Affirmed Archives - OCCA Opinions

RE-2021-1290

Post author:Staff
Post published:March 23, 2023
Post category:RE

In OCCA case No. RE-2021-1290, Vernon Shawn Miller, Jr. appealed his conviction for the revocation of his suspended sentences. In a published decision, the court decided to affirm the order revoking Miller's suspended sentences but vacated the part of the order that imposed post-imprisonment supervision. One member of the court dissented. Vernon Shawn Miller, Jr. had a serious legal history. He pleaded guilty to multiple charges, including kidnapping and domestic assault, and was given a sentence but had part of it suspended after he completed a special drug program. However, in August 2021, the State filed a motion to revoke his suspended sentence because he broke the rules of his probation, which included failing to complete a required assessment and getting arrested for a new crime. The trial court held a hearing and decided to revoke all of Miller's suspended sentence. Miller argued against this decision, claiming it violated the rules because he should not serve more time than the sentence he was given. The court explained during the hearing that it intended to revoke all of the suspended time left on his sentence. Miller raised several arguments during his appeal. He thought the sentence should not exceed what he had left to serve and believed that the facts used to revoke his sentence came from an earlier trial rather than the hearing itself. Miller also said he did not get good help from his lawyer during the process. The court reviewed Miller's arguments closely. It confirmed that the judge's decision to revoke the entire suspended sentence was valid and within their rights. They found no specific errors in what the trial court did, except for the imposition of post-imprisonment supervision, which should not have been added since it was not part of the original sentence. In the end, the court upheld the revocation of Miller's suspended sentence but removed the part about post-imprisonment supervision, meaning Miller had to serve the time his sentence required without additional conditions.

RE-2019-80

Post author:Staff
Post published:December 14, 2021
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JODY LYNN BAILEY,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2019-80** **SUMMARY OPINION** **LUMPKIN, JUDGE:** Appellant Jody Lynn Bailey appeals from the revocation of his suspended sentences in Oklahoma County District Court Case No. CF-2016-2879. On February 1, 2017, Appellant entered negotiated guilty pleas to four counts of Identity Theft (21 O.S.Supp.2011, § 1533.1) and two counts of Using a Computer with the Intent to Defraud (21 O.S.Supp.2013, § 1953(A)(2)). He was sentenced to a term of imprisonment for fifteen years on each count with all but the first four years suspended. The sentences were ordered to be served concurrently. On November 1, 2018, the State filed an application to revoke the suspended sentences, alleging Appellant committed the new crime of robbery. A hearing on the application was held on January 22, 2019, before the Honorable Ray C. Elliott, District Judge. Judge Elliott granted the State's application and revoked Appellant's suspended sentences in full. On appeal, Appellant asserts the revocation was excessive. We disagree. **ANALYSIS** At the hearing where the State seeks revocation of a suspended sentence, the court must determine whether the suspended portion of the sentence should be executed based on whether the terms of the suspension order have been violated. A violation need be proven only by a preponderance of the evidence. Furthermore, a trial court's decision to revoke a suspended sentence should not be overturned unless there is an abuse of discretion. An abuse of discretion occurs when there is an unreasonable or arbitrary action taken without proper consideration of the facts and law, or a clearly erroneous conclusion that goes against the logic and effect of the evidence presented. In this case, we find no abuse of discretion in Judge Elliott's decision to revoke Appellant's suspended sentences. The determination of witness credibility and the weight given to their testimony is within the exclusive jurisdiction of the trier of fact. Therefore, Judge Elliott's decision to revoke the suspended sentences has not been established as an abuse of discretion. **DECISION** The order of the District Court of Oklahoma County revoking Appellant's suspended judgments and sentences in Case No. CF-2016-2879 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. --- **APPEARANCES ON APPEAL:** **THOMAS P. HURLEY** ASST. PUBLIC DEFENDER 320 ROBERT S. KERR, STE 611 OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT **HALLIE BOVOS** ASST. PUBLIC DEFENDER 320 ROBERT S. KERR, STE 400 OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT **DAN POND** ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR, STE 505 OKLAHOMA CITY, OK 73102 COUNSEL FOR STATE **MIKE HUNTER** OKLA. ATTORNEY GENERAL **CAROLINE HUNT** ASST. ATTORNEY GENERAL 313 N.E. 21st STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE **OPINION BY: LUMPKIN, J.** **LEVIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **HUDSON, J.: Concur** **ROWLAND, J.: Concur** --- For further information, you may download the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2019-80_1734335833.pdf).

S-2020-79

Post author:Staff
Post published:August 20, 2020
Post category:S

In OCCA case No. S-2020-79, Stricker appealed his conviction for First Degree Murder and Desecration of a Human Corpse. In an unpublished decision, the court decided to affirm the ruling of the District Court that dismissed the alternative charge of First Degree Felony Murder during the commission of a kidnapping. None dissented. On April 17, 2019, Stricker was charged with serious crimes including First Degree Murder in Kingfisher County. Later, he faced an amended charge stating he could be guilty of First Degree Premediated Murder or First Degree Felony Murder related to kidnapping. During a hearing, the judge decided to dismiss the kidnapping charge based on insufficient evidence, which led the State to appeal the decision. The State argued that the judge’s decision was incorrect because they believed there was enough evidence to show that a crime occurred and that Stricker was involved. They said that at a preliminary hearing, it's essential to prove that probably a crime was committed and that the person involved might have done it. The judge ruled that although Stricker was in a position to manage his victim, there wasn't enough proof to suggest he intended to kidnap her. The second argument from the State was about the timing of Stricker's motion to quash the charges. They claimed the judge should not have considered this motion because it was filed after he pleaded not guilty. However, the court found that the judge did have the authority to hear the motion, even though the prosecution thought otherwise. Ultimately, the court found no error in the District Court's decision to dismiss the charge of First Degree Felony Murder related to kidnapping and decided to uphold that dismissal.

