Appeal Decision

F-2018-1161

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KENNETH ALLEN DAY,** Appellant, **V.** **STATE OF OKLAHOMA,** Appellee. Case No. F-2018-1161 **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant Kenneth Allen Day was tried and convicted by a jury in the District Court of Oklahoma County (Case No. CF-2017-2586) of: 1. **Count 1:** Sexual Battery (21 O.S.Supp.2015, § 1123(B)) 2. **Counts 2 and 3:** Indecent Exposure (21 O.S.2011, § 1021) The jury recommended a sentence of 30 days imprisonment on Count 1, and 1 year imprisonment each on Counts 2 and 3. The Honorable Timothy R. Henderson, District Judge, presided over the trial and executed the sentences as per the jury's recommendations, ordering them to run consecutively and consecutively to Oklahoma County Case No. CF-16-6470. Day was granted credit for 177 days served and was subject to various costs and fees. Day appeals, raising the following proposition of error: **I. THE TRIAL COURT INCORRECTLY INTERPRETED OKLA. STAT. TIT. 57, § 138(G) BY REFUSING TO GRANT MR. DAY CREDIT FOR ALL TIME SERVED WHILE AWAITING TRIAL AND SENTENCING, CLAIMING THAT THE STATUTE WAS DISCRETIONARY AND NOT MANDATORY.** Upon a thorough review of the entire record including transcripts, exhibits, and the parties' briefs, we find no legal error necessitating relief. Therefore, Day's judgments and sentences are AFFIRMED. **Proposition I:** Day's claim pertains to the nature of credit for time served—whether it is mandatory or discretionary. Citing *Loyd v. State*, 1981 OK CR 5, 624 P.2d 74, Day contends that 57 O.S.Supp.2015, § 138(G) mandates credit for all time served prior to judgment and sentence. However, as recently discussed and clarified in *Luna-Gonzales v. State*, 2019 OK CR 11, this argument has been rejected. This Court noted that *Loyd* is inconsistent with the majority of case law on this subject and that the Oklahoma Legislature has amended § 138 multiple times since 1980, which indicates a legislative intent to modify the ruling in *Loyd*. The current statute indicates that defendants automatically receive credit for jail time served only post-judgment and sentencing. Significantly, *Loyd* is overruled to the extent it conflicts with this interpretation. We also recognize that the district court exercised its discretion appropriately in awarding Day partial credit for time served, which aligns with previous ruling in *Luna-Gonzales* that grants sentencing judges discretion regarding credit for pre-sentencing incarceration. Thus, Day's argument is rejected, and his assertion is firmly denied. **DECISION** The judgments and sentences of the District Court are AFFIRMED. According to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals, the MANDATE shall be issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE** **APPEARANCES AT TRIAL** RICHARD HULL (Counsel for Appellant) HALLIE ELIZABETH BOVOS KRISTEN MESSINA, ASST. PUBLIC DEFENDER **APPEARANCES ON APPEAL** LORI MCCONNELL MIKE HUNTER RACHEL SMITH JULIE PITTMAN, ASST. ATTORNEY GENERAL, (Counsel for Appellee) **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR For further details and access to full judgment, [Click Here to Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1161_1734786325.pdf)

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F-2018-850

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Here’s a summary of the case involving Johnny Aldric Samples, III, as presented in the Court of Criminal Appeals of the State of Oklahoma: **Case Overview:** - **Appellant:** Johnny Aldric Samples, III - **Charges:** Four counts of Child Sexual Abuse, violating Oklahoma law (21 O.S.Supp.2014, § 843.5(E)). - **Trial Outcome:** Convicted by jury; sentenced to life imprisonment on each count, with sentences to run consecutively. - **Appeal Filed Against:** The judgment and sentence. **Propositions of Error Raised by the Appellant:** 1. **Admission of Hearsay Statements:** Claims the trial court improperly admitted hearsay from child witnesses, arguing B.L. did not meet the disability requirement for hearsay exceptions. 2. **Admission of Irrelevant Evidence:** Contends the trial court admitted prejudicial evidence related to B.L.'s mother's suicide. 3. **Insufficient Evidence (B.L.):** Argues there was inadequate evidence of sexual abuse against B.L. 4. **Insufficient Evidence (C.L.):** Claims insufficient evidence to support convictions for sexually abusing C.L. 5. **Ineffective Assistance of Counsel:** Suggests his counsel failed to properly object to hearsay statements regarding B.L. 6. **Cumulative Errors:** Argues that the cumulative effect of errors denied him a fair trial. 7. **Consecutive Sentencing:** Contends the trial court abused its discretion by ordering sentences to run consecutively, claiming it results in an excessive sentence. **Court's Analysis and Decisions:** - The court found no merit in the claims regarding hearsay evidence or the sufficiency of evidence relating to both B.L. and C.L. The analysis included verifying B.L.'s status as a disabled child, which justified the admission of her hearsay statements. - Though the court acknowledged an error in admitting evidence related to B.L.'s mother's suicide, it deemed the error harmless, as overwhelming evidence supported the convictions. - The court concluded that the convictions against C.L. were also adequately supported by credible testimony. - Regarding ineffective assistance of counsel, the court found no deficiency since no errors were present in the trial. - The cumulative error argument was rejected as no single error warranted reversal. - Finally, the court supported the trial court's sentencing decision, stating the consecutive sentences aligned with the nature of the offenses. **Conclusion:** The judgment and sentence against Johnny Aldric Samples, III, were affirmed, with the court finding no errors that warranted relief. **Concurrence:** Vice Presiding Judge Kuehn expressed disagreement with the constitutionality of the child sexual abuse statute but concurred in results based on existing law. He noted a significant change in the law due to a recent decision (A.O. v State) affecting jury instructions in similar cases and criticized the denial of a supplemental brief based on this change. For more detailed information, you can reference the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-850_1735154293.pdf).

