWIS, V.P.J.:** Concur **HUDSON, J.:** Concur **KUEHN, J.:** Concur [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-923_1734954802.pdf)

F-2017-1284

Post author:Staff
Post published:August 8, 2019
Post category:F

In OCCA case No. F-2017-1284, Jesse Earl Maupin appealed his conviction for Lewd or Indecent Acts to a Child Under 16. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. Maupin was found guilty by a jury and sentenced to life in prison. He raised several issues on appeal, arguing that there was not enough evidence to prove he was guilty, that his life sentence was not a valid punishment, that the sentence was too harsh, and that there were mistakes in his trial that required a new trial. The court carefully reviewed the evidence and found that there was enough proof for the jury to convict Maupin based on the law. They explained that juries can use both direct evidence and indirect evidence to make their decisions. Maupin also claimed that a life sentence should not have been an option given the laws around his charges. The court found that the sentence was legal and appropriate. They ruled that a life sentence is a valid punishment when the law does not specify a maximum sentence. Regarding the sentence itself, the court determined that the life sentence did not shock their conscience or seem overly harsh given the circumstances of the case. Finally, since the court found no errors in the trial, they also declined to grant a new trial based on the idea of cumulative errors. In conclusion, the court affirmed Maupin's conviction and sentence.

M-2018-335

Post author:Staff
Post published:July 11, 2019
Post category:M

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JULIUS LAMAR WRIGHT,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. **No. RE 2018-0144** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JUL 11 2019** **SUMMARY OPINION** LEWIS, PRESIDING JUDGE: Appellant Julius Lamar Wright entered a plea of guilty in the District Court of Oklahoma County, Case No. CF-2009-228, for Count 1 - Possession of a Controlled Dangerous Substance With Intent to Distribute (Marijuana) and Count 2 - Possession of Drug Paraphernalia. On April 28, 2009, Appellant received a five-year deferred sentence on each count. On March 6, 2012, Appellant pled guilty to allegations in the application to accelerate his deferred sentences, resulting in a ten-year suspended sentence (first five years in custody) for Count 1, and one year in the Oklahoma County Jail for Count 2. These sentences were ordered to run concurrently with each other and with CF-2011-1457. Appellant was charged with Domestic Abuse by Strangulation on December 9, 2015, in Oklahoma County District Court Case No. CF-2015-8860. He entered a no contest plea and was given a ten-year suspended sentence with probation conditions, which ran concurrently with the earlier cases and included credit for time served. The State's motion to revoke Appellant's suspended sentence in Case No. CF-2009-228 due to the new charge and failure to pay restitution was dismissed on June 28, 2016, as part of the plea agreement in Case No. CF-2015-8860. On June 29, 2017, the State filed a motion to revoke Appellant's suspended sentences in Cases CF-2009-228 and CF-2015-8860, alleging a new crime of Possession of a Controlled Dangerous Substance in Oklahoma County District Court Case No. CF-2017-2733. After a revocation hearing on January 31, 2018, Appellant's suspended sentences in both cases were revoked. Appellant appeals the revocation of his suspended sentences, raising two propositions of error: 1. The evidence presented during his revocation hearing should have been excluded as it was obtained through egregious police conduct violating his Fourth Amendment rights. 2. The trial court abused its discretion by revoking Appellant's sentences in full, constituting a violation of his due process rights and resulting in an excessive sentence. We affirm the District Court's decision to revoke Appellant's suspended sentences in full. Appellant's first argument was not raised at the revocation hearing, leading us to review for plain error. To claim relief under the plain error doctrine, Appellant must prove: (1) an actual error occurred; (2) the error is clear and obvious; and (3) the error affected his substantial rights, impacting the outcome of the hearing. We find no plain error and conclude that the trial judge did not abuse discretion in finding Appellant violated the conditions of his suspended sentences. Regarding the second argument, the court has broad discretion in revoking suspended sentences, and this discretion will not be disturbed without showing an abuse thereof. Appellant has not demonstrated any such abuse. **DECISION** The revocation of Appellant's suspended sentences in Oklahoma County District Court Case Nos. CF-2009-228 and CF-2015-8860 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. **REVOCATION APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE** **APPEARANCES ON APPEAL REVOCATION PROCEEDINGS** **THOMAS HURLEY** **MARVA A. BANKS** Assistant Public Defender Oklahoma County Public Defender's Office 611 County Office Building 320 Robert S. Kerr Oklahoma City, Oklahoma 73102 Counsel for Defendant **KIRK MARTIN** Assistant District Attorney Oklahoma County 320 Robert S. Kerr Suite 505 Oklahoma City, Oklahoma 73102 Counsel for the State **OPINION BY:** LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur **[PDF VERSION AVAILABLE HERE](https://opinions.wirthlawoffice.com/wp-content/uploads/M-2018-335_1734421708.pdf)**