C-2019-489

Post author:Staff
Post published:March 26, 2020
Post category:C

In OCCA case No. C-2019-489, Taheerah Ayesha Ahmad appealed her conviction for Assault and Battery by means likely to produce death, Child Neglect, and Arson in the First Degree. In a published decision, the court decided to deny her petition for a writ of certiorari and affirmed the District Court's judgment. However, the case was remanded to the District Court to correct errors in the judgment regarding the imposition of costs. One judge dissented.

F-2019-224

Post author:Staff
Post published:February 13, 2020
Post category:F

This document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the appeal of Joseph Eugene Dean. He was convicted in Muskogee County District Court for endangering others while eluding or attempting to elude a police officer after having two or more prior felonies. The jury sentenced him to twenty years in prison and a $2,500 fine. Although he was acquitted of possessing a stolen vehicle, Dean appealed the decision on the grounds of ineffective assistance of counsel. Specifically, he argued his attorney failed to request a cautionary instruction regarding eyewitness identification. The court considered the appeal but found Dean's argument lacked relevant authority or sufficient legal backing. As a result, they deemed the issue forfeited for appellate review in compliance with court rules. Furthermore, the court addressed the merits of the claim, applying the Strickland v. Washington standard. This requires showing both deficient performance by counsel and resulting prejudice to the defense. The court found the cautionary instruction unnecessary due to the reliability of the eyewitness identification in the case and determined the counsel's actions did not constitute ineffective assistance. Consequently, the court affirmed Dean's conviction and sentence.

F-2019-224

Post author:Staff
Post published:February 13, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSEPH EUGENE DEAN,** **Appellant,** **V.** **STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2019-224** --- **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant, Joseph Eugene Dean, was tried and convicted by a jury in Muskogee County District Court, Case No. CF-2017-1030, of Endangering Others While Eluding or Attempting to Elude Police Officer, After Former Conviction of Two or More Felonies (Count 2), in violation of 21 O.S.2011, § 540(B). The jury recommended a sentence of twenty years imprisonment and a $2,500.00 fine. The Honorable Bret A. Smith, District Judge, presided at trial and sentenced Dean in accordance with the jury's verdict, including various costs and fees. The jury acquitted Appellant of Count 1 - Possession of a Stolen Vehicle. Dean appeals, raising the following proposition of error: **I. APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7, AND 20, OF THE OKLAHOMA CONSTITUTION.** After thorough consideration of the record, including transcripts and the parties' briefs, we find that no relief is warranted. **Proposition I:** Dean asserts that defense counsel was ineffective for failing to request a cautionary eyewitness identification instruction (OUJI-CR (2d) 9-19). However, Dean fails to provide relevant authority or argument supporting his claim, thus forgoing appellate review of the issue as per Rule 3.5(C)(6) of the Oklahoma Court of Criminal Appeals. Moreover, we alternatively reject Dean's ineffectiveness claim on its merits. To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced his defense (Strickland v. Washington, 466 U.S. 668, 687 (1984)). In this case, a cautionary eyewitness identification instruction was unwarranted as no serious question exist[ed] concerning the reliability of the [eyewitness's] identification[s] (Robinson v. State, 1995 OK CR 25, ¶ 56, 900 P.2d 389, 404). Counsel’s failure to request such instruction, therefore, was not ineffective since there was no merit to such a request (Logan v. State, 2013 OK CR 2, ¶ 11, 293 P.3d 969, 975). **DECISION** The Judgment and Sentence of the District Court is AFFIRMED. **MANDATE** is ORDERED issued upon the delivery and filing of this decision, pursuant to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals. --- **APPEARANCES:** **AT TRIAL:** LARRY VICKERS 600 Emporia, Suite B Muskogee, OK 74401 COUNSEL FOR DEFENDANT **ON APPEAL:** DERECK J. HURT Oklahoma Indigent Defense System P.O. Box 926 Norman, OK 73070 COUNSEL FOR APPELLANT SEAN WATERS Asst. District Attorney Muskogee District Attorney's Office 220 State Street Muskogee, OK 74401 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. LEWIS, P.J.: CONCUR KUEHN, V.P.J.: CONCUR LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-224_1734779625.pdf)

