Assault and Battery

M-2018-267

  • Post author:
  • 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.

Continue ReadingM-2018-267

J-2018-1066

  • Post author:
  • Post category:J

**Court of Criminal Appeals of the State of Oklahoma** **Case No. J-2018-1066** **Decided on: August 8, 2019** **A.O. (Appellant)** **v.** **The State of Oklahoma (Appellee)** **Opinion of the Court by Presiding Judge Lewis:** **Background:** The appellant, A.O., a minor, was charged as a juvenile with Sexual Battery per 21 O.S. Supp. 2017, § 1123(B) in McIntosh County District Court (Case No. JDL-2017-29). Subsequently, on February 26, 2018, an Amended Delinquent Petition was filed, charging him with Child Sexual Abuse under 21 O.S. Supp. 2014, § 843.5(E). Following a non-jury trial held on September 25, 2018, the court adjudicated A.O. as delinquent. **Issues on Appeal:** 1. A.O. contends he was never informed of his right to a jury trial, claiming a violation of due process. 2. He argues that the conduct in question—touching the victim's buttocks over clothing—does not constitute Child Sexual Abuse as intended by the legislature. 3. A.O. claims the prosecutor expressed an opinion on his guilt, violating his due process rights. **Rulings:** 1. **Proposition I**: The court found no merit in A.O.'s claim regarding his jury trial rights. The record demonstrated that both A.O. and his guardian were informed of the right to a jury trial and that they consciously waived this right. 2. **Proposition II**: On this issue, the court ruled in favor of A.O. The court determined that the state failed to prove each element of the underlying crime of Child Sexual Abuse. Specifically, the court stated that to convict under § 843.5(E), the state bears the burden of proving the elements of lewd acts, which were not sufficiently demonstrated in court. 3. **Proposition III**: The court found the prosecution's remarks during the trial did not constitute plain error, as the comments related to the evidence presented and did not deprive A.O. of a fair trial. **Final Decision:** The adjudicating order of Child Sexual Abuse was **REVERSED**. The matter is **REMANDED** to the district court to amend the adjudication to Assault and Battery under 21 O.S. 2011, § 644. The court affirmed the adjudication as modified. **Dissenting Opinion by Vice Presiding Judge Kuehn:** Judge Kuehn expressed concerns about the implications of the majority ruling, arguing that it effectively renders § 843.5(E) unconstitutional due to its vagueness and conflict with age-based elements in other statutes, which could lead to arbitrary enforcement. The dissent maintains that the elements of § 843.5(E) should not require additional instructions unless those elements are included in the Information—and calls for the conviction to be reversed entirely based on the statute's broad language, which might punish conduct that is arguably not criminal. In conclusion, the court's ruling finds resonance in the legislative intention behind the statutes governing Child Sexual Abuse and the need for clarity in legal definitions, especially concerning age restrictions in sexual offenses. **Links:** [Download PDF of the Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/J-2018-1066_1734449875.pdf)

Continue ReadingJ-2018-1066

RE-2018-89

  • Post author:
  • Post category:RE

In the case of Brandon Christopher Looney v. The State of Oklahoma, the Court of Criminal Appeals upheld the trial court's decision to revoke Looney's twenty-year suspended sentence based on multiple violations of probation. Looney had pled nolo contendere to assault and battery with a dangerous weapon, leading to a suspended sentence on the condition he comply with certain probation rules. The court reviewed allegations against Looney, including failing to report to his probation officer, changing his residence without notification, associating with convicted felons, failing a drug test, possessing weapons, and being charged with multiple offenses related to drug and firearm possession. At the revocation hearing, evidence was presented detailing these violations, including a deputy witnessing drug use and discovering firearms and drugs in the residence where Looney was staying. Looney argued that the judge erred in denying his demurrer regarding weapon-related allegations since the firearms were not found in his specific bedroom and there was no evidence he was aware of their presence. However, the court explained that as a convicted felon on probation, his residency rules prohibited him from firearms, regardless of awareness. The burden of proof for probation violations is a preponderance of evidence, and the trial judge's discretion to revoke the sentence was upheld. Looney also claimed that the judge did not consider lesser sentencing options and that the revocation was excessive. The court found no evidence that the judge neglected to consider alternatives and noted that Looney had repeatedly ignored probation requirements immediately after being placed on probation. Ultimately, the court denied all of Looney's propositions of error, concluding there were no abuses of discretion or violations of due process. Therefore, the order to revoke his suspended sentence was affirmed.

