In OCCA case No. F-2019-37, Suggs appealed his conviction for first-degree burglary. In a published decision, the court decided to reverse and remand for a new trial on that count due to an instructional error, while affirming the convictions on the other counts. One judge dissented.
**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **UBALDO HERNANDEZ,** **Appellant,** **vs.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-823** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 30 2020** **JOHN D. HADDEN** **CLERK** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Ubaldo Hernandez, was convicted by a jury in the Muskogee County District Court, Case No. CF-2016-608, of Child Sexual Abuse. On August 8, 2018, the Honorable Thomas H. Alford, District Judge, sentenced him to thirty years imprisonment, in accordance with the jury's recommendation. He must serve 85% of this sentence before parole consideration. (21 O.S.Supp.2015, § 13.1(14)). **Propositions of Error:** Appellant raises four propositions of error in support of his appeal: **PROPOSITION I:** Admission of other bad acts evidence prejudiced the jury and denied Mr. Hernandez a fair trial. **PROPOSITION II:** Mr. Hernandez was denied a fair trial due to prosecutorial misconduct. **PROPOSITION III:** Mr. Hernandez received ineffective assistance of counsel. **PROPOSITION IV:** The accumulation of errors deprived Mr. Hernandez of a fair proceeding. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. **Case Overview:** Appellant was convicted of sexually abusing his daughter over several years. In Proposition I, he contends the trial court erred in admitting various references to other bad acts. Since there was no objection to most evidence presented, we review for plain error. The allegations arose years after the abuse began. The defense strategy involved questioning the victim's credibility due to her delay in reporting. The victim testified about Appellant's controlling nature, drinking, and family dynamics to explain this delay. The evidence cited by Appellant primarily relates to corroborative testimony from family members regarding Appellant's behavior, which aligns closely with the victim’s testimony. The trial court instructed the jury on the limited use of bad-acts evidence. Thus, admitting the accounts of Appellant's behavior did not constitute plain error. **Proposition II:** Appellant cites instances of prosecutorial misconduct. However, there were no objections to these comments, resulting in plain error review. His claims about comments diminishing the presumption of innocence are inadequately specified. The prosecutor’s efforts to rehabilitate a witness's credibility were not improper given the context of the defense's portrayal of her. In summary, there was no reasonable probability that the prosecutor's comments affected the trial's outcome. **Proposition III:** Appellant claims ineffective assistance of counsel on multiple grounds. To prevail, one must demonstrate both deficient performance and resulting prejudice. The claims related to ensuring a complete record and failing to object to alleged misconduct fail due to a lack of demonstrated prejudice impacting the trial's outcome. **Proposition IV:** Having reviewed the evidence, we find no accumulation of error which would warrant relief. **DECISION:** The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED. **ORDERS:** Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. **ATTORNEYS:** - **ANDREW HAYES,** Counsel for Defendant - **WYNDI THOMAS HOBBS,** Deputy Division Chief - **NALANI CHING,** Counsel for Appellee - **MIKE HUNTER,** Attorney General of Oklahoma **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR IN RESULTS **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-823_1735212863.pdf)
In OCCA case No. F-2017-963, Randall Duane Throneberry appealed his conviction for Lewd Acts with a Child Under 16. In an unpublished decision, the court decided to affirm the conviction and the sentence of life imprisonment without the possibility of parole. One judge dissented. Randall Duane Throneberry was tried and found guilty in an Oklahoma court for lewd acts with an child under the age of 16. The jury recommended that he be sentenced to life in prison without any chance for parole because he had a prior conviction for a similar crime. The case began when a young girl named R.F. reported that Throneberry had molested her while she was sleeping on a couch. The events happened in August 2015 when R.F. and her mother were staying at a family friend's house, where Throneberry was also visiting. One night, while R.F. was sleeping, Throneberry was found standing too close to her and had his hand under her blanket. The next morning, R.F. woke up to find Throneberry touching her inappropriately. During the trial, Thorneberry argued that some testimonies regarding R.F.'s behavior after the incident should not have been allowed, claiming that it unfairly impacted the jury. However, the court ruled that this evidence was relevant to show the credibility of R.F.'s testimony. Throneberry also challenged the admission of testimony from another victim, D.W., who had been molested by him when she was seven years old. The court allowed this testimony as it demonstrated Throneberry's pattern of behavior. Despite Throneberry's claims, the court found that the testimony was relevant and important for the case. Throneberry's argument that his life sentence without parole was unconstitutional was also denied. The court stated that the sentence was not excessively harsh compared to the serious nature of the crime and Throneberry's history of similar offenses. The judge noted that sentencing is ultimately a matter for the legislature, and in these kinds of cases, severe punishments are justified. In summary, the court upheld Throneberry's conviction and life sentence, finding no errors in the trial or the evidence presented. The judgment was affirmed, with one judge expressing a different opinion.
