Defense Counsel

F-2021-554

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In OCCA case No. F-2021-554, Robert Willie Wilson, Jr. appealed his conviction for accessory to burglary in the second degree and carrying weapons. In an unpublished decision, the court decided to reverse and remand Count 1 (accessory to burglary) with instructions to dismiss the charge, while affirming Count 2 (carrying weapons). One member of the court dissented. The case revolved around Wilson's alleged involvement in a burglary at a laundromat. The jury found him guilty of being an accessory rather than guilty of the burglary itself. They sentenced him to twenty years for the accessory charge and thirty days for carrying a weapon, to be served at the same time as his other sentence. Wilson challenged his conviction, arguing that the evidence was not enough to prove he was an accessory to the burglary. He claimed that the State failed to show he actively concealed or helped another person, named Justin White, who committed the burglary. The law requires that to be an accessory, someone must help the offender escape arrest or punishment after the crime. During the trial, the evidence suggested that while Wilson was present in the vehicle during the time of the burglary, there was no proof that he helped White in any way after the crime. The court pointed out that Wilson's mere presence did not make him guilty. It highlighted that the State only showed he knew about the burglary, which was not enough to convict him as an accessory. Ultimately, the court concluded that the evidence did not support a conviction for accessory to burglary beyond a reasonable doubt. Therefore, they reversed Wilson's conviction for that charge, but they did maintain the conviction for carrying a weapon. The remaining claims in Wilson's appeal were no longer necessary to consider due to this decision.

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F-2017-889

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In OCCA case No. F-2017-889, Joseph Stanley Harjo appealed his conviction for Child Sexual Abuse. In a published decision, the court decided to reverse the conviction and remand the case to the District Court of Muskogee County with instructions to dismiss. One judge dissented. Harjo was convicted in a trial where the jury sentenced him to life imprisonment. He argued that the court did not have the right to try him because he is a member of the Creek Nation, and the crime occurred within the Creek Reservation. This raised important questions about whether he is legally recognized as an Indian and if the crime took place on tribal land. The case was sent back to the District Court for a fact-finding hearing, where it was determined that Harjo is 1/4 Indian blood, a member of the Muscogee (Creek) Nation, and that the crime took place within the jurisdiction of the tribe. Both parties agreed on these facts, leading the District Court to conclude that the state did not have the authority to prosecute Harjo. After careful review of the case and the findings from the evidentiary hearing, the court determined that Harjo was indeed an Indian under federal law, and the crime occurred in Indian Country. Therefore, the state had no jurisdiction over the case. The court reversed the judgment and sent the case back to be dismissed.

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M-2019-664

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In OCCA case No. M-2019-664, the appellant appealed his conviction for illegal entry with unlawful intent, outraging public decency, and assault on a police officer. In an unpublished decision, the court decided to reverse the conviction for illegal entry but affirmed the convictions for outraging public decency and assault on a police officer. One judge dissented. James Brewer was accused of several misdemeanors after the police were called to his neighbor's house because he was trying to break in. The neighbor's children had reported the incident to their mother, who called the police. When officers arrived, they found Brewer in a neighboring home, naked on the floor, being restrained by his brother. He was not cooperative when the police tried to arrest him. During the trial, the court heard from police officers but did not hear directly from the neighbor or her children. The prosecution's case relied on the officers' testimonies about what they found and how they arrested Brewer. He represented himself during the trial with the help of standby counsel. Brewer raised several issues on appeal. First, he argued that he should have received credit for the time he spent in jail before the trial. The court explained that it is up to the trial judge to decide whether to give this credit and stated that there was insufficient information showing that he was unable to pay for a bond that would have let him out of jail before the trial. He also claimed the prosecutor made mistakes during the trial, like bringing up parts of his attitude that were not relevant and making comments during closing arguments. The court decided that the prosecutor's actions did not unfairly affect the trial. Brewer argued that there was not enough evidence for his conviction for illegal entry. The court agreed that the evidence was weak because the neighbor and her children did not testify and there was no direct proof linking him to tampering with the air conditioners. His other claims related to cross-examination and the wording of the charges against him were found to be insufficient to overturn the convictions for the other two charges. His conviction for the illegal entry was reversed, meaning the prosecution could not pursue it further, but the convictions for outraging public decency and assault on a police officer were upheld. One judge had a different opinion and dissented from the majority ruling.

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F-2019-605

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In OCCA case No. F-2019-605, Jerome Matthew McConell appealed his conviction for Obtaining Merchandise by False Pretenses. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court, except for certain parts which were stricken. One member of the court dissented. McConell was found guilty after a bench trial in the District Court of McCurtain County. He was sentenced to thirty months in prison, but he argued that his trial was unfair for three main reasons. First, he claimed he was not allowed to confront some witnesses properly because hearsay evidence was permitted. Hearsay is when someone testifies about what another person said outside of court, which usually isn't allowed as direct evidence. However, the court found no real error in this situation because McConell's lawyer brought up the same issues during questioning. Therefore, the court did not see a violation of his rights. Second, McConell argued that evidence from another incident should not have been allowed by the court because the state did not give proper notice about it. However, the court decided that the evidence was relevant and no mistakes were made in permitting it. Lastly, McConell noted that the written sentence and conditions after his trial did not match what was discussed in court. The judge had ordered conditions that he should not enter a casino and also mentioned costs for prosecution that were not allowed under the law. The court agreed that these parts of the judgment were incorrect and decided to strike them from his sentence. In summary, the appeals court did affirm McConell's conviction, meaning they upheld the trial's decision, but they corrected some errors in how his sentence was recorded and ordered the lower court to make those changes.