Continue ReadingRE-2018-89

M-2018-259

  • Post author:
  • 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.

Continue ReadingM-2018-259

RE 2018-0397

  • Post author:
  • Post category:RE

In OCCA case No. RE 2018-0397, Wesley Scot Kilpatrick appealed his conviction for robbery in the second degree. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence. One judge dissented. Wesley Scot Kilpatrick had pleaded guilty to robbery in the second degree, and a more serious charge of burglary in the first degree was dropped. He received a seven-year suspended sentence, which means he would not go to prison right away if he followed certain rules. He also had to pay a fine and court costs. Later, the state said Kilpatrick did not follow the rules of his suspended sentence. They claimed he failed to pay his costs and restitution, got into trouble with the police, and committed another crime. Because of this, a court hearing was held to decide if his suspended sentence should be revoked. At the hearing, the judge decided to revoke his sentence completely, meaning Kilpatrick would have to serve the full seven years in prison. Kilpatrick disagreed with this decision and appealed, arguing that the judge made a mistake in revoking his sentence. However, the court found that the judge did not make an error. They believed the judge had the right to make that decision based on the facts presented. The court defined an abuse of discretion as a decision that is clearly wrong and not based on logic or evidence. Since Kilpatrick did not show that the judge was wrong, the court affirmed the decision to revoke his suspended sentence. In the end, Kilpatrick would have to serve the full time in prison for his robbery conviction.

Continue ReadingRE 2018-0397

RE-2018-231

  • Post author:
  • Post category:RE

This summary opinion addresses the appeal of Latarsha Grant concerning the revocation of her suspended sentences in two criminal cases. Below is a concise breakdown of the key points from the opinion: ### Background - Latarsha Grant was convicted in 2007 for Assault and Battery with a Dangerous Weapon (Case No. CF-2007-359) and sentenced to ten years with the sentence suspended. - In 2011, she was involved in new criminal activities leading to further actions against her suspended sentence. - By 2012, she had entered a guilty plea in a new case regarding drug distribution (Case No. CF-2011-269) with a concurrent ten-year suspended sentence after completing a rehabilitation program. - In 2017, a motion to revoke her suspended sentences was filed due to allegations of her involvement in a robbery, leading to the revocation hearing in 2018. ### Procedural History - The trial court, after hearing evidence, revoked her suspended sentences due to her involvement in the new crimes and appeared to find sufficient evidence against her. ### Appellate Claims Grant raised seven propositions of error, which the court proceeded to analyze: 1. **Competent Evidence**: The court found sufficient evidence that Grant had violated the terms of her suspended sentences. The evidence established her involvement in planning the robbery and her presence during the crime. 2. **Right to Confront Witnesses**: The court concluded that the hearsay issues raised were not applicable, as revocation procedures allow for such evidence. Furthermore, all relevant witnesses were available for cross-examination. 3. **Jurisdiction Concerns**: Grant's arguments relating to the trial court's jurisdiction or abuse of discretion regarding specific offenses were deemed misdirected, as they pertain to her original plea which she could challenge separately. 4. **Excessive Sentencing**: Grant claimed her overall sentence was excessive, but this is tied to the context of her behavior and criminal activities, which justified the trial court's decisions. 5. **Ineffective Assistance of Counsel**: Similar to the above, claims surrounding the inadequacy of her representation in court were not appropriately addressed in this revocation context and would need separate proceedings. 6. **Nunc Pro Tunc Orders**: Grant sought to correct inaccuracies related to her plea and sentencing, which would also need to be handled through a different legal mechanism than this appeal. ### Conclusion The appellate court affirmed the decision of the District Court to revoke the suspended sentences, stating that the evidence supported the trial court's findings. The court dismissed all of Grant's claims based on their analysis of procedural and evidential standards, emphasizing the limitations of their review scope in revocation appeals. ### Decision Issued The order to revoke the concurrent suspended sentences was **AFFIRMED**. The court ordered the issuance of the mandate. ### Document Access A link to the full opinion is provided for those seeking detailed legal reasoning: [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-231_1734701780.pdf).