**Summary of the Case:** In the Court of Criminal Appeals of the State of Oklahoma, Adam Russell Hemphill, Sr. was convicted by a jury of Child Neglect. He was sentenced to twenty-five years' imprisonment. Hemphill raised two issues on appeal: (1) allegations of prosecutorial misconduct during closing arguments and (2) the trial court's admission of evidence regarding his prior drug use. **Issues Presented:** 1. **Prosecutorial Misconduct:** - Hemphill argued that prosecutorial misconduct during closing argument prejudiced his right to a fair trial, primarily due to the prosecutor's references to his past marijuana use and comments regarding uncharged crimes. - The Court found that although some remarks made by the prosecutor were questionable, they did not rise to the level of affecting Hemphill's substantial rights or rendering the trial fundamentally unfair. The absence of objection to most comments and the strength of the evidence against Hemphill contributed to this conclusion. 2. **Admission of Evidence:** - Hemphill contested the introduction of evidence regarding his past marijuana use, asserting it was irrelevant and inadmissible as evidence of bad acts. - Although the Court agreed that the evidence was not relevant to the case and constituted an error in its admission, it ultimately concluded that the error was harmless in light of the overwhelming evidence of Hemphill's guilt. **Decision:** The appellate court affirmed the district court's judgment and sentence, determining that Hemphill was not entitled to relief on either of his claims. **Concurrences:** Judge Hudson concurred in the results but disagreed with the majority regarding the prosecutor's cross-examination about marijuana use. He believed the admission of this testimony did not constitute an abuse of discretion and was relevant to Hemphill's claims about his financial situation. --- For full details and legal citations, refer to the complete decision linked above.
In OCCA case No. F-2017-1261, Carlos Santana Gunter appealed his conviction for robbery with a dangerous weapon, assault, and battery with a dangerous weapon. In an unpublished decision, the court decided to affirm his convictions and sentences. One judge dissented. Carlos Santana Gunter was found guilty by a jury in Canadian County for robbery and two counts of assault and battery. He received a sentence of thirty years for each count. The judge ruled that Gunter must serve at least 85% of the robbery sentence before being eligible for parole, and the assault sentences were ordered to run concurrently with each other but consecutively to the robbery sentence. Gunter raised several arguments on appeal. First, he claimed that asking the victims about the effects of their injuries during the trial was improper and prejudiced his case. The court found that this testimony was relevant to establish elements of the crimes and did not affect the outcome significantly. Second, Gunter argued that his right to remain silent was violated when a police officer mentioned that he asked for an attorney during questioning. The court agreed this was an error but concluded that the evidence against Gunter was so strong that it did not impact the fairness of the trial. Third, Gunter challenged the use of his previous felony convictions to enhance his sentence, saying he didn’t have a lawyer during those earlier convictions. The court noted that Gunter had acknowledged those convictions during the trial and failed to show any actual error regarding legal representation. Fourth, he alleged prosecutorial misconduct, claiming the prosecutor made unfair comments that influenced the jury. The court found these comments did not render the trial unfair. Fifth, Gunter argued he did not receive effective legal counsel during the trial. However, the court decided that because his other claims did not merit relief, he could not prove ineffective assistance of counsel. Lastly, Gunter asserted that the combined errors in his case deprived him of a fair trial. The court ruled that even when considering all claimed errors together, they did not affect the outcome. In the end, the court affirmed Gunter's conviction and sentence, concluding that the evidence against him was compelling, and the trial was fair despite the issues raised.