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S-2018-1173

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In OCCA case No. F-2018-895, Ward appealed his conviction for possessing a firearm after felony convictions. In an unpublished decision, the court affirmed the conviction, finding no error in the arrest and evidence. One judge dissented. The ruling concluded that the evidence supported the conviction despite Ward's claims.

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RE-2013-261

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In OCCA case No. RE-2013-261, Harjo appealed his conviction for obtaining merchandise and cash by bogus checks. In an unpublished decision, the court decided to reverse the revocation of Harjo's remaining suspended sentences. One judge dissented. To give a bit more background, Harjo had initially entered a guilty plea to three counts of obtaining merchandise and cash with bogus checks and received suspended sentences on those counts. He was supposed to follow certain rules while on probation. However, he faced multiple issues and missed a court date, leading to a bench warrant for his arrest. Although he was later ordered to complete a drug and alcohol program, he still faced trouble and did not appear for court when required. Eventually, in 2013, the court conducted a hearing regarding his probation violations. Interestingly, the State did not present any new evidence at this hearing. Because the State admitted that it had made a mistake, the court ruled to reverse the decision made to revoke Harjo's suspended sentences. This meant that the earlier decision to punish him again was incorrect, since he had already been punished for the previous violations. In conclusion, the appeals court found that it was not right to revoke Harjo's suspended sentences based merely on earlier violations, and it decided that Harjo's sentences would remain suspended.

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C 2009-665

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In OCCA case No. C 2009-665, Sutton appealed his conviction for possession of child pornography. In a published decision, the court decided to grant Sutton's request to withdraw his guilty plea. Sutton dissented. Petitioner Donald Edward Sutton, Jr. had pleaded guilty to a serious crime. The judge sentenced him to twenty years in prison, but he would only serve eight of those years before possibly getting out. After the plea, Sutton thought things were unfair and said he didn't understand everything when he agreed to plead guilty. Sutton said he didn’t know about important details like having to spend 85% of his time in prison before being eligible for parole or that he would have to register as a sex offender. He felt that he didn't get the help he needed from his lawyer when he entered his plea and when he tried to take it back later. Sutton thought his 20-year sentence was too harsh, especially because he believed there were reasons to be lenient. After reviewing all the information provided, the court agreed that Sutton wasn't given all the facts he needed to make an informed choice about his plea. This omission made his agreement invalid since he didn’t enter it knowingly and voluntarily. The court decided that he should be allowed to withdraw his plea and gave orders for the case to go back for further consideration. The other claims Sutton made about his lawyer and the fairness of his sentence became unnecessary to discuss because of this main issue. In summary, Sutton was given a chance to change his plea because the court found that he wasn’t properly informed about important consequences of his decision.

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F-2009-530

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In OCCA case No. F-2009-530, Jacinda Simone Osborne appealed her conviction for First Degree Robbery. In an unpublished decision, the court decided to modify her conviction to Second Degree Robbery. No one dissented. Osborne was found guilty of robbing someone in Tulsa County. The jury said she should serve fifteen years in prison and pay a $5000 fine. She felt that the trial did not go well for her. She raised three main points that she thought were errors. First, she believed the court should have explained to the jury what serious bodily injury meant. Second, she thought the jury should have been given the option to consider a lesser crime, Second Degree Robbery. Third, she claimed there wasn't enough evidence to support the serious charge of First Degree Robbery. The court reviewed everything carefully. They looked at the facts of the case and the laws. They agreed with Osborne on her third point. Even though the victim was hurt during the robbery, the proof did not show that the robbery met the higher standard needed for First Degree Robbery. There were no serious injuries or threats that would elevate the crime from Second to First Degree. So, the court changed her conviction to Second Degree Robbery, which is a lesser charge. The court said her original sentence would stay the same. This means that while the serious charge was changed, she would still serve fifteen years in prison and pay the fine. Since they found merit in her third point, they did not need to decide on the first two points she raised. The conclusion was that Osborne's conviction was modified, but the punishment was upheld.