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F-2018-1263

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In OCCA case No. F-2018-1263, Leatherwood appealed his conviction for Murder in the First Degree, Possession with Intent to Distribute a Controlled Dangerous Substance, Possession of a Firearm During Commission of a Felony, Maintaining a Place for Keeping/Selling Controlled Substances, and Unlawful Possession of Drug Paraphernalia. In an unpublished decision, the court decided to affirm his convictions. One judge dissented. Travis Michael Leatherwood fatally shot Aaron Smith on Halloween night in 2017. They were once friends and worked together selling marijuana, but their friendship soured when Smith stole marijuana from Leatherwood. On the night of the shooting, Smith, upset by an exchange of insults with Leatherwood, went to confront him, unarmed. Leatherwood shot Smith with a rifle before he could say a word. Smith later died from the gunshot wound. After the shooting, police found a lot of evidence connecting Leatherwood to marijuana distribution at his home, including a rifle that he had used to shoot Smith and other drug-related items. Leatherwood argued in court that he acted in self-defense, but the jury did not agree. They concluded that he was the aggressor, especially since he called Smith a coward and provoked him. The jury found him guilty of first-degree murder, along with several drug-related charges. Leatherwood raised multiple issues on appeal, including claims that the state did not prove he acted outside of self-defense, that the court gave confusing jury instructions, allowed improper amendments to the charges, and that he had ineffective assistance of counsel. However, the court disagreed with all of his claims. In terms of self-defense, the court ruled that Leatherwood’s actions and words indicated he was not acting in self-defense but rather was the one who provoked the situation. He had armed himself before Smith arrived and shot him before any confrontation occurred. The court also discussed the jury instructions, concluding that the district court did not err by omitting instructions on a lesser charge of heat of passion manslaughter since there was no evidence to support that Smith's actions would provoke such a response from Leatherwood. As for the amendment of charges, the court determined that Leatherwood was sufficiently informed of the charges he faced and that he could defend against them adequately. The evidence showed that he had both the firearm and the controlled substances as part of his operations, fulfilling the requirements for his convictions. Leatherwood's claim that his lawyer was ineffective was also denied because the court found that the lawyer's strategies were reasonable given the overwhelming evidence against Leatherwood. The lawyer focused his arguments on the more serious murder charge rather than the drug offenses, which the jury could have easily decided against Leatherwood irrespective of those counts. Finally, the court ruled that Leatherwood's sentence was not excessive given the nature of the crime and his actions. The judge pointed out that the jury was aware of his age (20 at the time of the crime) and other circumstances, which did not make the sentence shockingly excessive. Ultimately, the court affirmed Leatherwood's convictions and ordered a separate hearing regarding the restitution amount, which needed to be calculated more accurately.

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F-2018-1267

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**Case Summary: Shelley Jo Duncan's Appeal** **Court:** Oklahoma Court of Criminal Appeals **Judge:** Rowland, Judge **Case Number:** CF-2017-31 **Verdict:** Affirmed **Background:** Shelley Jo Duncan, a teacher, was charged with Lewd Acts with a Child. Her trial was conducted in Cleveland County after a change of venue due to pre-trial publicity. Duncan was sentenced to six years in prison in accordance with the jury's recommendation. **Issues Raised on Appeal:** 1. The denial of a motion to strike two jurors for cause. 2. Claims of improper commentary on her right to remain silent. 3. The credibility of the alleged victim and sufficiency of evidence for conviction. 4. Admission of other crimes evidence regarding past drug use. 5. Allegations of ineffective assistance of counsel. 6. Claims of prosecutorial misconduct during closing arguments. 7. Challenge to the excessive nature of her sentence. 8. Cumulative errors affecting the fairness of the trial. **Findings:** 1. **Jurors for Cause:** The court did not err in denying the motion to strike jurors S.M. and J.S. Duncan did not preserve her claim regarding J.S. since a peremptory challenge was successfully used to remove her from the jury. 2. **Right to Remain Silent:** Testimony regarding the investigation did not comment on Duncan’s post-arrest silence. Any potential error was cured by the court's action in sustaining objections. 3. **Credibility of Victim:** The court found the victim's testimony credible and sufficient, supporting the conviction based on the preponderance of evidence, even without corroboration. 4. **Other Crimes Evidence:** Duncan’s argument related to drug use was denied as she had introduced this evidence herself. Inviting error prevented relief. 5. **Ineffective Assistance of Counsel:** Duncan could not demonstrate that her counsel's performance was deficient or that it prejudiced her case sufficiently to impact the outcome. 6. **Prosecutorial Misconduct:** Claims of improper comments were denied, as the prosecutor’s comments did not exceed the acceptable limits of argument during closing statements. 7. **Excessive Sentence:** The six-year sentence was within statutory limits and did not shock the conscience of the court, thus it was upheld. 8. **Cumulative Effect of Errors:** The court found no cumulative errors that would necessitate a new trial or modification of the sentence, as no individual error was identified. **Conclusion:** The Oklahoma Court of Criminal Appeals affirmed the judgment and sentence of the district court. Duncan was denied relief on all issues raised in her appeal, with the court finding no significant errors affecting her right to a fair trial. **Access the full opinion:** [Download PDF of the Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1267_1734782177.pdf)