F-2019-16

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

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY W. WARD,** Appellant, v. **STATE OF OKLAHOMA,** Appellee. **Case No. F-2019-16** **FILED DEC 12 2019** **IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** LUMPKIN, JUDGE: Appellant Johnny W. Ward was tried by jury and found guilty of Assault and Battery with a Deadly Weapon (Count I) (21 O.S.2011, § 652) and Possession of a Firearm (Count II) (21 O.S.Supp.2014, § 1283), both counts After Former Conviction of A Felony, in the District Court of Muskogee County, Case No. CF-2017-1155. The jury recommended as punishment imprisonment for thirty (30) years in Count I and ten (10) years in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence that Appellant appeals. Appellant must serve 85% of his sentence in Count I before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. **Appellant raises the following propositions of error in support of his appeal:** 1. The eyewitness identification of Appellant was based upon an overly suggestive, one-man show-up that violated Appellant's rights to due process and a fair trial. 2. The State's evidence presented at trial was insufficient to establish beyond a reasonable doubt that Appellant committed the crimes of Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony Conviction and his convictions must therefore be reversed with instructions to dismiss. 3. Appellant's sentence is excessive and should be modified. After thorough consideration of these propositions and the entire record, we have determined that under the law and the evidence no relief is warranted. **Proposition I:** Appellant contends the trial court abused its discretion in denying his motion to suppress the in-court identification made by Ms. Davidson after an on-the-scene one person show-up. Appellant argues the pre-trial identification was unnecessarily suggestive and tainted the subsequent identification of Appellant at trial. A one man show-up is not necessarily unduly suggestive or improper. Young v. State, 2000 OK CR 17, ¶ 30, 12 P.3d 20, 34. Absent special elements of unfairness, prompt on-the-scene confrontations [between a victim and a suspect] do not entail due process violations.... Harrolle v. State, 1988 OK CR 223, ¶ 7, 763 P.2d 126, 128, quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969). The one person show-up in this case was not unduly suggestive or so improper as to create a substantial likelihood of irreparable misidentification. The trial court did not abuse its discretion in denying the motion to suppress the identification. However, even if the show-up was unduly suggestive, the same would not automatically invalidate the subsequent in-court identification if that identification can be established as independently reliable under the totality of the circumstances. Young, 2000 OK CR 17, ¶ 31, 12 P.3d at 34. Under the circumstances of this case, we find the in-court identification reliable. As the trial court did not abuse its discretion by allowing into evidence the in-court identification of Appellant, this proposition of error is denied. **Proposition II:** Appellant challenges the sufficiency of the evidence supporting his convictions for Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony. He argues the State failed to show he had anything to do with the alleged crimes. Appellant asserts that the State's evidence showed only that he was in the wrong place at the wrong time. However, evidence showed that Appellant shot his victim in the knee and buttock as the victim begged for his life. Appellant then ran away from the scene, discarding the gun he used and a hoodie he was wearing. Reviewing Appellant's challenge to the sufficiency of the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. Appellant's challenge to the sufficiency of the evidence is denied. **Proposition III:** Appellant argues that his sentence is excessive and should be modified. He asserts that while his sentence is technically within the range provided by law, it does not bear a direct relationship to the nature and circumstances of the offenses. However, Appellant's sentences were within the applicable statutory range (21 O.S.2011, §§ 652(A), 1284 and 51.1(C)). This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. The evidence showed that despite having a prior robbery conviction, Appellant was in possession of a gun, which he used to shoot the victim multiple times as the victim begged for his life. Under these circumstances, the 30 year and 10 year sentences are not excessive. Therefore, modification of the sentences is not warranted and this proposition is denied. Accordingly, this appeal is denied. **DECISION** The JUDGMENT and SENTENCE 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. **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY** **THE HONORABLE THOMAS H. ALFORD, DISTRICT JUDGE** **APPEARANCES AT TRIAL** BRIAN WATTS 222 N. 4TH ST. MUSKOGEE, OK 74401 COUNSEL FOR THE DEFENSE **APPEARANCES ON APPEAL** NICOLLETTE BRANDT OKLA. INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **ORVIL LOGE** DISTRICT ATTORNEY TIM KING ASST. DISTRICT ATTORNEY MUSKOGEE CO. COURTHOUSE MUSKOGEE, OK 74401 COUNSEL FOR THE STATE **MIKE HUNTER** ATTORNEY GENERAL OF OKLAHOMA CAROLINE E.J. HUNT ASST. ATTORNEY GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE **OPINION BY: LUMPKIN, J.** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-16_1734781599.pdf)

F-2018-780

Post author:Staff
Post published:October 17, 2019
Post category:F

In OCCA case No. F-2018-780, Rawson appealed his conviction for lewd or indecent acts to a child under 16. In an unpublished decision, the court decided to affirm the conviction and sentence. One judge dissented. Rawson was found guilty by a jury for multiple counts of lewd acts against a child. The jury recommended life imprisonment for each count, and the trial court imposed the sentences to run one after the other. Rawson challenged his conviction, claiming that the jury was not adequately instructed on the specific acts he allegedly committed. He did not argue that the law was incorrectly stated, just that the instructions should have outlined the acts in more detail. The court explained that instructions for juries are meant to accurately convey applicable law, and in this case, they properly followed the Oklahoma Uniform Jury Instructions. The trial court had provided sufficient instructions, describing the necessary elements that the prosecution needed to prove for each count. Even though Rawson's defense wanted more specificity in the instructions, the court found that the jury was clearly informed about the nature of the charges against him. Since he did not dispute the proof of the allegations or claim that the law was wrongly applied, the court decided that there was no abuse of discretion and upheld the original decision. In conclusion, the court affirmed Rawson's conviction, and the case was officially closed with no errors found in the trial process.