Continue ReadingRE-2018-231

RE 2018-0118

  • Post author:
  • Post category:RE

In OCCA case No. RE 2018-0118, Samuel Keith Carolina appealed his conviction for violating the terms of his suspended sentence. In an unpublished decision, the court decided to affirm the order revoking his suspended sentence. One judge dissented. Samuel Keith Carolina had originally been sentenced to twenty years for burglary, but the last ten years were suspended while he followed certain rules. However, in December 2017, the state accused him of committing several new crimes, including assault and battery with a deadly weapon and shooting with intent to kill. Some of these claims were removed before the revocation hearing. At the hearing held on January 30, 2018, the judge found enough evidence to support the state's claims, specifically the first allegation. Carolina argued that the evidence was not strong enough to prove he broke the terms of his sentence. The court explained that to revoke a suspended sentence, the evidence just needs to show that it's more likely true than not, meaning the evidence has to be convincing. Ultimately, because they found that there was enough evidence to support at least one of the violations, the court decided to uphold the revocation of Carolina's suspended sentence.

Continue ReadingRE 2018-0118

RE 2018-0118

  • Post author:
  • Post category:RE

In OCCA case No. RE 2018-0118, Samuel Keith Carolina appealed his conviction for the revocation of his suspended sentence. In an unpublished decision, the court decided to affirm the order of the District Court revoking his suspended sentence. One justice dissented. Samuel entered a guilty plea to burglary and was given a suspended sentence, which meant he would not serve his full sentence unless he broke the rules. However, after some time, the State accused him of committing new crimes, which led to the revocation hearing. The court found enough evidence to support the claims against him and revoked his suspended sentence. On appeal, Samuel argued that the evidence presented was not sufficient to prove he had committed the new crimes. However, the court explained that for revoking a suspended sentence, the state only needs to show that it is more likely than not (a preponderance of the evidence) that the person violated the terms. Since the court found that the state met this burden, they confirmed the decision to revoke Samuel's sentence.

Continue ReadingRE 2018-0118

F-2017-1011

  • Post author:
  • Post category:F

In OCCA case No. F-2017-1011, Johnny Ray Hopes appealed his conviction for Unlawful Possession of a Controlled Dangerous Substance With Intent to Distribute and two counts of Assault and Battery on a Police Officer. In an unpublished decision, the court decided to affirm the convictions. One judge dissented. Johnny Ray Hopes was found guilty by a jury for having illegal drugs and for attacking police officers. The jury decided he should go to prison for four years for the drug crime and for thirteen months in jail with a $500 fine for each of the two assaults. The judge ordered that all of these punishments would happen one after the other, not at the same time. Hopes had a few reasons for his appeal. First, he said that the trial court did not properly explain what it meant to represent himself in court. He believed that because he was not fully informed, his choice to represent himself was not made knowingly or voluntarily. The court looked at the facts and found that Hopes was well informed about what it meant to represent himself. They agreed that he made a clear decision and understood the risks involved in not having a lawyer. Therefore, the court decided that he had made a valid choice to represent himself. Second, Hopes claimed that the trial court made a mistake by not allowing the jury to hear about a lesser crime called Resisting Arrest. The court explained that for a jury to receive instructions about a lesser crime, there must be enough evidence for a reasonable jury to be able to find the person guilty of that lesser crime instead of the more serious crime they were charged with. The court found that there wasn’t enough evidence to support a charge of Resisting Arrest because Hopes had attacked the officers rather than just resisting their attempts to arrest him. So, they decided the trial court did not make a mistake by not including that lesser charge. Lastly, Hopes argued that the trial court shouldn’t have made his punishments run consecutively. The court explained that there is no rule saying he must receive concurrent sentences, meaning they cannot run at the same time. They confirmed that the judge had the right to decide that Hopes should serve his time one after the other. The court found that there was no evidence showing that the judge didn't consider all the facts when making that decision. In conclusion, the court upheld Hopes’ convictions and punishments. The appeal did not change the earlier decision. One judge disagreed, believing there were reasons to reconsider the case.