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F-2018-1061

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**Court of Criminal Appeals of the State of Oklahoma** **Case Summary: Joshua Loyd Bullard v. The State of Oklahoma** **Case No.: F-2018-1061** **Date Filed:** January 30, 2020 --- **Overview:** Joshua Loyd Bullard was convicted in the District Court of Stephens County for several offenses, including Petit Larceny, Resisting a Peace Officer, and Assault and Battery on a Police Officer. The jury determined sentences for each count, ultimately resulting in consecutive sentences totaling eight years, along with fines. Bullard appealed on two grounds: ineffective assistance of counsel and prosecutorial misconduct. --- **Propositions of Error:** 1. **Ineffective Assistance of Counsel:** - Claim: Bullard contended that his attorney failed to request a third competency evaluation. - Analysis: The court assessed this claim based on the two-pronged test from *Strickland v. Washington*. It determined that defense counsel did not provide deficient performance, noting that two prior evaluations had confirmed Bullard's competency. There was no evidence suggesting a change in Bullard's mental state warranting further evaluation. Thus, the court ruled that there was no ineffective assistance. 2. **Prosecutorial Misconduct:** - Claim: Bullard argued that improper comments by the prosecutor regarding his prior suspended sentence during closing arguments prejudiced his trial. - Analysis: The court found that without objection from Bullard's counsel, review was limited to plain error. The court determined that the prosecutor’s references were permissible as they pertained to relevant evidence of prior convictions. Furthermore, the outcome of the sentencing showed that the jury's verdict was reasonable and not influenced by any improper statements. --- **Decision:** The appeals court affirmed the judgment and sentence imposed by the District Court, finding no merit in either of Bullard's propositions for appeal. **Judgment: AFFIRMED.** --- **Note:** The decision referenced case law and standards concerning competency evaluations and prosecutorial conduct during trials, underscoring the adherence to procedural norms. **For the Full Text Access:** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1061_1734859049.pdf)

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F-2018-957

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DUSTIN SCOTT PATTON,** Appellant, Case No. F-2018-957 **V.** **STATE OF OKLAHOMA,** Appellee. **SUMMARY OPINION** **HUDSON, JUDGE:** Dustin Scott Patton was convicted in the District Court of Kay County, Case No. CF-2017-258, of Assault and Battery with a Deadly Weapon, violating 21 O.S.2011, § 652(C). A jury recommended a ten-year sentence, and Honorable David Bandy, District Judge, imposed the sentence as per the jury's verdict. Patton appeals with two propositions of error. 1. **The modified jury instruction improperly relieved the State of proving an essential element of the crime charged.** 2. **Appellant was deprived of a fair trial due to numerous pleas for sympathy for the victim during trial.** Upon thorough review of the record and arguments presented, we find no grounds for relief. Patton's judgment and sentence are **AFFIRMED**. **Proposition I:** Patton concedes he did not object to Instruction No. 24 at trial, necessitating plain error review. To establish plain error, Patton must show an actual error that is obvious and affects his substantial rights. Previous case law indicates that certain weapons, like knives, are per se deadly weapons. Instruction No. 24, which classified a knife as a deadly weapon, was not erroneous, and thus Proposition I is **denied**. **Proposition II:** For prosecutorial misconduct claims, relief is granted only if the misconduct renders the trial fundamentally unfair. Patton only objected to the display of the victim’s scars. The presentation of the victim’s injuries primarily served to illustrate the crime's severity and the use of force, which was pertinent to the charges against Patton. This evidence was not unduly prejudicial, and thus, Proposition II is also **denied**. **DECISION:** The District Court's Judgment and Sentence are **AFFIRMED**. *Issued upon the delivery and filing of this decision.* **OPINION BY:** HUDSON, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. --- For further details, you can download the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-957_1734873972.pdf).

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F-2018-1144

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In the case of William G. Epperly v. The State of Oklahoma (Case No. F-2018-1144), the Oklahoma Court of Criminal Appeals upheld the judgment and sentence imposed by the District Court of Oklahoma County. The court found that the evidence presented during Epperly's trial was admissible, and his claims of error, including issues related to hearsay, relevance, and jury instructions, did not warrant reversal of his conviction for Sexual Abuse of a Child. ### Key Points from the Court's Decision: 1. **Admission of Excited Utterance Evidence**: The court found that statements made by Tiffany Epperly (Epperly's spouse) to two witnesses fell under the excited utterance exception to hearsay, as she was under emotional stress when she reported witnessing the alleged abuse. 2. **Text Messages and Witness Testimony**: The court ruled that reading text messages sent by Sutphen to Tiffany Epperly was not hearsay because they were used to challenge Tiffany's credibility rather than to prove the truth of the matter asserted. Additionally, the testimony about Tiffany's changing demeanor was deemed relevant to the case. 3. **Witness Reading from Police Report**: Former Officer Richardson's reading from his police report, which included Tiffany Epperly's statements, was allowed because it served to impeach her trial testimony, not as hearsay. 4. **Internet Search Evidence**: The court deemed the evidence concerning Epperly's internet search about Oklahoma sex laws to be relevant, as it could suggest a consciousness of guilt. 5. **Judgment and Sentence Corrections**: The court noted that the issues regarding credit for time served and the $100 fine were resolved with an amended judgment, making that claim moot. 6. **Jury Instruction on Sex Offender Registration**: The court did not find that the failure to instruct the jury about sex offender registration constituted an error warranting relief, consistent with prior rulings. 7. **Cumulative Error Doctrine**: The court concluded that no individual errors occurred that would justify reversal and therefore found no merit in the cumulative error claim. ### Conclusion: The court affirmed the judgment and sentence of the district court, concluding that all claims raised by Epperly were without merit. The decision illustrates the court's adherence to evidentiary rules and its support for the discretion exercised by the trial judge in admitting evidence. For more detailed information, the full opinion can be accessed [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1144_1734787047.pdf).