RE-2018-604

Post author:Staff
Post published:October 10, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEROY ALEXANDER, JR.,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-604** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **OCT 10 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Leroy Alexander, Jr., was sentenced to a total of fifteen years for the crime of Rape in the Second Degree, with all but the first year suspended. This appeal arises from the revocation of the remainder of his suspended sentence by the Honorable George W. Butner, District Judge of Seminole County. **Facts:** On April 5, 2018, the State of Oklahoma filed a motion to revoke Appellant's suspended sentence, alleging violations related to failure to attend sex offender treatment and failure to submit to required polygraph examinations. An amended motion on June 1, 2018, added allegations of inappropriate employment at a children's carnival ride during a festival. During the revocation hearing, the State's probation officer testified that Appellant had initially attended treatment sessions but was terminated for non-attendance. Appellant claimed his violations stemmed from financial hardship and lack of transportation. The Court ultimately found that Appellant had not made genuine efforts to comply with the terms of his probation. **Points of Error:** 1. **Proposition I:** Appellant argues that the trial court lacked authority to revoke more than the actual suspended portion of his sentence. He claims the written order incorrectly states that all of the fifteen years was revoked. However, the oral pronouncement during the hearing indicated the revocation was for the remainder of the suspended sentence. The court later issued an amendment to clarify the written judgment, aligning it with the oral ruling. 2. **Proposition II:** Appellant contends the full revocation of his suspended sentence was excessive, arguing that his violations were a result of indigence and lack of resources. The court's discretion in revoking a suspended sentence is established unless there is an abuse of discretion. Judge Butner found the violations were due to Appellant's lack of effort rather than financial difficulties, which was supported by evidence in the record. **Decision:** The order of the District Court of Seminole County revoking the remainder of Appellant's fifteen-year suspended sentence is AFFIRMED. The Mandate is ordered issued upon the filing of this decision. --- **ATTORNEYS:** - **ZACHARY L. PYRON** - **CHAD JOHNSON** (Appellate Defense Counsel) - **CHRISTOPHER G. ANDERSON** - **MIKE HUNTER** - **THEODORE M. PEEPER** (Assistant District Attorney / Attorney General of Oklahoma) **OPINION BY:** **KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-604_1734429602.pdf)

F-2018-36

Post author:Staff
Post published:September 26, 2019
Post category:F

In OCCA case No. F-2018-36, Robert Eugene Brewer appealed his conviction for Sexual Abuse of a Child Under 12. In a published decision, the court decided to affirm Brewer's conviction. One judge dissented. Brewer was tried in Tulsa County for sexually abusing a child under the age of 12. He was convicted by a jury and sentenced to seven years in prison. He was also ordered to serve three years of supervision after his prison term. Brewer appealed the decision, arguing that the trial court made a mistake by allowing evidence related to other crimes that he believed had not been proven. The court reviewed the evidence and arguments presented. The main issue was whether the trial court had the right to let in evidence that showed Brewer had a pattern of behavior related to sexual abuse. This type of evidence is sometimes called propensity evidence. Brewer argued that the trial court should have held a special hearing before allowing this evidence and should have required witnesses to testify in person. However, the court found that the trial judge had done a thorough job. The judge had held multiple hearings and considered the evidence carefully. The judge did not make a mistake by allowing the evidence because they had enough information to decide it was relevant and necessary for the case. Even though Brewer did not object to the evidence when it was presented during the trial, the court considered whether there was a serious mistake that affected the fairness of the trial. After reviewing everything, the court concluded that the trial judge acted correctly. In summary, the court believed that the evidence presented was acceptable and did not harm Brewer's case. Therefore, Brewer’s conviction was upheld, but the court also instructed the district court to make some corrections to its legal documents regarding the correct law that applied to Brewer's actions at the time of the crime. The decision was to keep Brewer's sentence in place while correcting the legal documentation properly.

F-2018-446

Post author:Staff
Post published:September 19, 2019
Post category:F

In OCCA case No. F-2018-446, Byron Craig Herd appealed his conviction for First Degree Burglary. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Byron Craig Herd was found guilty by a jury for breaking into someone's home. The court sentenced him to life in prison because he had a history of other convictions. During the trial, Herd's defense claimed that the prosecutor acted unfairly, which made it hard for him to get a fair trial. Herd argued two main points in his appeal. First, he said the prosecutor made the trial unfair by trying to make the jury feel sorry for the victims. The prosecutor did this by asking the jury about their feelings as potential victims of a burglary, which led to emotional comments during the trial. Secondly, Herd believed his life sentence was too harsh. The court looked carefully at the trial and the evidence. They noted that while some of the prosecutor's comments may have been too emotional, the evidence against Herd was very strong. There were recordings of him inside the victims' house, and he was caught shortly after the crime. The court concluded that, despite some mistakes made by the prosecutor, these did not significantly affect the fairness of the trial because the evidence of guilt was overwhelming. They also determined that Herd's sentence was appropriate given his past crimes and the seriousness of his current crime. In the end, the court denied Herd’s appeal, meaning he would stay in prison for life.

F-2018-322

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

In OCCA case No. F-2018-322, Juan Carlos Renovato-Juaregui appealed his conviction for assault and battery with intent to kill and domestic assault and battery resulting in great bodily harm. In an unpublished decision, the court decided to affirm the judgment and sentence. Judge Drummond merged the two counts into one, sentencing him to fifteen years in prison with credit for time served. The court found that the claims of ineffective assistance of counsel and prosecutorial misconduct did not require reversal of the conviction. No judges dissented.