Continue ReadingF-2017-1011

RE-2017-113

  • Post author:
  • Post category:RE

In the case of Ruben Geraldo Velasquez v. The State of Oklahoma, the appellant appealed the revocation of his suspended sentences across multiple cases in the Caddo County District Court. The appeals were addressed by the Oklahoma Court of Criminal Appeals. The appellant had pleaded guilty to multiple charges, including possession of a firearm after conviction, driving under the influence, and domestic assault. His sentences were imposed with significant portions suspended, and he was placed on probation. However, the State filed a petition to revoke his suspended sentences citing several violations, including failure to pay fees, failure to report, changes in address, and new criminal offenses. The trial court revoked the appellant's suspended sentences in full after a hearing, and the appellant raised several propositions of error on appeal. The court determined that the first two propositions, which challenged the validity of the original sentences, were not properly resolved through this appeal and needed to follow certiorari procedures instead. The court found that the amendment to the revocation order, which removed post-imprisonment supervision, rendered one of the propositions moot. Regarding claims of ineffective assistance of counsel, the court concluded that the appellant had not demonstrated any deficiency in counsel's performance nor shown any resulting prejudice. The appellant's argument that the trial court abused its discretion by denying credit for time served was found to have no supporting legal authority, as the court indicated that there is no statutory requirement for such credit to be granted. Lastly, the court rejected the appellant's assertion that the revocation was excessive. The evidence presented to the trial court satisfied the standard necessary to revoke the suspended sentences, affirming that the burden of proof for violations is preponderance of the evidence, and that the decision to revoke is within the discretionary power of the trial court. Ultimately, the Oklahoma Court of Criminal Appeals affirmed the trial court’s decision to revoke the appellant's suspended sentences across all cited cases, concluding that there was no abuse of discretion in the revocation. The mandates for this decision were ordered to be issued following the filing of the opinion. The decision is summarized as follows: **The revocation of Ruben Geraldo Velasquez's suspended sentences is AFFIRMED.**

Continue ReadingRE-2017-113

F-2018-83

  • Post author:
  • Post category:F

In OCCA case No. F-2018-83, the appellant appealed his conviction for terminating his participation in a drug court program. In an unpublished decision, the court decided to affirm the termination of the appellant's participation in the Kay County Drug Court Program. One judge dissented. The case began with the appellant being charged with domestic abuse, followed by several other charges which led to his participation in the drug court program. He had previous sentences but entered a plea agreement that allowed him to avoid immediate incarceration if he completed the program successfully. However, after multiple instances of non-compliance, the state requested to terminate him from the program. During a hearing, the judge evaluated whether the appellant had violated the terms of his performance contract in the drug court. The judge determined that he had. The appellant argued that the judge should have given him more chances to comply with the rules of the program, but the judge concluded that the appellant's actions warranted termination. The court ultimately agreed with the judge's decision, stating that he had not abused his discretion in terminating the appellant’s participation in the drug court program. The termination was deemed appropriate given the appellant's repeated violations.

Continue ReadingF-2018-83

RE-2018-128

  • Post author:
  • Post category:RE

In the Court of Criminal Appeals of the State of Oklahoma, Milton Roger Hornsby appealed the revocation of his suspended sentence from the McIntosh County District Court, overseen by Judge James D. Bland. This appeal arose from convictions in two cases, CF-2012-45 and CF-2012-60, covering multiple charges including possession of a firearm after conviction and assault with a dangerous weapon. Hornsby initially received a twenty-year suspended sentence for one charge and six-month suspended sentences for others, all to be served concurrently. The State's motion to revoke the suspended sentences, filed on September 19, 2016, was due to an alleged new crime involving assault and battery with a dangerous weapon. Following a hearing on December 29, 2016, Judge Bland revoked ten years of Hornsby's suspended sentences. Hornsby raised several legal arguments on appeal: 1. **Burden of Proof**: He argued that Judge Bland imposed a lower burden of proof than required. However, the court affirmed that Judge Bland properly articulated the standard during the hearing, which was that the State needed to show it was more likely than not that Hornsby violated his probation. 2. **Suppressed Evidence**: Hornsby contended that evidence pertaining to the use of a knife, previously suppressed in a related case, was improperly considered at the revocation hearing. The court noted that Hornsby did not object during the hearing and thus waived his right to raise this issue on appeal apart from claiming plain error, which he failed to establish. 3. **Intent to Harm**: Hornsby claimed there was insufficient evidence to prove he intended to inflict bodily harm. The court stated that the evidence presented was sufficient to suggest that it was more likely than not that Hornsby had such intent. 4. **Cumulative Errors**: Lastly, Hornsby argued that the accumulation of errors deprived him of a fair hearing. The court found no merit in this argument, as each proposition raised was without merit. The Court concluded that there was no abuse of discretion in Judge Bland's decision to revoke the suspended sentence, affirming the revocation. The mandate was ordered to issue following the filing of the decision.