F-2018-646

Post author:Staff
Post published:June 27, 2019
Post category:F

The document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the appeal of Ashley Dawn Bost. She was convicted of several offenses in LeFlore County District Court, including trafficking in illegal drugs and possession of a controlled substance, along with additional charges related to a firearm and drug paraphernalia. In her appeal, Bost raised a single proposition of error arguing that her convictions for trafficking in methamphetamine and possession of oxycodone violated the prohibition against multiple punishments for a single offense, as outlined in 21 O.S.2011, § 11. The court found that Bost did not preserve this argument for appeal as she failed to raise it during the trial, thus waiving her right to full review, except for considering it for plain error. The appellate court applied a three-part test for assessing plain error and determined that Bost did not demonstrate actual or plain error. The court explained that the analysis under Section 11 focuses on the relationship between the crimes and whether they require different proofs. Since the two charges involved different drugs and amounts required for trafficking and possession, the court concluded that they were indeed separate and distinct offenses and affirmed the trial court's judgments and sentences. The court's final decision was to affirm Bost's convictions and sentences, with the mandate ordered to be issued promptly. The opinion included a list of counsel for both the appellant and the appellee. For more information, a link to the full opinion is provided at the end of the summary.

M-2018-259

Post author:Staff
Post published:June 27, 2019
Post category:M

In OCCA case No. M-2018-259, Apollo Gabriel Gonzalez appealed his conviction for Domestic Abuse - Assault and Battery. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. On July 12, 2016, Gonzalez was charged with domestic abuse in two separate cases that were later combined for a jury trial. The jury found him guilty of both charges, and the judge sentenced him to pay fines. Gonzalez argued that he did not get a fair trial. He said his lawyer did not use important evidence that could have helped him. He claimed this evidence would show that the person he was accused of hurting was actually the aggressor and that he acted in self-defense. However, the court noted that Gonzalez did not provide actual evidence to support his claims about his lawyer's performance. The court explained that to win an appeal on these grounds, Gonzalez needed to show that his lawyer made serious mistakes and that those mistakes affected the outcome of his trial. The judges ruled that even if his lawyer had made mistakes, Gonzalez could not show that the result of the trial would have been different. In his second argument, Gonzalez claimed that having both of his cases tried together was unfair. He referenced a previous decision where combining cases had led to issues. However, the court pointed out that in his case, the jury could decide each case separately, unlike the situation in the previous decision he cited. In the end, the court found no errors that would require reversing the conviction or changing the result. The judges upheld the earlier decisions, and Gonzalez's appeal was denied.