F-2018-84

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

In OCCA case No. F-2018-84, #1 appealed his conviction for #2 driving a motor vehicle while under the influence of alcohol. In a (published) decision, the court decided #3 to affirm the trial court's order to terminate #1 from the Drug Court Program. #n issued a dissenting opinion. Summary: Carl David Wagnon was charged in 2015 with a serious crime for driving under the influence of alcohol after having previous felony convictions. He pleaded guilty and entered a Drug Court program, which was part of an agreement that allowed him to avoid a long prison sentence if he was successful. However, in 2017, he was accused of a new crime, which led to a hearing where the court decided to remove him from the Drug Court program. Wagnon argued that his removal was unfair for several reasons. He claimed that the court relied too much on secondhand information and did not give him a chance to challenge the evidence against him. He also said that his removal was based on a crime that was not formally charged and that he did not receive enough warnings or chances to correct his behavior before being expelled from the program. Lastly, he believed that the court did not clearly explain why he was being removed. The court looked at these arguments but found that Wagnon was treated fairly and that the decision to terminate him from the Drug Court program was appropriate. They stated that the judge had the right to make this decision and had done so correctly, so they upheld the lower court's ruling. The case was affirmed and Wagnon was sentenced to twenty years in prison.

RE-2018-611

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

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SHAZEL STEEL,** Appellant, v. **STATE OF OKLAHOMA,** Appellee. **No. RE-2018-611** **FILED IN COURT OF CRIMINAL APPEALS, STATE OF OKLAHOMA AUG 15 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** On June 6, 2015, Appellant, Shazel Steel, pled guilty in three separate cases in Tulsa County. The details of these cases are summarized as follows: 1. **Case CF-2015-1948**: Appellant was convicted of Robbery in the First Degree and sentenced to twenty years imprisonment and fined $500.00. 2. **Case CF-2015-2091**: Appellant was convicted on Count 1 of Robbery with a Firearm and Count 2 of Burglary in the First Degree, receiving a twenty-year sentence and a fine of $100.00 for each count. (Count 3 was dismissed). 3. **Case CF-2015-2152**: For Count 1 (Robbery with a Firearm) and Count 2 (Kidnapping), Appellant received a twenty-year sentence each, while Count 3 (Assault with a Dangerous Weapon) led to a ten-year sentence and a fine of $100.00. (Count 4 was dismissed). All sentences were set to run concurrently, with a two-year judicial review period established. During the Judicial Review proceeding on June 5, 2017, Appellant's sentences were modified to be suspended in full. However, the State subsequently filed applications to revoke these suspended sentences based on allegations of violations related to ongoing criminal activity and non-compliance with probation conditions. The revocation hearing revealed that Appellant was in possession of a firearm while driving without a license, which was a violation of probation Rule #7 that prohibited being in a vehicle where firearms are located. Multiple other violations related to probation were also noted, leading to the revocation of Appellant's suspended sentences in full by the Honorable James M. Caputo. On appeal, Appellant challenges the revocation on the following grounds: 1. The evidence was insufficient to establish that he knowingly and willfully possessed a firearm. 2. The District Court abused its discretion in revoking the entire sentence. The Court addressed these propositions: **I.** The standard for revocation is whether the trial court abused its discretion. Given the evidence from Officer Terwilliger indicating that a loaded firearm was found in a car Appellant was operating, the Court deemed that the evidence sufficiently supported the revocation of the suspended sentences. **II.** As for the claim of abuse of discretion, the trial court’s decision to revoke the full suspended sentence was found to be reasonable given the multiple violations of probation. Thus, the Court affirmed the order granting the State's applications for revocation of the suspended sentences in all three Tulsa County District Court Cases. **DECISION:** The order revoking Appellant's suspended sentences is **AFFIRMED**. **APPEARANCES:** - **At Trial**: Kayla Cannon, Assistant Public Defender for Appellant; Sean Waters, Assistant District Attorney for the State. - **On Appeal**: Nicole Herron, Counsel for Appellant; Mike Hunter and Tessa L. Henry, Counsel for the State. **OPINION BY:** **LUMPKIN, J.:** **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **[Download PDF of Full Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-611_1734429007.pdf)**

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)