Continue ReadingRE-2018-128

F-2017-1042

  • Post author:
  • Post category:F

In OCCA case No. F-2017-1042, Vincent Ray Perosi appealed his conviction for First Degree Murder and Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. The case began when Perosi, who had recently divorced, was ordered to leave the house he had been living in by January 1, 2016. After that date, his ex-wife, Pamela Perosi, returned to the house with two friends to change the locks because he had not moved out. This led to a confrontation. Perosi shot and killed Pamela and another friend, Buddy Weber, while wounding Karen Priest, who was also present. Perosi claimed he shot in self-defense, saying he was scared of Weber. However, evidence showed that he had a history of threats against his ex-wife and evidence contradicted his version of events. The court ruled that he did not qualify for immunity under the Stand Your Ground law and denied his request for related jury instructions. In reviewing the evidence, the court found sufficient proof to support the convictions, rejecting Perosi's claims of self-defense and that shooting Pamela was accidental. Further, his videotaped confession was admitted as evidence, despite defense claims it was coerced; the court found it was voluntary. In addition, the court allowed testimony about Perosi's bad character and a victim impact statement from Pamela’s family. Ultimately, the court upheld the trial’s decisions and affirmed the conviction, denying any errors raised in the appeal.

Continue ReadingF-2017-1042

F-2017-849

  • Post author:
  • Post category:F

In OCCA case No. F-2017-849, Samuel Cosby appealed his conviction for assault and battery with a deadly weapon. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Samuel Cosby was found guilty by a jury in Oklahoma County and sentenced to life imprisonment. He raised several arguments to claim that errors during the trial affected his right to a fair trial. First, Mr. Cosby argued that the trial court made a mistake by not having a pretrial hearing to check if the expert testimony about firearms was reliable. The court found no error in allowing the expert testimony because it is generally accepted in trials. Second, he claimed the firearms expert's analysis was flawed and unfair. However, the court decided that there was no plain error since the expert's opinion was based on accepted methods. Third, he argued that a phone call he made from jail should not have been used as evidence. While he objected in court, the judges felt the phone call was relevant because it showed he was aware of the situation. Fourth, Mr. Cosby said there were mistakes in how evidence was handled, particularly about the victim's injuries. The court ruled that the evidence was necessary for proving the case. Fifth, he felt the jury instructions were wrong because his request for an explanation about inconsistent statements was denied. The court explained that the victim's testimony was not inconsistent enough to require such an instruction. Lastly, Mr. Cosby claimed he did not receive effective help from his lawyer. The court found that since these errors did not actually happen, this claim was also not valid. The overall decision was that the judgment and sentence against Mr. Cosby were correct, and his appeals did not show any significant errors that affected the fairness of his trial.

Continue ReadingF-2017-849

M-2017-954

  • Post author:
  • Post category:M

In OCCA case No. M-2017-954, Christian Wages appealed his conviction for Domestic Abuse - Assault and Battery. In an unpublished decision, the court decided to modify his conviction to simple Assault and Battery and remanded the case for resentencing. One judge dissented. Christian Wages was found guilty of Domestic Abuse in a trial without a jury. The judge sentenced him to one year in jail, with all but the first thirty days suspended, and a fine of $500. He was also required to attend counseling and was placed on probation. Wages appealed the decision, claiming three main errors in the trial. First, he believed the court wrongly allowed hearsay evidence that violated his right to confront witnesses. This hearsay was about R.S., the alleged victim, who did not testify at the trial. Second, he argued that the evidence wasn't enough to prove he battered R.S. because the witnesses did not clearly identify her. Lastly, he claimed that the errors in the trial added up to deny him a fair trial. The court reviewed the evidence and mentioned that while there was enough proof for a simple Assault and Battery charge, the evidence for the Domestic Abuse charge was based on inadmissible hearsay that stated R.S. lived with Wages. Since there wasn’t sufficient admissible evidence to prove the domestic relationship, Wages' conviction was modified to simple Assault and Battery. As for the last argument regarding cumulative errors, the court pointed out that it only found one significant error, meaning cumulative error could not be applied. In conclusion, the punishment was lessened from Domestic Abuse to simple Assault and Battery, and the court instructed to resentence Wages according to this new finding.