In OCCA case No. F-2018-12, the appellant appealed his conviction for first-degree rape by instrumentation and misdemeanor assault and battery. In a published decision, the court decided to affirm his conviction and sentence of life imprisonment for the rape conviction. One judge dissented. The case involved Daniel Bryan Kelley, who was initially sentenced to twenty years for rape following a jury trial. He appealed that decision, and the Court agreed that there had been a mistake involving the use of a past out-of-state conviction for sentence enhancement. They sent the case back for a new sentencing trial. The second trial resulted in a life sentence. Kelley argued that he had ineffective assistance from his appellate lawyer because he was not informed about the risks of a longer sentence should he win the appeal. However, the court found no clear evidence that he would have chosen to do anything differently had he been fully informed beforehand. Kelley also wanted the court to limit his new sentence to twenty years, but the court explained that upon retrial or resentencing, the complete range of punishment is available. Therefore, they refused his request to cap the current sentence. Finally, Kelley claimed that the life sentence was excessive. The court considered the nature of his crime and his history, stating that the sentence was within the legal limit and justified based on the circumstances of the case. As a result, the court concluded that his life sentence did not shock the conscience and upheld the previous decisions regarding his case.
In OCCA case No. F-2018-512, Robert Neal Owens appealed his conviction for Sexual Battery and Child Abuse by Injury. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court. One judge dissented. Owens was found guilty by a judge in a non-jury trial for touching a victim inappropriately and causing harm to a child by putting the child in a chokehold. Owens argued that the evidence against him was not strong enough for a conviction. However, the court believed that enough evidence was presented to support both convictions. The court looked closely at the facts and found that a reasonable person could determine Owens was guilty beyond a reasonable doubt. The judge concluded that the punishment Owens received, which added up to fifty-five years in prison, was not excessive given his history of prior convictions and the nature of his crimes. Therefore, the court upheld the original sentences. Ultimately, Owens' appeal did not change the outcome of his case, and he remained sentenced to prison.
In OCCA case No. F-2012-08, Ralph T. Smith, Jr. appealed his conviction for kidnapping, first-degree robbery, attempted rape, forcible sodomy, first-degree rape, and unlawful possession of a controlled drug. In an unpublished decision, the court decided to modify his sentence on Count I to ten years imprisonment and to remove post-imprisonment supervision from Counts III, IV, and V. One judge dissented. **Summary of the Case:** Ralph T. Smith, Jr. was found guilty of serious crimes against a 76-year-old woman, R.C., after they met at a casino. Smith initiated a friendly interaction with R.C., who ended up offering him a ride. However, he then assaulted her and committed various violent acts, including attempted rape, forcible sodomy, and robbery. The jury sentenced Smith to long prison terms for each conviction. **Key Facts:** - During a day at the casino, Smith befriended R.C. and, after some time, manipulated her into giving him a ride. - Smith then forcibly assaulted R.C. at her house and later at a motel. - After the incident, R.C. reported the crime to her family and the police. **Legal Issues:** 1. **Speedy Trial**: Smith argued that his right to a speedy trial was violated according to the Interstate Agreement on Detainers Act. The court reviewed the timeline of events and denied his claim, stating that the time delays were justified. 2. **Sentencing Instructions**: Smith contested that the jury was improperly instructed about the potential punishment. The court agreed there was an error and modified the sentences accordingly. 3. **Ineffective Assistance of Counsel**: He claimed that he did not get adequate legal representation, particularly related to the sentencing instructions. The court noted that this claim was valid but remedied through the sentence modifications. 4. **Prosecutorial Misconduct**: Smith argued that the prosecutor's comments during closing arguments were inappropriate. The court found the comments were not severe enough to undermine the fairness of the trial. 5. **Jurisdiction**: Smith questioned whether the court had jurisdiction over some charges since the crimes occurred in different counties. The court ruled that jurisdiction was proper because the kidnapping and subsequent crimes were closely connected. 6. **Pro Se Brief**: Smith attempted to submit additional complaints without sufficient support from his attorney. The court denied this attempt due to failure to follow proper procedures. In conclusion, while Smith's sentence modification was granted throughout the appeals process, the court maintained that he was rightly convicted and that the initial trial was fair despite some errors.
