Defense Counsel

F-2018-322

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In OCCA case No. F-2018-322, Juan Carlos Renovato-Juaregui appealed his conviction for assault and battery with intent to kill and domestic assault and battery resulting in great bodily harm. In an unpublished decision, the court decided to affirm the judgment and sentence. Judge Drummond merged the two counts into one, sentencing him to fifteen years in prison with credit for time served. The court found that the claims of ineffective assistance of counsel and prosecutorial misconduct did not require reversal of the conviction. No judges dissented.

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F-2018-923

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **PHILIP JAN CANNON,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-923** **FILED** **AUG 15 2019** **Clerk** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Philip Jan Cannon was tried by a jury in the District Court of Pottawatomie County, Case No. CF-2016-541, for Possession of Child Pornography, in violation of 21 O.S.2011, § 1021.2. The jury found Cannon guilty and assessed punishment at twenty years imprisonment and a $25,000.00 fine. The Honorable John Canavan, District Judge, who presided over Cannon's trial, sentenced him according to the jury's verdict. Cannon appeals, raising the issue of whether improper closing remarks by the prosecutor deprived him of a fair trial. Under 21 O.S.Supp.2015, § 13.1, Cannon must serve 85% of his sentence before he is eligible for parole consideration. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. Cannon complains of prosecutorial misconduct, arguing it deprived him of his right to a fair trial. Because the comments at issue were not objected to at trial, our review is for plain error only. *Harney v. State*, 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. To qualify for relief based on plain error, Cannon must demonstrate: (1) the existence of an actual error (a deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning it impacted the trial's outcome. *Hogan v. State*, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court only corrects plain error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings or represents a miscarriage of justice. *Stewart v. State*, 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514. We evaluate alleged misconduct in the context of the entire trial, considering not only the propriety of the prosecutor's actions but also the strength of the evidence against Cannon and the arguments of defense counsel. Both parties have broad latitude to discuss the evidence and make reasonable inferences. Relief is granted only where the prosecutor's flagrant misconduct has so tainted the trial that it is rendered fundamentally unfair. *Jones v. State*, 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998. It is rare that prosecutorial misconduct in closing argument necessitates reversal. *Pryor v. State*, 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722. Cannon alleges the prosecutor argued facts not in evidence and appealed to the jury's sympathy for the victims. However, we find there was no plain error in these remarks. Therefore, this claim is denied. **DECISION** The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY** **THE HONORABLE JOHN CANAVAN, DISTRICT JUDGE** **APPEARANCES AT TRIAL** **ADAM BANNER** **DUSTIN PHILLIPS** **COUNSEL FOR APPELLANT** 1900 N.W. Expressway, P.O. Box 926 Suite 601 Norman, OK 73070 **APPEARANCES ON APPEAL** **ROBERT W. JACKSON** **COUNSEL FOR DEFENDANT** Oklahoma City, OK 73118 **ADAM PANTER** **COUNSEL FOR STATE** **MIKE HUNTER** Pottawatomie County Attorney General of Oklahoma 331 N. Broadway Shawnee, OK 74801 **DIANE L. SLAYTON** Assistant Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 **OPINION BY:** ROWLAND, J. **LUMPKIN, P.J.:** Concur **LEWIS, V.P.J.:** Concur **HUDSON, J.:** Concur **KUEHN, J.:** Concur [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-923_1734954802.pdf)

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F-2018-485

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In OCCA case No. F-2018-485, Scott Thomas Stout appealed his conviction for First Degree Rape and Sexual Battery. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Scott Thomas Stout was found guilty by a jury in Kay County for forcing himself on a long-time friend and for sexual battery. The jury did not find him guilty of two other charges of Rape by Instrumentation. The judge sentenced him to twenty years for the rape charge and four years for the sexual battery charge, which he must serve consecutively. Furthermore, he must serve at least 85% of his sentence before being considered for parole. Stout raised two main points in his appeal. First, he argued that the prosecutor acted improperly and that these actions denied him a fair trial. Second, he claimed that the trial court made a mistake by allowing the prosecution to call a witness in the middle of his defense to present evidence. In the first point, Stout pointed out three specific issues with the prosecutor's conduct. He said the prosecutor tried to make the jury feel sorry for the victim, asked questions that seemed to give opinions on the victim's credibility, and used first names for witnesses inappropriately. The court looked at all of the evidence and determined that these actions did not distract from the overall fairness of the trial. The jury acquitted Stout on two of the charges and recommended lighter sentences for the others. Therefore, the court ruled that Stout did not experience unfairness due to prosecutorial misconduct. Regarding the second point in his appeal, Stout argued that it was wrong for the prosecutor to cause the defense to stop its case to bring in a detective to verify some evidence. The court noted that the prosecutor's interruption was related to a question raised by Stout's own lawyer and that the trial judge had acted fairly in allowing it. The judge ruled that this did not disrupt the trial's fairness. In conclusion, the court found no errors in how the trial was conducted and affirmed Stout's conviction, meaning the original decision stood.