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F-2008-620

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In OCCA case No. F-2008-620, Vincent Vasquez appealed his conviction for Sexual Abuse of a Child. In a published decision, the court decided to affirm the convictions and sentences but vacated the order of restitution. No one dissented. Vasquez was found guilty by a jury on three counts related to sexual abuse of a child. He received eight years in prison for each count, which would be served one after another. However, part of his sentence was suspended, meaning he wouldn't have to serve the full time for all counts right away. Vasquez argued that there were several mistakes made during his trial. First, he claimed that the evidence wasn't strong enough to support his convictions, saying the victim's testimony was inconsistent. The court said that the ruling was valid because the victim's main story was consistent and believable, even if she forgot some minor details. Second, Vasquez believed that important evidence was not allowed in court, which he thought would help prove his side of the story. However, the court decided that the evidence offered was not relevant to the case. Third, he argued that the jury was not properly instructed regarding how to look at the evidence. The court concluded that the instructions given were sufficient and did not harm his case. Fourth, Vasquez objected to an order to pay restitution, which the State admitted was incorrectly imposed. The court agreed to remove that requirement. Lastly, Vasquez suggested that the combination of all these errors should lead to his conviction being overturned. The court found that there were no cumulative errors that warranted relief. In conclusion, the court maintained Vasquez’s convictions but removed the restitution order.

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J-2008-800

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In OCCA case No. J-2008-800, M.H. appealed his conviction for First Degree Murder. In a published decision, the court decided to affirm the District Court's ruling that M.H. should be certified to stand trial as a Youthful Offender. The State of Oklahoma dissented. M.H. was charged with a serious crime when he was just shy of 15 years old. He wanted to be treated as a juvenile instead of as an adult. M.H.'s request was initially denied, but later, a judge decided that he could be treated as a Youthful Offender. The State disagreed and appealed the decision, arguing several points. The State thought the trial court should have given more importance to certain laws about how young people are treated in court. They also believed that M.H. didn't prove he could be helped in a juvenile system, and they claimed it was a mistake to put the burden of proof on them. In court, the judges looked at different kinds of evidence, including expert opinions that suggested M.H. could benefit from treatment that the Youthful Offender System offered. After reviewing everything, the judges decided that the trial court did not make a mistake, and they agreed that M.H. could be certified as a Youthful Offender. The final outcome was that M.H. would not automatically be treated as an adult for the serious crime he was accused of, and he was given a chance for treatment instead. This decision was seen as correct by the judges who agreed, while the dissenting opinion did not support this view.

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F-2004-971

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In OCCA case No. F-2004-971, Donald Eugene Stevenson appealed his conviction for Child Abuse. In an unpublished decision, the court decided to modify his sentence to life imprisonment. One judge dissented. Donald Eugene Stevenson was found guilty by a jury for hurting a child, which is known as child abuse. The jury gave him a very long sentence of 100 years and 3 months in prison. After he appealed, he pointed out some problems he believed happened during his trial that should lead to a new trial or a shortened sentence. Firstly, he argued that the jury saw too much information about the child's suffering, including a video that was too emotional and shouldn’t have been shown. This, he said, made the jury feel too strongly against him. However, the court found that the video was important to show how badly the child was hurt, and it helped explain what happened, so they believed it was okay to include it. Since he didn’t complain about the video during the trial, the court didn’t see any major mistake. Secondly, Stevenson said there were details about his previous crimes that shouldn’t have been shared. The court agreed that including this information was wrong because it might have made the jury think he deserved a harsher punishment than they already decided. Because of this mistake and those details from his past, the court decided to change his punishment to life in prison instead of a long stretch of years. In the end, the court said Stevenson’s conviction stood—meaning he was still found guilty—but they changed how long he would have to stay in prison. One judge didn’t fully agree with changing the sentence to life, but the majority of the judges went along with it.

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F-2003-1252

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In OCCA case No. F-2003-1252, Reed appealed his conviction for possession of a firearm after a former felony conviction. In a published decision, the court decided to affirm the conviction but modify the sentence from life imprisonment to twenty years. One judge dissented. Reed faced charges including first-degree murder and possession of a firearm, but the jury could not agree on the murder charge, leading to a mistrial for that count. The state decided not to pursue one of the firearm charges. The jury convicted Reed on the remaining firearm possession charge and recommended a life sentence. On appeal, Reed argued that the trial court made a mistake by not declaring a mistrial for each charge after the jury couldn't reach a verdict on the murder. He believed his life sentence was excessive and went against the Constitution. The court reviewed the facts and concluded that the trial court acted within its rights when it denied Reed's request for a mistrial. However, they found that a life sentence for the firearm possession was too harsh under the circumstances. As a result, they changed Reed's sentence to twenty years in prison instead of life. The final decision was to keep Reed's conviction, but to lessen his punishment.

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