In OCCA case No. F 2011-1045, Joshua Paul Nosak appealed his conviction for first-degree manslaughter, leaving the scene of a fatal accident, driving without a driver's license, and assault with a dangerous weapon. In an unpublished decision, the court decided to affirm his convictions but ordered that the case be sent back to fix a mistake in the sentencing. One judge disagreed with the decision. Nosak was found guilty of serious crimes after a jury trial. The jury decided he was guilty of first-degree manslaughter for driving while impaired and also found him guilty of leaving the scene of an accident after someone died. He was sentenced to a total of 50 years in prison for the manslaughter charge and received additional time and fines for the other offenses. Nosak's appeal raised several arguments. First, he believed that the court should not have allowed a specific charge against him because the underlying misdemeanor wasn't strong enough to support the manslaughter charge. However, the court found that this didn't really hurt his case because the jury found him guilty on other grounds. Second, Nosak argued that the court allowed bad evidence to be presented, which shouldn't have been allowed. The court found that he didn't object to this during the trial, so they couldn’t rule on it unless it was obviously wrong and affected his rights, which they determined it did not. Third, he claimed that he didn’t get good help from his lawyer. However, the court said that because the evidence against him was very strong, he could not show that he was harmed by any mistakes made by his attorney. The fourth point was about correcting mistakes in the court's decision regarding his punishment. The court accepted that there were errors in the sentencing order and decided to send the case back to fix them. Finally, Nosak argued that the many errors combined made it impossible for him to have a fair trial. But the court found that there were no individual mistakes that were serious enough to change the trial's outcome. In conclusion, the decision meant that while Nosak's convictions were upheld, the court would correct the sentencing mistakes before finalizing the case. One judge disagreed with this conclusion, but the others agreed with the majority opinion.
In OCCA case No. C-2012-714, the petitioner appealed his conviction for larceny of merchandise from a retailer and resisting an officer. In a published decision, the court decided to affirm the conviction for larceny but to reverse and remand the conviction for resisting an officer. One member of the court dissented. The case began when Darrell Odell Golden was charged with stealing merchandise from a department store and for resisting arrest after being approached by law enforcement. Golden stole items valued over $1,000, and when police tried to arrest him, he ran away. Golden pled guilty to both charges but later wanted to withdraw his plea, arguing that he was confused about his possible sentence and that he did not understand the charges properly. The court found that while Golden’s plea for larceny was valid, his plea for resisting an officer lacked evidence of the required force or violence, which is necessary to support that charge. Therefore, the court allowed him to withdraw his guilty plea for that particular count but upheld his conviction for larceny. Ultimately, the decision meant that Golden will keep his larceny conviction and its associated penalties, but the charge of resisting an officer was overturned, allowing for further legal proceedings on that matter.
In OCCA case No. F-2005-1146, Pamela Dee Colley appealed her conviction for trafficking in illegal drugs (methamphetamine) and several other drug-related charges. In an unpublished decision, the court decided to affirm her convictions for counts 1, 2, 4, 5, 6, 7, and 8, but reversed her conviction for count 3, possession of marijuana. One judge dissented regarding the reversal of count 3. Pamela Colley was found guilty by a jury for a serious crime related to illegal drugs after a traffic stop conducted by a police officer. The case began when the officer noticed her car making a traffic violation early in the morning. When he pulled her over, he found out that Colley did not have a driver's license and provided some confusing information. The police officer thought that drug dealers were operating in the area, so he called for a K9 unit to further check for drugs. When the dog alerted, the police searched her car and found illegal drugs, scales, and items used for drug use in her purse. Colley was very upset and later gave permission for police to search her, leading to more illegal items being discovered on her. Colley argued in court that her sentence of life without parole was unfair and that she didn’t know about the drugs. She claimed that her attorney didn’t defend her well and that the way the trial was handled had problems. However, the court found that there was enough evidence to support her conviction. They also decided the police did everything by the book during the traffic stop. While the court agreed that one of her charges resulted in a double punishment, it found that her other convictions were valid given the serious nature of the drug trafficking involved. Thus, she will remain convicted on those charges, which involved large amounts of methamphetamine, while they reversed the possession of marijuana charge due to it being a part of the same incident.
In OCCA case No. F-2005-363, Adan Ramos, Jr. appealed his conviction for Robbery by Force or Fear. In an unpublished decision, the court decided to reverse the conviction and remand the case for a new trial. The court found that there was no valid waiver of Ramos's right to a jury trial, which is a fundamental right. Ramos's other claims about ineffective assistance of counsel, exclusion of evidence, and interpreter issues became moot since the court ordered a new trial.
