Cell Phone Archives - OCCA Opinions

RE-2018-769

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

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant, Robert Kenneth Kramer, appeals from the revocation of his suspended sentence in Okfuskee County District Court Case No. CF-2015-100. On September 9, 2015, Appellant entered a negotiated plea of nolo contendere to Financial Exploitation by a Caregiver (21 O.S.2011, § 843.1) After Former Conviction of a Felony (21 O.S.Supp.2011, § 51.1). He was sentenced to a term of imprisonment for ten years, with the final six years suspended. On May 31, 2017, the trial court modified the suspended portion of the sentence from six to eight years. On March 28, 2018, the State filed an application to revoke the suspended sentence, alleging that Appellant had committed new crimes: possessing a cell phone while incarcerated and knowingly concealing stolen property. A hearing on the application was held on July 11, 2018, before the Honorable Lawrence W. Parish, District Judge. Judge Parish granted the State's application and revoked the eight-year suspended sentence in full. **ANALYSIS** The standard for revocation of a suspended sentence requires a determination of whether the terms of the suspension order have been violated, which must be proven by a preponderance of the evidence. A trial court's decision to revoke should not be reversed unless there is an abuse of discretion. 1. **Proposition I: Violation of the 20-day Rule** Appellant claims the district court violated the 20-day Rule as stated in 22 O.S.Supp.2012, § 991b(A). Since Appellant did not raise this objection at the hearing, the review is for plain error. Appellant failed to demonstrate that any deviation affected his substantial rights, and he had previously waived his right to a hearing within the statutory time-frame. Therefore, this proposition is denied. 2. **Proposition II: Sufficiency of Evidence** Appellant argues that the evidence was insufficient to support the conclusion that he possessed a cell phone while in jail. Testimony from Appellant's ex-wife indicated that she received text messages from a phone she associated with him. Additionally, a jailer testified about witnessing inmates, including Appellant, trying to destroy a cell phone. This evidence satisfies the preponderance standard. **DECISION** The order revoking Appellant's suspended sentence in Case No. CF-2015-100 is AFFIRMED. **APPEARANCES:** - Counsel for Appellant: Curt Allen, Jeremy Stillwell, Indigent Defense System - Counsel for State: Emily Mueller, Assistant District Attorney; Mike Hunter, Attorney General of Oklahoma; Theodore Peeper, Assistant Attorney General **OPINION BY: ROWLAND, J.:** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur in Results HUDSON, J.: Concur **[End of Summary Opinion]** For further details, you may view the full court opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-769_1734420410.pdf).

M-2010-341

Post author:Staff
Post published:November 15, 2011
Post category:M

In OCCA case No. M-2010-341, Katherine Denise Burns appealed her conviction for Harassment by Use of an Electronic Device. In an unpublished decision, the court decided to reverse her conviction and instructed to dismiss the case. One judge dissented. Burns was found guilty in a trial in the District Court of Seminole County, where she was accused of sending harassing text messages to Jennifer Johnson. The court sentenced her to six months in jail, but the sentence was suspended. Burns argued that the way the charges were written (the Information) was not clear enough and that the evidence against her was not strong enough to convict her. During the trial, the State presented evidence that Burns sent three text messages to Johnson. The first message included Johnson's social security number, the second suggested Burns knew personal information about Johnson, and the third revealed Johnson's home address. The State claimed that Burns violated a law that prohibits making electronic communications without disclosing one’s identity in a way that annoys, abuses, threatens, or harasses another person. However, the court found that the messages did not meet the legal requirement because Burns’s cell phone number was visible to Johnson. The court concluded that since Burns's identity was clear, she could not be convicted under the law cited by the State. Ultimately, the court decided that there wasn’t enough evidence to prove that Burns committed the specific crime she was charged with, leading them to reverse her conviction and dismiss the case.