Continue ReadingM-2017-954

RE-2017-264

  • Post author:
  • Post category:RE

In OCCA case No. RE-2017-264, Damion Deshawn Polk appealed his conviction for Domestic Abuse (Assault and Battery) After Former Conviction of Two or More Felonies. In an unpublished decision, the court decided to reverse the revocation of the balance of his suspended sentence. One judge dissented. The case started when Polk was given a ten-year sentence that was suspended, meaning he wouldn't have to go to prison right away. He had to follow certain rules, including paying fees, doing community service, and staying out of trouble. However, he did not follow these rules, and the State asked for his sentence to be revoked. At a hearing, Polk admitted to using drugs, which was one of the reasons his probation was being revoked. The judge gave him a punishment by sending him to jail for ninety days. After he served this time, he was supposed to report to a program but missed his next court date. Later, when the judge reviewed the case again, he revoked Polk's suspended sentence entirely. However, during the appeal, the court found that Polk had already been punished for his drug use and that the judge should not have fully revoked his sentence for that same violation. The appellate court decided that there should have been new violations presented for the full revocation. As a result, the court reversed the judge's decision to revoke Polk's suspended sentence completely. They noted that a suspended sentence can't be revoked for a reason that has already been punished. The appellate court ruled that since Polk had already faced penalties for his prior drug use, the judge should have considered that before taking away the rest of his suspended sentence.

Continue ReadingRE-2017-264

F-2017-724

  • Post author:
  • Post category:F

In OCCA case No. F-2017-724, the appellant appealed his conviction for multiple crimes, including assault and battery with a dangerous weapon, burglary, domestic abuse, and violation of a protective order. In a published decision, the court decided to affirm the convictions for most counts but dismissed one count due to double punishment concerns. One judge dissented.

Continue ReadingF-2017-724

F-2017-241

  • Post author:
  • Post category:F

In OCCA case No. F-2017-241, Joseph Tunley, Jr. appealed his conviction for Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to reverse the conviction and send the case back for a new trial. The court found that Tunley's original waiver of his right to a jury trial was not shown to be knowing, intelligent, or competent, which is required by law. The dissenting opinion was not specified, but it indicates that there may have been differing views on the matter.

Continue ReadingF-2017-241

C-2016-1000

  • Post author:
  • Post category:C

In OCCA case No. C-2016-1000, Bryan Keith Fletcher appealed his conviction for multiple charges including kidnapping, assault with a deadly weapon, rape, and child abuse. In an unpublished decision, the court decided to grant part of his appeal regarding one misdemeanor charge while denying all other claims. The court modified the sentence for the misdemeanor related to threatening violence to six months in jail but affirmed the sentences for all other counts, which resulted in a significant time in prison. The petitioner argued several points, including that he did not receive effective legal help, that he was not competent when he entered his plea, and that his plea was not voluntary. However, the court reviewed these claims and found that they did not hold up under scrutiny. The judges opined that the actions taken during the plea process were appropriate and upheld the ruling on the grounds that there was no evidence of ineffective assistance or invalid plea. One judge disagreed with some aspects of the decision.

Continue ReadingC-2016-1000

F-2015-909

  • Post author:
  • Post category:F

In OCCA case No. F-2015-909, Ricky Nolan Ennis appealed his conviction for multiple offenses. In a published decision, the court decided to affirm the convictions but vacated the restitution order and remanded the case for a proper determination of the victim's loss. Ricky Nolan Ennis pled guilty to burglary and domestic assault and battery, with sentencing delayed so he could complete a rehabilitation program. After he completed the program, the court agreed to delay his sentencing for five years. However, later on, the State alleged he violated his probation by committing new crimes. He was tried by jury for these new charges and found not guilty of kidnapping but guilty of assault and battery with a dangerous weapon, assault and battery in the presence of a minor, and threatening violence. The jury recommended various sentences, which the judge followed along with increasing his sentences from the earlier cases due to probation violations. Ennis raised several arguments in his appeal, questioning whether he was properly advised about his right to appeal, claiming he did not plead to the new charges, and arguing that the trial judge considered irrelevant information and that the evidence against him was unfairly prejudicial. Ennis also claimed his attorney did not represent him effectively, that the prosecutor misbehaved, and that the sentences he received were excessive. After a thorough review, the court found Ennis's complaints about not being advised on the right to appeal and other issues did not warrant relief. They noted that he did not raise many of these issues in a timely manner and that most of his claims did not show he was denied a fair trial. However, the court did find an error in how restitution was determined, as there was not enough evidence to justify the amount ordered. Ultimately, the court’s decision affirmed Ennis’s convictions but also required the case to return to the lower court to correctly handle the victim's restitution claim.