In OCCA case No. F-2003-1261, Ronnie Odell Gargus appealed his conviction for Rape by Instrumentation, five counts of Sodomy, and Lewd Acts with a Child. In an unpublished decision, the court decided to affirm Gargus' convictions and sentences. One judge dissented. The case involved a jury trial where Gargus was found guilty of serious sexual offenses against a child. The jury decided on lengthy prison sentences for each count, totaling a significant amount of time in prison. Gargus raised two main points in his appeal. First, he argued that he should have been allowed to ask the State's expert witness about any bias in his testimony against Gargus. The court acknowledged that usually, a witness cannot be questioned about their past arrests if there was no conviction. However, the court agreed that there are times when it is important to explore a witness’s potential bias, especially if the witness has pending criminal issues. Despite this, the court found that excluding the questioning about the expert's bias did not change the outcome of the case since there was also strong evidence against Gargus, including the child’s own credible testimony. Second, Gargus claimed he was not properly informed before the court ordered him to pay restitution to the victim. The court noted that Gargus did not raise this issue during the trial. However, they agreed that the amount of restitution was not clearly supported by evidence, and that needed to be corrected. The court ordered a new hearing to determine the correct amount that Gargus should pay. Overall, the court upheld the convictions and long sentences but recognized that some legal issues concerning restitution needed further attention. They will have a new hearing to ensure the restitution amount is fair and based on proper evidence.
In OCCA case No. F-2003-583, Ronald Lee King appealed his conviction for Unlawful Delivery of Cocaine Base, After Former Conviction of Two or More Felonies. In an unpublished decision, the court decided to affirm the judgment but modify the sentence. One judge dissented. Ronald King was found guilty of delivering a type of illegal drug. The jury decided that he should go to prison for twenty-five years and pay a fine of $30,000. King thought the trial was unfair for several reasons. First, he argued that the evidence, which was the illegal drug, should not have been used in court. He believed there was not enough proof to show that the drug was really connected to him. However, the court thought that the State had enough proof to say that the evidence was properly linked to King. Second, King said he should have been able to see notes from a police officer who helped in his case. The court found that there was no mistake here because King had everything he needed from the prosecutor's file. Third, King believed his punishment was too harsh and thought the prosecutor said some unfair things during the trial that might have influenced the jury. The court agreed that the sentence was too much in terms of the fine. They lowered the fine from $30,000 to $10,000 but kept the prison sentence the same. In the end, King's prison sentence stands, but the amount he has to pay was reduced.
In OCCA case No. F-2002-1428, Henry C. Flowers, Jr. appealed his conviction for False Declaration of Ownership to a Pawnbroker, After Former Conviction of Two or More Felonies. In an unpublished decision, the court decided to affirm Flowers' conviction but remand the case for resentencing. One judge dissented. Flowers was found guilty by a jury and sentenced to twenty years in prison. His appeal included two main points of error. The first point was that he believed there wasn't enough proof that he made a false declaration to a licensed pawnbroker. He argued that since the employee who helped him at the pawnshop was not a licensed pawnbroker, his actions should not count as a crime. However, the court explained that the law only requires the pawnshop owner to be licensed, not every employee. Therefore, the court felt there was enough evidence for the jury to decide that Flowers committed the crime. The second point raised by Flowers was about how the judge handled his sentence. The judge seemed unsure whether he could make Flowers' twenty-year sentence run at the same time as another sentence he already had. The court explained that judges do have the authority to run sentences concurrently and that not knowing this could be an abuse of discretion. Because of this, the case was sent back to the lower court for the judge to review the sentencing again. Overall, the court upheld Flowers' conviction but said the judge needs to reassess how to handle the sentences.
In OCCA case No. F-2000-880, the appellant appealed his conviction for possession of marijuana. In an unpublished decision, the court decided to modify the appellant's sentence from ten years to seven years imprisonment. One judge dissented, stating that the error did not amount to plain error and that he would not modify the sentence.
In OCCA case No. F-2000-821, Mitchell Lawrence Rose appealed his conviction for Solicitation of First Degree Murder. In a published decision, the court decided to affirm the judgment but vacate the sentence and remand the case for resentencing. One judge dissented.
In OCCA case No. F 2000-341, Cortez Lamont Franklin appealed his conviction for Possession of a Controlled Dangerous Substance (Cocaine Base). In an unpublished decision, the court decided to reverse the conviction. One judge dissented. Cortez Franklin was found guilty after a trial in Oklahoma County. The jury sentenced him to twenty years in prison. He appealed, arguing that the trial court should have excluded evidence found during his arrest, claiming it violated his rights under the Fourth Amendment. He also said the evidence was not enough to prove he had the drugs. The appellate court looked at the reasons for stopping Franklin. The judges found that the police did not have reasonable suspicion when they detained him. Because Franklin's detention was considered unreasonable, they stated that the drugs found during this unlawful detention could not be used as evidence. Since there was no valid evidence left to support his conviction, the court reversed the trial court's decision, meaning Franklin's case was sent back with instructions to dismiss the charges against him. They did not need to discuss Franklin's second point about the sufficiency of the evidence.