M-2018-267

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

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ROBERT AARON RODGERS,** **Appellant,** **V.** **THE STATE OF OKLAHOMA,** **Appellee.** **Summary Opinion** **KUEHN, VICE PRESIDING JUDGE:** On January 17, 2017, Appellant was charged in Grady County District Court with Domestic Abuse - Assault and Battery, in violation of 21 O.S.Supp.2014, § 644(C) in Case No. CM-2017-36. Appellant was found guilty following a jury trial and the Honorable Timothy A. Brauer, Special Judge, sentenced him according to the jury's recommendation to a $1,000 fine. Appellant appeals. Appellant raises three propositions of error in support of his appeal: **I.** Mr. Rodgers was denied a fair trial because the trial court refused to instruct on his theories of defense. **II.** The admission of irrelevant and prejudicial expert testimony on domestic abuse was plain error entitling Mr. Rodgers to a new trial. **III.** The audio tape sponsored by Cindy Trapp failed to meet the requisites for admissibility. Admission of this evidence denied Mr. Rodgers a fair trial. After thorough consideration of the entire record before us, including the original record, transcripts, exhibits, and briefs, we find that the law and evidence do not require relief. **Proposition I**: Appellant argues he is entitled to a new trial because the trial court denied his request for jury instructions on defense of another and defense of property. Decisions denying requested jury instructions are reviewed for abuse of discretion. Appellant fails to establish that any unlawful interference with his property occurred or was imminent. The trial court did not abuse its discretion in denying these instructions. **Proposition II**: Appellant contends that the testimony of Amanda Grayson, an expert on domestic violence, was irrelevant and prejudicial. Appellant did not object to the testimony at trial, waiving appellate review except for plain error. The expert testimony was relevant and provided insight into the victim's behavior and Appellant's intent. Thus, Proposition II is without merit. **Proposition III**: Appellant challenges the admission of a duplicate recording of a conversation based on the best evidence rule. Appellant objected on the basis of relevance rather than the best evidence rule, and thus has waived that issue. No genuine question regarding the authenticity of the duplicate was established, and the trial court took steps to ensure the jury was not misled by the recording. Therefore, Proposition III is denied. **Decision**: The Judgment and Sentence of the trial court is AFFIRMED. The MANDATE is ORDERED issued upon the filing of this decision. **APPEARANCES** **COUNSEL FOR DEFENDANT** ED GEARY **COUNSEL FOR APPELLANT** DAVID AUTRY **COUNSEL FOR STATE** NATALIA LEVCHENKO MIKE HUNTER KATHERINE MORELLI **OPINION BY**: KUEHN, V.P.J. **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** **RA/F** --- This summary captures the key elements of the case involving Appellant Robert Aaron Rodgers, the propositions of error raised, and the court's analysis and decisions, providing a streamlined understanding of the court's ruling.

F-2018-43

Post author:Staff
Post published:July 25, 2019
Post category:F

In OCCA case No. F-2018-43, the appellant appealed his conviction for possession of a firearm after a felony conviction and falsely personating another to create liability. In an unpublished decision, the court decided to affirm his conviction and sentence. One judge dissented. The appellant, Anthony Paul Ornder, was found guilty by a jury in the Washington County District Court of two counts of possession of a firearm after a prior felony conviction and one count of falsely impersonating another. The jury recommended a total sentence of forty years for each firearm count and forty-five years for the impersonation count, all to be served at the same time. Ornder raised several arguments on appeal. He claimed that the state did not have enough evidence to prove he possessed the firearm or to show that he gained any benefit from using a false identity. He also argued that his lawyer did not represent him properly, which hurt his chances of a good defense, and asked the court to reduce his sentence because it was too harsh. The court looked carefully at the whole case, including evidence, witness testimonies, and records. They found that there was enough evidence for a reasonable person to conclude that he was guilty. They explained that the law allows both direct and indirect evidence to support charges. The court determined that the claims about ineffective help from his lawyer were not strong enough because they were based on guesses without solid evidence. Lastly, regarding the length of the sentence, the court concluded that it did not seem overly severe given his past criminal record and the nature of his actions during the incident. They affirmed his judgment and sentence, meaning they agreed with the original decision without changes.

RE-2018-674

Post author:Staff
Post published:July 18, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEON DESHAWN WRIGHT,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. RE-2018-674** **Filed July 18, 2019** **SUMMARY OPINION** **HUDSON, JUDGE:** This case involves an appeal by Appellant Leon Deshawn Wright from the revocation of his suspended sentence in Oklahoma County District Court, Case No. CF-2014-1676. **Background:** On April 30, 2015, Wright entered a guilty plea to Knowingly Concealing Stolen Property after a previous felony conviction, for which he was sentenced to five years of imprisonment, all suspended. The State filed an application to revoke this sentence on May 9, 2016, citing multiple violations, including failure to obtain a mental health assessment, failure to report to a drug rehabilitation program, failure to pay supervision fees, and possession of marijuana. A hearing was conducted on August 27, 2018, overseen by the Honorable Bill Graves, where the judge granted the State's application for revocation, leading to the current appeal. **Analysis:** At a revocation hearing, the court determines if the terms of the probation have been violated, which should be proven by a preponderance of the evidence. Revocation should not be overturned unless there's an abuse of discretion by the trial court. 1. **Possession of Marijuana:** Appellant argues insufficient evidence for this charge. The court agrees but finds sufficient evidence for the remaining violations. 2. **Failure to Pay Fees:** Appellant contends his failure to pay fees was not willful. The court finds it was Appellant's responsibility to demonstrate he was not willful in this failure. As Appellant did not provide evidence regarding his employment status or good-faith efforts to pay, the burden was not met. 3. **Full Revocation Justification:** Appellant argues that the violations do not justify full revocation. However, the court finds the failure to report alone is an adequate basis for revoking the suspended sentence. **Decision:** The Oklahoma Court of Criminal Appeals affirms the District Court's order revoking the suspended sentence in Case No. CF-2014-1676. **Judges’ Concurrence:** - **KUEHN, V.P.J.:** Concurred in part/dissented in part, stating that while he agreed some violations justified revocation, he dissented concerning the failure to pay fines, emphasizing that Appellant's evidence of homelessness and unemployment should have been considered. He finds the court should demonstrate more clarity on when failure to pay fines due to indigence suffices to avoid revocation. For further details and the full legal opinion, you can [download the PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-674_1734423903.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.