F-2016-55

Post author:Staff
Post published:January 1, 2017
Post category:F

In OCCA case No. F-2016-55, James Curtis Cox appealed his conviction for Sexual Abuse of a Child. In an unpublished decision, the court decided to affirm the convictions but modify the sentences to run concurrently instead of consecutively. One judge dissented. Here's a summary of what happened: Cox was tried by a jury and found guilty of two counts of Sexual Abuse of a Child. The judge sentenced him to a long time in prison: twenty-five years for the first count and life imprisonment for the second count, along with fines. He had to serve eighty-five percent of his sentences before he could be considered for parole. Cox appealed because he thought several things went wrong during his trial. First, he complained that his lawyer did not do a good job. He also said the trial court made mistakes by not instructing the jury properly about certain evidence and that they considered witness statements that shouldn’t have been allowed. The court reviewed everything his lawyer did and decided that Cox was not able to show that he had suffered because of his lawyer's performance. They ruled that even if his lawyer didn’t object to some evidence or didn’t ask for certain instructions, it did not ruin his chance for a fair trial. The judges also looked at whether the trial court made mistakes about some evidence being used during the trial. They found that while some evidence shouldn’t have been used, it didn’t change the outcome of the trial. However, when it came to sentencing, the judges found a significant problem. The trial court should not have considered certain statements from victims who were not part of the case. They concluded that the judge was influenced by these statements, which were not allowed, while deciding how long Cox should stay in prison. In the end, the judges decided that Cox’s sentences should be changed to run concurrently, meaning he would serve them at the same time instead of one after the other. The court affirmed the convictions but modified the sentences so Cox would have a slightly lighter sentence to serve compared to what they initially decided. The appeal allowed Cox to get a better outcome in terms of his sentences, even though he still faced serious charges.

F-2013-788

Post author:Staff
Post published:December 18, 2014
Post category:F

In OCCA case No. F-2013-788, Travis Lenard Mikado appealed his conviction for Attempting to Elude a Police Officer and Possession of a Controlled Dangerous Substance for both Marijuana and Methamphetamine. In a published decision, the court decided to reverse the conviction for the misdemeanor Possession of Controlled Dangerous Substance while affirming the convictions for Attempting to Elude a Police Officer and the felony possession of Methamphetamine. One judge dissented. The case began when two police officers saw Mikado driving erratically, crossing the centerline. They activated their lights and followed him into a parking lot. Instead of stopping, Mikado accelerated, jumped the curb, and took off down the street, leading the officers on a high-speed chase. The pursuit ended when Mikado lost control of his car, which flipped multiple times. He was thrown from the vehicle but was conscious when officers reached him. A search revealed he had Methamphetamine and Marijuana in his pockets. Mikado challenged his convictions for Possession of a Controlled Dangerous Substance, claiming they violated laws against multiple punishments. However, he hadn’t raised this challenge before the trial, so the court evaluated it for plain error, which occurs when there is an obvious mistake that impacts the fairness of the trial. The court found that Mikado's two drug possessions were part of a single act since both drugs were found in one location. The ruling referenced past decisions where individuals could not be punished more than once for the same offense if it was part of one action, as in Mikado’s case. The court decided that since the Methamphetamine and Marijuana were both in the same pocket, it counted as one act of possession. Therefore, the conviction for one of the drugs was reversed. In summary, the court affirmed most of Mikado’s convictions but recognized that he should not have been punished for both drugs separately, leading to a significant change in his sentencing.

F 2011-858

Post author:Staff
Post published:October 5, 2012
Post category:F

In OCCA case No. F 2011-858, Jesus Ceniceros, Jr. appealed his conviction for multiple counts related to drug trafficking and distribution. In an unpublished decision, the court decided to reverse and remand two of the convictions while affirming the rest. One judge dissented. Jesus Ceniceros was tried and found guilty of eight counts involving illegal drug activities in Pottawatomie County. His charges included serious crimes like aggravated trafficking in illegal drugs, trafficking in illegal drugs, and unlawful distribution of methamphetamine. For these convictions, he received long sentences, some requiring him to serve 85% before being eligible for parole, along with hefty fines. After his trial, Ceniceros raised some points in his appeal. First, he argued that the search warrant used for police to search his home did not follow the rules set by Oklahoma law. However, the court found the warrant was good enough to let the police find the place to search without needing any extra information. Next, Ceniceros suggested that the trafficking and distribution counts should combine into one charge. He claimed he was being punished twice for the same act. The court agreed that this was a mistake and that it wasn’t fair to punish him separately for those charges because they were related to the same crime. Lastly, Ceniceros claimed that the sentences he received were too harsh. The court examined this but found the punishments were acceptable under the law and did not seem overly severe. As a result of these discussions, the court decided to throw out two of his convictions for distribution of controlled dangerous substances but kept the other convictions. The court concluded that his sentences were appropriate and upheld them, stating that the trial judge acted correctly by making the sentences run one after the other instead of at the same time. This summary highlights the main points of the case and the court’s final decisions.