Continue ReadingF-2015-909

M-2016-108

  • Post author:
  • Post category:M

In OCCA case No. M-2016-108, Marty Spence Duncan appealed his conviction for Domestic Abuse - Assault and Battery and Assault. In a published decision, the court decided to reverse Duncan's judgment and sentence and remand for a new trial because the record did not show that he had waived his right to a jury trial. One judge dissented.

Continue ReadingM-2016-108

F-2015-963

  • Post author:
  • Post category:F

In OCCA case No. F-2015-963, Daniel Bryan Kelley appealed his conviction for Rape by Instrumentation and Assault and Battery. In an unpublished decision, the court decided to affirm the conviction for Assault and Battery but reversed the conviction for Rape by Instrumentation and remanded for resentencing. One judge dissented. Kelley was found guilty by a jury of committing rape and an assault. The crimes occurred in Tulsa County. The jury recommended a sentence of 20 years for the rape and a 90-day sentence for the assault, which would happen at the same time as the longer sentence. Kelley appealed for several reasons. Firstly, Kelley argued that he should have been allowed to present evidence that the victim had previously said the crime happened somewhere else. The court found this request did not violate his rights. The court also ruled that other evidence, including statements from witnesses, was presented correctly according to the law. Kelley further claimed that the detective’s testimony included hearsay and should not have been allowed. The court disagreed, stating that the testimony did not qualify as hearsay because it was not offered to prove the truth of the matter. He also objected to the admission of a Kansas judgment that concerns his past criminal record. The court found that the state failed to prove that this past conviction should be used to increase his sentence as a felony under Oklahoma law, which was a significant factor in the decision to remand for resentencing. Kelley argued that the prosecutor made mistakes during his closing arguments, but the court didn’t find enough errors to affect his right to a fair trial. On the matter of whether Kelley received effective help from his lawyer, the court determined that no deficiencies were present that impacted his case. The final summary was that while Kelley’s conviction for Assault and Battery remained intact, the conviction for Rape by Instrumentation was reversed due to a lack of sufficient evidence regarding his previous crime, leading to a mandate for resentencing.

Continue ReadingF-2015-963

F-2015-1007

  • Post author:
  • Post category:F

In OCCA case No. F-2015-1007, Johnny Lee Ingram appealed his conviction for Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to reverse the conviction and remand for a new trial. One judge dissented. The case began when Ingram was tried for two crimes: one for Assault and Battery with a Deadly Weapon and the other for Possession of a Firearm after prior convictions. The jury found him guilty of the first charge and not guilty of the second. He was sentenced to twenty-five years in prison based on the jury's recommendation. Ingram raised several points during his appeal. He claimed that the trial court made mistakes, such as not properly answering the jury's questions about the law, which led to confusion. The court agreed that the trial court's responses to the jury were not clear and this could have impacted the jury's decision. During the jury's deliberation, they asked about the meaning of certain instructions related to the case. The trial judge referred them to another instruction without clearly addressing their concerns. This left the jury confused about what constituted criminal intent and whether Ingram could be guilty based on his presence at the scene but not guilty of the other charge. The court emphasized that when jurors express confusion, it is crucial for judges to clearly resolve that confusion. Since the jury found Ingram guilty despite being confused, and considering that the instructions did not help clarify the legal standards, the appellate court concluded that Ingram was not given a fair trial. Thus, they overturned the conviction and ordered a new trial to ensure that the jury could properly consider the evidence laid out, without the confusion created by the previous instructions.

Continue ReadingF-2015-1007

C-2016-718

  • Post author:
  • Post category:C

In OCCA case No. C-2016-718, Jones appealed his conviction for robbery with a dangerous weapon and kidnapping. In a published decision, the court decided to vacate the sentence for one count where he was not charged, but affirmed the rest of the convictions. One judge dissented.

Continue ReadingC-2016-718

F-2016-82

  • Post author:
  • Post category:F

In OCCA case No. F-2016-82, Angel Marie Proctor appealed her conviction for First Degree Murder, Kidnapping, and Assault and Battery with a Deadly Weapon. In a published decision, the court decided to reverse and remand the kidnapping conviction with instructions to dismiss, while affirming the other convictions. One judge dissented.

Continue ReadingF-2016-82