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F-2018-1103

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BERT GLEN FRANKLIN,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-1103** **OPINION** LUMPKIN, JUDGE: Appellant, Bert Glen Franklin, was tried by jury and convicted in a consolidated trial of Count 1, First Degree Murder (Child Abuse), and of Count 2, Solicitation of First Degree Murder. The jury recommended punishment of life imprisonment without parole on Count 1 and life imprisonment on Count 2, with the sentences running consecutively. Appellant appeals from this judgment and sentence raising two propositions of error. **PROPOSITION I: Joinder of Charges** Appellant contends that his cases should not have been joined in one trial, asserting that this improper joinder resulted in prejudice. However, as Appellant failed to object at trial, we must review this for plain error, which requires an actual error that is plain or obvious and that affects the Appellant's substantial rights. The statute governing joinder of charges, 22 O.S.2011, § 438, permits the trial of two or more offenses together if they could have been joined in a single indictment. Our analysis is guided by reconciling the factors set forth in previous case law. 1. **Same Type of Offenses:** The charges of murder and solicitation reflect a common theme of violence directed towards individuals involved with the defendant, qualifying them as the same type of offenses. 2. **Proximity in Time:** While the offenses occurred approximately seventeen months apart, the delay was due to Appellant's incarceration. They are sufficiently related given the circumstances under which Appellant acted. 3. **Proximity in Location:** Both offenses were committed within Oklahoma County, suggesting a logical relationship between the two. 4. **Overlapping Proof:** Evidence supporting each charge would have been admissible in separate trials since they are intrinsically linked to Appellant’s actions and intent. Given these observations, we find that the joinder was proper, and Appellant suffered no prejudice; therefore, no error occurred. We deny Proposition I. **PROPOSITION II: Ineffective Assistance of Counsel** Appellant argues that his trial counsel was ineffective for not objecting to the joinder. Under the Strickland test, Appellant must demonstrate both that counsel's performance was deficient and that such performance prejudiced his case. Since we determined in Proposition I that the joinder was appropriate, Appellant cannot show that any failure to object prejudiced his case. As a result, we also deny Proposition II. **DECISION** The judgment and sentence are affirmed. The mandate is ordered issued upon the delivery and filing of this decision. --- **APPEARANCES:** **For Appellant:** R. Scott Adams Box 926 Norman, OK 73070 **For Appellee:** Mike Hunter Attorney General of Oklahoma Theodore M. Peeper, Asst. Attorney General 320 Robert S. Kerr, #505 Oklahoma City, OK 73102 --- **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.:** Concur in Result **KUEHN, V.P.J.:** Recuse **HUDSON, J.:** Concur **ROWLAND, J.:** Recuse --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1103_1734788162.pdf) This ruling affirms the conviction and sentences of Bert Glen Franklin and addresses the legal standards regarding the joinder of offenses and ineffective assistance of counsel.

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F-2018-1046

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**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.

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F-2019-54

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In the case of Anthony Phillip Miller, Jr. v. The State of Oklahoma (Case No. F-2019-54), the Oklahoma Court of Criminal Appeals affirmed Miller's conviction and sentence for child sexual abuse. The trial, held in the District Court of Tulsa County, resulted in a jury finding Miller guilty and sentencing him to twenty-five years imprisonment, with an additional ten years of post-imprisonment supervision. Miller raised several issues on appeal: 1. **Prosecutorial Misconduct**: Miller argued that the prosecutor's comments during closing arguments deprived him of a fair trial. He claimed that these comments undermined his constitutional rights, including his right to a jury trial and his right to remain silent. Although the Court acknowledged that some comments were improper, they ruled that the overall evidence against Miller, which included a confession, rendered any prosecutorial error harmless. 2. **Ineffective Assistance of Counsel**: Miller contended he was denied effective legal representation because defense counsel indicated in opening statements that he would testify but ultimately did not. However, the Court found that this was a strategic decision made after consulting with Miller and did not demonstrate ineffective assistance. 3. **Cumulative Error**: Miller claimed that, although no single error warranted reversal, the cumulative effect of errors did. The Court found that there were no combined errors affecting the trial's outcome. Ultimately, the Court upheld Miller's conviction, stating that the errors did not undermine the integrity of the trial, and affirmed the sentence imposed by the District Court. The mandate was ordered to be issued following the decision.