J-2019-0092

Post author:Staff
Post published:June 13, 2019
Post category:J

**Summary of the Case: Jeremy Dwayne Lavorchek v. State of Oklahoma** **Court:** Oklahoma Court of Criminal Appeals **Case Number:** F-2018-263 **Decision Date:** June 13, 2019 **Overview:** Jeremy Dwayne Lavorchek was convicted by a jury in Garvin County for multiple crimes associated with an armed robbery at a pharmacy. The jury found him guilty on all counts, which included First Degree Robbery, Use of a Firearm in the Commission of a Felony, Conspiracy to Commit a Felony, multiple counts of Kidnapping, and multiple counts of Assault with a Dangerous Weapon. Following these convictions, the jury recommended life sentences on all counts. **Key Crimes Committed (Counts):** 1. First Degree Robbery 2. Use of a Firearm in the Commission of a Felony 3. Conspiracy to Commit a Felony 4-6. Kidnapping (3 counts) 7-9. Assault with a Dangerous Weapon (3 counts) **Sentencing:** The trial court, upon sentencing, ordered the sentences for counts 2 through 9 to run concurrently but consecutively to Count 1, which meant that Lavorchek must serve 85% of the life sentence for the robbery before becoming eligible for parole. **Propositions of Error Raised on Appeal:** Lavorchek raised eight propositions, primarily focusing on claims of double punishment, denial of self-representation, ineffective assistance of counsel, errors in sentencing, and cumulative effect of errors. 1. **Double Punishment Allegations:** Lavorchek argued that his convictions for robbery and the various assaults and kidnappings constituted double punishment. The court rejected these claims, emphasizing that the crimes were distinct and occurred sequentially, and separate punishments were authorized. 2. **Self-Representation:** He contended he was denied the right to represent himself. However, the court upheld the trial judge's discretion, stating Lavorchek's request was made after the trial had already commenced, which could be seen as an abuse of the privilege. 3. **Ineffective Assistance of Counsel:** Lavorchek claimed a continuance was wrongly denied, affecting his counsel's performance. The court found no constitutional deficiency as the counsel performed effectively under the circumstances. 4. **Fair Sentencing Hearing:** He alleged improper consideration of aggravating evidence at sentencing. The court found that the information presented was appropriate. 5. **Consecutive Sentencing:** Lavorchek argued the trial court abused its discretion by ordering consecutive sentences, but the court ruled this was within the judge's authority and not excessive. 6. **Cumulative Error:** The court ruled there was no error to accumulate since all propositions were denied. **Outcome:** The Oklahoma Court of Criminal Appeals affirmed the trial court's judgment and sentence, indicating that Lavorchek received a fair trial and proper sentencing under the law. **Legal Principles Involved:** - Double jeopardy protections - Right to self-representation - Effective assistance of counsel - Sentencing discretion of trial courts - Cumulative error doctrine The case underscores the judicial principles guiding the implications of multiple charges arising from a single criminal event and the procedural safeguards in criminal trials. **Link:** For further reference, the full opinion can be found at [Oklahoma Court of Criminal Appeals](https://opinions.wirthlawoffice.com/wp-content/uploads/J-2019-0092_1734447399.pdf).

F-2018-531

Post author:Staff
Post published:June 13, 2019
Post category:F

In OCCA case No. F-2018-531, Joseph Green Stoker appealed his conviction for Rape by Instrumentation (Count 1) and Lewd Molestation (Count 2). In a published decision, the court decided to affirm the Judgment and Sentence of the district court, meaning Stoker would serve ten years on each count, with the sentences served one after the other. One judge dissented. Stoker argued that he was not allowed to present a proper defense because his witnesses were not allowed to testify. The court found that the trial judge was correct in excluding the evidence because Stoker did not follow the proper legal steps to get those witnesses into the trial. Stoker also claimed that the prosecutor acted unfairly, which made it hard for him to have a fair trial. The court looked at previous cases and decided that what the prosecutor did was not harmful enough to change the outcome of Stoker's trial. Another point made by Stoker was that his lawyer did not do a good job defending him. However, the court said Stoker could not prove that this lack of help from his lawyer actually affected the outcome of the trial. Finally, Stoker complained that the trial court wrongly ordered him to pay some costs while he was still in prison. The court explained that there are laws that allow part of an inmate's earnings in prison to be used for paying court fees, so they found no error in the judge's decision. Overall, the court did not find any mistakes significant enough to affect Stoker's conviction or sentencing, so they upheld the original decision.

F-2017-949

Post author:Staff
Post published:June 13, 2019
Post category:F

In OCCA case No. F-2017-949, Montoyia Corbitt appealed her conviction for Manslaughter in the First Degree-Heat of Passion. In an unpublished decision, the court decided to affirm her judgment and sentence. One judge dissented. Montoyia Corbitt was tried for a crime that involved the death of another person. During her trial, she claimed she acted in self-defense. However, the jury found her guilty, and she was given a six-year prison sentence. The law said she had to serve at least 85% of her sentence before she could be considered for parole. Corbitt made three main arguments in her appeal. First, she believed the evidence was not enough to prove she did not act in self-defense. The court explained that self-defense is a reason someone can use force, but it has to be reasonable. They found there was enough evidence that showed Corbitt's fear was not reasonable and, therefore, not justified in using deadly force. Second, Corbitt argued that a police officer’s opinion in her trial influenced the jury and was not fair. The court reviewed this matter and decided that the officer's testimony was allowed because it was based on what he observed during the investigation. They concluded that his statements helped clarify what happened during the incident without directing the jury toward a specific conclusion. Third, Corbitt was concerned about a photograph that showed her face during a police interview. She thought it was not relevant and unfairly prejudiced her case. The court ruled the photo was relevant because it helped support her claim of self-defense. They believed the image added to the understanding of the situation rather than just being harmful to her. Ultimately, after looking at all the arguments and evidence, the court agreed with the jury’s decision and affirmed her conviction.

F-2018-326

Post author:Staff
Post published:May 23, 2019
Post category:F

In OCCA case No. F-2018-326, #1 appealed his conviction for #stalking. In a (published) decision, the court decided #the State proved that the protective order was valid during the time of the incidents. #2 dissented.

RE-2018-208

Post author:Staff
Post published:May 16, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DESMOND ZHUMONSHA SMITH,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2018-208** **Summary Opinion** **FILED MAY 16, 2019** **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant Desmond Zhumonsha Smith appeals the revocation of his suspended sentence from the Garvin County District Court, Case No. CF-2015-498, presided over by the Honorable Leah Edwards. On February 26, 2016, Smith entered a plea of nolo contendere to charges of Possession of a Controlled Dangerous Substance and Falsely Personate Another to Create Liability. He was subsequently sentenced to twenty years imprisonment for each count. In his first proposition of error, Smith contends that the State failed to provide sufficient evidence to support the claim that he violated the conditions of his probation by engaging in new criminal behavior, specifically Unauthorized Use of a Motor Vehicle and Placing Bodily Fluid on a Government Employee. Upon review, this assertion lacks merit. The standard applicable in revocation hearings is a preponderance of the evidence, which requires the State to demonstrate that it is more likely than not that the violations occurred (Tilden v. State, 2013 OK CR 10). Testimony from Officer Cooper and Sheriff Rhodes sufficiently established the necessary proof of Smith's involvement in the new crimes. In his second proposition, Smith argues that the revocation of ten years of his twenty-year suspended sentence is excessive and asserts that it should be modified. The law stipulates that proving just one violation of probation is adequate for revocation (Tilden, 2013 OK CR 10). In this case, the State demonstrated multiple violations, including new charges from two counties. Furthermore, Judge Edwards did not fully revoke Smith's remaining sentence, affirming that such decisions fall under the trial court's discretion, which will not be overturned unless an abuse of that discretion is clearly shown (Jones v. State, 1988 OK CR 20). **DECISION:** The revocation of Desmond Zhumonsha Smith’s suspended sentence in Garvin County District Court Case No. CF-2015-498 is **AFFIRMED**. The mandate is ordered to be issued upon the filing of this decision, pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals. **APPEARANCES:** **For Defendant:** Arlan Bullard 110 N. Willow St., Ste. B Pauls Valley, OK 73075 **For Appellant:** Kristi Christopher P.O. Box 926 Norman, OK 73070 **For State:** Laura A. McClain Asst. District Attorney 201 W. Grant St., Room 15 Pauls Valley, OK 73075 Mike Hunter Attorney General of Oklahoma Theodore M. Peeper Asst. Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 **OPINION BY:** Kuehn, V.P.J. **CONCUR:** Lewis, P.J., Lumpkin, J., Hudson, J. **CONCUR IN RESULTS:** Rowland, J. [**Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-208_1734702735.pdf)

F-2018-359

Post author:Staff
Post published:May 16, 2019
Post category:F

In OCCA case No. F-2018-359, Antonio Tiwan Taylor appealed his conviction for robbery with a firearm, conspiracy to commit a felony, and being a felon in possession of a firearm. In an unpublished decision, the court decided to affirm his convictions. One judge dissented. Taylor was found guilty of robbing a home along with two other men. During the robbery, they used guns and threatened the residents, forcing them to the floor and taking their belongings. After the robbery, one of the witnesses, Felicia Alvarado, identified Taylor as one of the robbers. Alvarado explained that even though Taylor wore a bandanna over his face, she saw his face clearly when it fell off for a moment. A couple of weeks later, the police found jewelry that had been taken during the crime in Taylor's possession. Another accomplice in the robbery, who had pleaded guilty, also testified against Taylor, naming him as a participant. Although that person changed his story during Taylor's trial, the court still considered his initial statement as evidence. Taylor raised multiple points in his appeal. He argued that the evidence wasn’t enough to prove he was guilty. The court disagreed, stating that the witness's strong identification of him and the jewelry found with him provided enough evidence. Taylor also argued that the trial court should have instructed the jury to be cautious about eyewitness testimony. The court ruled that since there was solid evidence, the instruction wasn't necessary. Next, Taylor claimed it was unfair to convict him for both robbery and gun possession since they were connected to the same crime. The court found no issue with this and explained that the laws allowed for separate convictions in these cases. Finally, Taylor argued that all these points together should lead to a new trial. However, since the court found no errors in the points raised, they denied this request as well. In conclusion, the court upheld the original sentences of thirty years for the robbery counts and ten years for the other charges.