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F-2018-1188

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In this case summary, Alfonzo Lamonse Vineyard was convicted of multiple charges in the District Court of Tulsa County, including Assault and Battery with a Deadly Weapon, First Degree Burglary, Possession of a Firearm After Former Conviction of a Felony, and several counts of Obstructing an Officer, among others. The jury found Vineyard guilty on all counts except one (Assault and Battery), and the court subsequently sentenced him to life imprisonment on the more serious counts, with concurrent and consecutive terms for other counts. Vineyard's appeal raised five main issues: 1. **Waiver of Right to Counsel**: The court found that Vineyard’s waiver of his right to counsel was voluntary, knowing, and intelligent. He was adequately informed of the risks associated with self-representation. 2. **Right to Confrontation**: Vineyard argued that his right to confront witnesses was violated when the court allowed the reading of the victim's preliminary hearing testimony, as she did not appear at trial. The court found that the state had made sufficient efforts to locate the victim and that her unavailability was justified, thus upholding the admission of her prior testimony. 3. **Sufficiency of Evidence**: Vineyard contended that the evidence was insufficient to support his conviction for Assault and Battery with a Deadly Weapon. The court determined that the evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt. 4. **Lesser Included Offense Instruction**: Vineyard argued that the trial court erred by failing to instruct the jury on the lesser offense of Pointing a Firearm. While the court acknowledged that the lack of instruction was error, it did not affect the trial's outcome, and therefore did not warrant reversal. 5. **Cumulative Error**: Lastly, Vineyard claimed that the cumulative effect of errors warranted a new trial. The court found no individual errors that affected the trial's fairness, thus rejecting this claim. Ultimately, the Oklahoma Court of Criminal Appeals affirmed the district court's judgment and sentence, concluding that none of the raised issues warranted relief. The decision highlighted the adherence to established legal standards regarding self-representation, confrontation rights, evidentiary sufficiency, jury instructions, and cumulative error analysis. [Download the full opinion here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1188_1734784723.pdf).

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F-2018-900

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ANGEL MUNOZ,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-900** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JAN - 9 2020** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Appellant, Angel Munoz, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2016-701 in the District Court of Oklahoma County, by the Honorable Glenn M. Jones, District Judge. On March 7, 2018, Appellant entered a plea of guilty to Count 1: Assault and Battery With a Dangerous Weapon, with sentencing deferred for a period of five years under probation conditions until March 6, 2023. On June 26, 2018, the State filed an application to accelerate Appellant's deferred judgment and sentencing, alleging he violated probation by committing the new crime of Possession of a Firearm after a prior felony conviction, as charged in Oklahoma County District Court Case No. CF-2018-2625. An amended application was filed on August 21, 2018. At the hearing on this application, the State called Appellant's probation officer, Tammera Saavedra. During a home visit on April 13, 2018, Officer Saavedra found a nine-millimeter semiautomatic pistol and ammunition in plain view in a garage where Appellant claimed to be staying. Additionally, personal items belonging to Appellant were found near the firearm, leading to his arrest for possessing the firearm. Appellant's brother-in-law, Arturo Plascencia, testified that Appellant did not live in the garage, stating that he had never stayed there. Appellant corroborated this, but both testimonies were contradicted by evidence showing Appellant's possession and control of the area where the gun was found. After hearing the evidence, Judge Jones found that Appellant violated his probation. Consequently, he accepted the State's recommendation and sentenced Appellant to a term of ten years. Appellant raises two propositions of error on appeal: 1. **Proposition I**: The trial court abused its discretion by accelerating Appellant's sentence when the State failed to provide sufficient competent evidence of the alleged new offense. 2. **Proposition II**: The acceleration judgment should reflect Appellant's conviction for Assault and Battery With a Dangerous Weapon, rather than Assault and Battery With a Deadly Weapon. **ANALYSIS** In **Proposition I**, Appellant argues that the evidence was insufficient to establish his knowledge of the firearm's presence. The standard for reviewing such claims requires that the court finds whether a rational trier of fact could have concluded the essential elements of the probation violation were met by a preponderance of the evidence. Evidence presented indicated Appellant's admission to living in the garage at the time the firearm was discovered. Testimony from Officer Saavedra and physical evidence reinforced the conclusion that Appellant had dominion and control over the area where the firearm was located. Conflicting testimonies regarding Appellant's residence and possession were matters for the court to evaluate. Thus, Appellant failed to substantiate that Judge Jones acted irrationally in his ruling. In **Proposition II**, Appellant argues for a correction of the accelerating judgment to accurately reflect his offense. The State agrees that this matter warrants attention. Therefore, it should be remanded to the District Court for the necessary correction. **DECISION** The order of the District Court of Oklahoma County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2016-701 is AFFIRMED. However, the case is REMANDED to the District Court for a correction in accordance with Appellant's request. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision. **APPEARANCES** **For the Appellant:** Kenneth C. Watson, Nancy Walker-Johnson Attorney at Law 119 N. Robinson, Suite 640 Oklahoma City, OK 73102 **For the State:** Tiffany Noble, Mike Hunter, Diane L. Slayton Assistant District Attorneys 505 County Office Building Oklahoma City, OK 73102 **OPINION BY:** LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-900_1735119586.pdf)

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F-2018-1083

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The document is a summary opinion from the Court of Criminal Appeals of Oklahoma regarding the case of Bryan Lee Guy, who was appealing his conviction for robbery with a dangerous weapon. Below is a concise breakdown of the case and its outcome: ### Case Overview: - **Appellant**: Bryan Lee Guy - **Appellee**: The State of Oklahoma - **Court**: Court of Criminal Appeals of Oklahoma - **Original Jurisdiction**: District Court of Tulsa County - **Case Number**: F-2018-1083 - **Trial Judge**: Honorable Dawn Moody - **Sentence**: Thirty-seven years imprisonment (with a requirement to serve 85% before parole eligibility) ### Issues on Appeal: 1. **Instruction on Inconsistent Statements**: Guy argued that the jury was not properly instructed regarding the use of a victim's prior inconsistent statements. The court concluded this omission was not plain error and did not affect the trial's outcome. 2. **Conflicting Instructions**: Guy contended that jury instructions about the return of the verdict and lesser offenses were conflicting. The court found no plain error in these instructions, stating they did not misdirect the jury. 3. **Post-Imprisonment Supervision Instruction**: Guy challenged the inclusion of an instruction on mandatory post-imprisonment supervision, which the court acknowledged was given in error but did not constitute plain error affecting his rights. 4. **Ineffective Assistance of Counsel**: Guy claimed his attorney was ineffective on several grounds, including not reasserting a pretrial motion to dismiss and failing to take judicial notice of prior convictions. The court found no merit in these claims, concluding Guy could not show that these alleged deficiencies affected the trial outcome. ### Court's Decision: - The court affirmed the judgment and sentence of the district court. - Guy's request for an evidentiary hearing to further support his claim of ineffective assistance was denied. ### Conclusion: The appeal did not result in a reversal of the conviction or sentence, as the court found that the issues raised were either without merit or did not rise to the level of plain error that would impact the fairness of the trial.

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F-2018-566

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This text is a legal opinion from the Oklahoma Court of Criminal Appeals regarding the case of Keenan Lynn Holcomb, who was convicted of multiple crimes including first degree murder, unlawful removal of a dead body, kidnapping, and forcible oral sodomy. The appeal discusses various propositions raised by the appellant, including issues with the admission of evidence, sufficiency of evidence for specific charges, claims of ineffective assistance of counsel, and concerns about the trial court's discretion regarding credit for jail time served. The court ultimately affirmed the convictions and sentences, concluding that the trial court did not abuse its discretion in its rulings, that the evidence was sufficient to support the convictions, and that claims of ineffective assistance and other errors did not merit relief. The opinion emphasizes the role of the jury in determining the facts of the case, as well as the importance of the defendant's right to confront witnesses and the sufficiency of prior cross-examination. For further reading or reference, a PDF of the full opinion is available through the provided link.

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F-2018-626

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In the case of Carl Douglas Crick, Jr. v. The State of Oklahoma, the Court of Criminal Appeals of Oklahoma reviewed Crick's appeal following a jury trial that found him guilty of multiple counts of sexual offenses, including first degree rape and lewd acts with a child. Crick received life sentences for certain counts, while others received lesser prison terms. The trial court ordered some sentences to run concurrently and others consecutively. Crick's main contention on appeal was that he received ineffective assistance of counsel, specifically citing his attorney's failure to present certain witnesses and to object to improper testimony from a prosecution witness that allegedly vouched for the credibility of the victim. The court applied the standard set forth in Strickland v. Washington, which requires the appellant to show that his counsel’s performance was deficient and that this deficiency prejudiced the outcome of the trial. The court determined that the evidence presented by Crick did not clearly demonstrate a strong possibility that counsel’s performance fell below constitutional standards. As such, Crick's request for an evidentiary hearing to further explore these claims was denied. The court also assessed the claim concerning the prosecution witness's testimony. It concluded that the alleged vouching was not comparable to previous cases that warranted reversal, thus affirming that counsel's choice not to object did not amount to deficiency. Ultimately, the Court of Criminal Appeals affirmed the judgment and sentence of the trial court, indicating that Crick had not established a violation of his right to effective counsel. The decision was issued with a note for the mandate to be ordered upon delivery and filing of the decision.

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F-2018-954

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-954** --- **CHRISTIAN D. MOLINA-SOLORZANO, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** --- **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Christian D. Molina-Solorzano appeals his Judgment and Sentence from the District Court of Beckham County, Case No. CF-2017-259, for Aggravated Trafficking in Illegal Drugs, in violation of 63 O.S.Supp.2015, § 2-415. The Honorable F. Douglas Haught presided over the non-jury trial, found Molina-Solorzano guilty, and sentenced him to fifteen years imprisonment, $1,000.00 fine, and one year of post-imprisonment supervision. Molina-Solorzano raises the following issues: 1. Ineffective assistance of counsel for failing to challenge the basis for the traffic stop. 2. Ineffective assistance of counsel for failing to inform him of his rights under the Vienna Convention on Consular Relations (VCCR). 3. Entitlement to retroactive application of recent changes in law regarding parole eligibility for aggravated trafficking convictions. **DECISION:** After review, we find relief is not warranted and affirm the district court's Judgment and Sentence. **1. Ineffective Assistance of Counsel: Traffic Stop Challenge** Molina-Solorzano asserts that defense counsel was ineffective by not challenging the validity of the traffic stop, which he claims was based on race discrimination and an inadequate fog light infraction. To succeed on an ineffective assistance claim, Molina-Solorzano must demonstrate: - Counsel's performance was deficient. - The deficiency resulted in prejudice that affected the outcome of the trial. The Fourth Amendment prohibits unreasonable searches and seizures, and a traffic stop is valid if the officer had probable cause or reasonable suspicion of a traffic violation. The record, including video evidence from the traffic stop, supports that the stop was justified due to a fog light infraction. The trooper's testimony confirmed that visibility was over a mile, and thus the use of fog lights constituted a violation under Oklahoma law. Since the stop was justified, Molina-Solorzano cannot establish that counsel's failure to challenge it affected the trial's outcome, denying his ineffective assistance claim. **2. Ineffective Assistance of Counsel: VCCR Rights** Molina-Solorzano also contends that defense counsel failed to inform him of his rights under the VCCR, which would have allowed him to contact the Mexican consulate for assistance. To evaluate this claim, we consider: - Whether he was unaware of his right to contact his consulate. - Whether he would have utilized that right had he known. - Whether the consulate's assistance would have likely aided his defense. The record lacks evidence that Molina-Solorzano was unaware of his rights or that assistance from the consulate would have changed the trial's outcome. Appellate counsel's assertions do not suffice to demonstrate these conditions. Therefore, this claim is also denied. **3. Retroactive Application of Parole Changes** Molina-Solorzano argues that he should benefit from recent legislative proposals reducing parole eligibility terms for aggravated trafficking convictions. However, as legislation is not retroactive unless explicitly stated, and the referenced Senate Bill was never enacted, his claim is moot. **CONCLUSION:** The Judgment and Sentence of the district court is AFFIRMED. The MANDATE is ORDERED issued upon filing of this decision. **APPEARANCES** - Kenny R. Goza, Counsel for Defendant - Debra K. Hampton, Counsel for Appellant - Gina R. Webb, Counsel for State - Mike Hunter, Attorney General of Oklahoma - Joshua R. Fanelli, Assistant Attorney General **OPINION BY:** ROWLAND, J. **Concur in Results:** KUEHN, V.P.J. **Concur:** LUMPKIN, J. **Concur:** HUDSON, J. --- For the full decision, click here: [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-954_1734874505.pdf)

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F-2018-814

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-814** **MELINDA GAYLE HENRY,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. --- **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** Appellant, Melinda Gayle Henry, was convicted by jury of Embezzlement, in violation of 21 O.S.Supp.2012, § 1451, in the District Court of Nowata County Case Number CF-2016-71. The jury recommended a punishment of five years imprisonment and a fine of $10,000.00, which the trial court imposed. Appellant now appeals this judgment and sentence. **Propositions of Error:** 1. **Ineffective Assistance of Counsel:** Appellant contends trial counsel was ineffective for failing to secure necessary discovery. 2. **Failure to Request Continuance:** Appellant also asserts counsel was ineffective for not seeking a continuance for trial. 3. **Plain Error:** Lastly, Appellant claims the trial court committed plain error by proceeding to trial with unprepared counsel. **Analysis:** **Propositions One and Two (Ineffective Assistance of Counsel):** Under the Strickland v. Washington framework, Appellant must show (1) that counsel's performance was deficient and (2) that the deficiency prejudiced the defense. There is a strong presumption that counsel's conduct falls within a range of reasonable professional assistance. In Proposition One, Appellant argues that her counsel did not obtain critical records from the victim, The Woodshed convenience store, potentially impacting her defense. Counsel did request the records but believed they were destroyed. The trial court found that the State had offered access to the records, which the defense did not utilize. Appellant's assertion lacks evidence that obtaining these records would have changed the outcome of her trial; thus, this claim is speculative and fails to demonstrate prejudice. In Proposition Two, Appellant claims counsel was ineffective for not requesting a continuance due to the lack of records. However, the trial court's history with the case and previous findings suggested a request for a continuance would have been denied. Therefore, counsel would not be ineffective for abandoning a baseless motion. **Proposition Three (Plain Error):** Appellant's final claim of plain error regarding the trial being held without sufficient preparation fails under Rule 3.5(A)(5) of the Oklahoma Court of Criminal Appeals, which requires specific citations to the record. This assertion is superficial and unsubstantiated, leading to its waiver from appellate review. **Decision:** The judgment and sentence are **AFFIRMED**. **Mandate Ordered.** --- **APPEARANCES:** **AT TRIAL:** - **Mark Kane, Counsel for Appellant** - **Mike Hunter, Attorney General of Oklahoma; Kevin Buchanan, Assistant District Attorney for the State** **ON APPEAL:** - **Kevin D. Adams, Counsel for Appellant** - **Katherine R. Morelli, Assistant Attorney General for the State** **OPINION BY:** **LUMPKIN, J.** **LEWIS, P.J., KUEHN, V.P.J., HUDSON, J., ROWLAND, J.:** Concur in Result [Download Full Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-814_1735213396.pdf)

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F-2018-964

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In the case of Robert Paul Lockner, Sr. v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals reviewed Lockner's conviction for assault and battery against police officers. Lockner was sentenced to four years in prison for each of the two counts, to be served consecutively. He raised several arguments on appeal, which the court addressed. 1. **Self-Defense Instruction**: Lockner contended that the trial court erred by not providing a jury instruction on self-defense. However, the court upheld that the trial court acted within its discretion, asserting that Lockner did not demonstrate entitlement to such an instruction as per the law governing use of force by police officers in effecting an arrest. 2. **Other Crimes Evidence**: Lockner argued that the introduction of evidence showing methamphetamine in his system at the time of arrest was improper because the state failed to notify him beforehand. The court found that this evidence was part of the res gestae of the charged offense, meaning it was closely connected to the events of the crime. Therefore, it was not subject to the notice requirement. They ruled that the evidence’s probative value outweighed any prejudicial effect. 3. **Cumulative Error Doctrine**: Lockner claimed that the combined effect of multiple alleged errors warranted a new trial. The court determined that since no individual error was sustained, there was no basis for a cumulative error claim. Ultimately, the court affirmed the judgment and sentence of the district court, concluding that Lockner's rights had not been violated and he had not demonstrated any errors that would warrant reversal of his conviction. In a special concurrence, Judge Kuehn elaborated on the inadmissibility of the drug test results in the state’s case-in-chief, but agreed that their eventual admission did not affect Lockner’s substantial rights due to the potential for impeachment in his own testimony. The decision from the Oklahoma Court of Criminal Appeals ensures that Lockner's conviction stands, as all claims for relief were denied.

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F-2018-36

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

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F-2018-622

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The opinion you provided appears to be a detailed court ruling from the Oklahoma Court of Criminal Appeals regarding the case of Jasmine Michelle Irvin, who was convicted of First Degree Murder. Below is a summary of the key points from the opinion: ### Case Summary - **Appellant**: Jasmine Michelle Irvin - **Appellee**: State of Oklahoma - **Case Number**: F-2018-622 - **Court**: Oklahoma Court of Criminal Appeals - **Judge**: Cynthia Ferrell Ashwood - **Verdict**: Convicted of First Degree Murder - **Sentence**: Life in prison without the possibility of parole ### Facts of the Case - The victim, Robert Godwin, was found shot to death in a secluded area. - Evidence indicated that Appellant had expressed a desire to have the victim killed and had made attempts to recruit others to help. - Appellant contacted the victim, leading him to the location where he was killed. - The victim suffered multiple gunshot wounds to the back, and information from cell phone data supported the timeline of events leading to the murder. ### Legal Propositions 1. **Waiver of Jury Trial**: Appellant challenged whether she knowingly and intelligently waived her right to a jury trial. The court found that the waiver was clear and the trial court had adequately assessed her understanding of the waiver. 2. **Victim Impact Testimony**: Appellant contended that her due process rights were violated due to the admission of victim impact testimony from a non-family member. The court acknowledged the error but did not find it sufficient to warrant relief since the trial judge was presumed to consider only competent evidence in sentencing. 3. **Ineffective Assistance of Counsel**: Appellant alleged her counsel was ineffective for not ensuring her waiver of the jury trial was valid and for failing to object to the victim impact testimony. The court found no deficiency in counsel's performance. 4. **Accumulation of Errors**: The court addressed Appellant's claim that the cumulative errors denied her a fair trial. It was determined that since no reversible errors were found, the cumulative error claim lacked merit. ### Conclusion - The court affirmed the judgment and sentence of the district court, concluding there were no reversible errors present. - An additional concurrence discussed the standard of review for the waiver of jury trial but ultimately supported the affirmation of the conviction. For more details or to read the full opinion, you may refer to the link provided in your original text.

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F-2018-446

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

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F-2017-1176

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In OCCA case No. F-2017-1176, Anthony Dean Wilkerson, Jr., appealed his conviction for seven counts of Child Sexual Abuse. In an unpublished decision, the court decided to affirm the judgment and sentence given to him. One judge dissented. Wilkerson was convicted by a jury for serious crimes against a child. The jury decided on the punishments for each count, giving him long sentences, including life imprisonment for some of the counts. The trial court judge sentenced him to serve these sentences one after the other, meaning he would spend a long time in prison. Wilkerson raised several issues in his appeal, saying that his trial was not fair. He argued that he was punished too harshly for the same crime (double punishment), that the trial court made mistakes during the trial, and that the total effect of these mistakes made it unfair for him. The court looked at all the evidence and decided that Wilkerson's arguments were not strong enough to change the original decision. For his first point about double punishment, the court noted that the crimes were separate acts, so it was okay for him to be convicted on all counts without violating laws against multiple punishments. For his second and third points, the court said the trial judge was allowed to let the state ask questions that helped the young victim, J.W., remember her experiences better and to clarify her testimony about what happened to her. Regarding the length of his sentences and how they were administered (running consecutively), the court found no reason to change what the jury and trial judge decided. The punishments fell within legal limits, and the court didn't find that they were too harsh when considering the seriousness of the crimes. Wilkerson also claimed there was an error about a fine that was not mentioned at his sentencing. The court agreed that it was a simple mistake and ordered the lower court to correct this. Finally, the court did not find any combined errors that affected the fairness of the trial, so they rejected his last claim about cumulative error. In conclusion, the court upheld the original decision and confirmed Wilkerson's convictions, but instructed the lower court to fix the written sentencing document to remove the fine.

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