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F-2018-350

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In OCCA case No. F-2018-350, Jonathan Brent Buccino appealed his conviction for three counts of embezzlement. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Jonathan was found guilty in a trial where the judge decided the case without a jury. He was accused of taking money from an investment, which he was supposed to use for software development, but instead, he used the money for other purposes. The judge gave him five years in prison for each count, but these sentences were suspended, meaning he wouldn’t go to prison right away, if at all. During his appeal, Jonathan claimed that the evidence against him was not strong enough to prove he committed a crime. He argued that the only proof was what people said in their testimony, not any written documents. He believed that this meant the state did not meet its obligation to show he was guilty beyond a reasonable doubt. The court explained that when figuring out if there was enough evidence for a conviction, they look at it in a way that favors the state. This means they assume the evidence presented was correct and that the jury found the witnesses believable. Even if there were different opinions, the judge made the final call on what was credible. The court found that Jonathan was only allowed to use the invested money for software development, and the state showed he used it elsewhere, which was enough to prove he was guilty. In his second claim, Jonathan argued that the “Statute of Frauds” should have applied to his case. He thought that this statute meant any agreement needed to be in writing if it couldn’t be completed within a year, and since he didn’t have a written agreement, his case shouldn’t have been criminal. The court explained that embezzlement doesn’t need a contract, and whether or not there was a written agreement was not important. The crime was based on his actions, not on whether a written contract existed. The court also noted that the decision to bring a criminal case was the district attorney’s responsibility and that the evidence provided was enough to charge him with a crime, regardless of whether he might have been open to a civil case as well. In conclusion, the court affirmed Jonathan’s conviction, meaning they agreed with the original decision of the trial court.

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F-2017-1149

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In OCCA case No. F-2017-1149, Moore appealed his conviction for Permitting Invitees Under 21 to Possess or Consume Alcohol, Child Neglect, and Transporting a Loaded Firearm in a Motor Vehicle. In an unpublished decision, the court decided to affirm the judgment and sentence imposed by the district court. One judge dissented. Moore was convicted for crimes related to a party where a fifteen-year-old boy named N.F. drank too much alcohol and died from alcohol poisoning. The party took place at the home of a sixteen-year-old friend, and although Moore was not there, the court had to decide if he was responsible for what happened because he was in a relationship with the boy's mother, who lived at that house. The first major point in the case was whether there was enough evidence to support Moore’s convictions. The court found that there was, especially because Moore admitted he lived with the mother and his driver's license listed that address. This was important as the law stated that he could be held responsible for underage drinking and neglect if he was living there. Moore also argued that he didn’t get a fair trial because his lawyer did not do a good job. He mentioned that his lawyer failed to object to certain testimonies from a worker in child protective services. The court looked into this claim but concluded that it didn’t affect the fairness of the trial enough to change the outcome. They thought that defense counsel did present evidence to support Moore's case, showing he may not have lived at the home when N.F. died. Another issue was about evidence presented during the trial. Moore’s lawyer did not object to the testimony from the child protective services worker, which led to the question of whether this testimony hurt his case. The court found that while this testimony might have been improper, it did not significantly affect the trial's result since the jury could have made their decision based on other evidence presented. Moore also claimed he should get credit for the time spent in jail before his sentencing. However, the court said it was up to the judge to decide about giving credit for time served, not mandatory. They believed the judge made the right choice and affirmed the decision. In conclusion, the court upheld Moore's convictions and sentences, affirming that there was enough evidence against him and that his rights to a fair trial were not violated. Moore was denied the motion to have a hearing about his lawyer's effectiveness in defending him.

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F-2017-1127

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In OCCA case No. F-2017-1127, Jones appealed his conviction for robbery, kidnapping, and possession of a firearm after a previous felony. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. Jones was found guilty of robbing someone with a dangerous weapon, kidnapping, and having a gun after a felony conviction. He was sentenced to serve many years in prison for these crimes. Jones argued several points in his appeal. He believed it was wrong for him to stand trial for the gun possession charge when the earlier ruling had dismissed that part of his case. The court found that the process used to bring that charge back was okay. Jones also thought that statements he made after being arrested should not have been allowed in trial because he was scared and did not have a lawyer present. However, since he did not say this during the trial, the court looked at it carefully but decided it did not affect the trial in a serious way. Jones requested a special instruction for the jury about flight, meaning that if someone runs away from a situation, it might mean they are guilty. The court denied this request because Jones denied being at the crime scene, so the flight instruction was not needed. Finally, Jones claimed that the prosecutor acted unfairly during the closing arguments. The court concluded that while some comments might not have been ideal, they did not make the trial unfair. All in all, Jones's appeal did not lead to a change in his conviction or sentence.

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F-2017-710

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In OCCA case No. F-2017-710, Alex Moore appealed his conviction for Murder in the First Degree. In a published decision, the court decided to affirm his conviction. One judge dissented. Alex Moore was accused of killing his cellmate, Todd Bush, in a prison. On the evening of March 6, 2014, while they were locked in their cell, an officer checked on them but did not enter the cell. Later, another officer found Moore with Bush on the floor and called for medical help. Despite efforts from medical staff, Bush was pronounced dead at the hospital. Moore claimed Bush had fallen while drinking, but the investigation revealed signs of a struggle and injuries that suggested he had been attacked. The medical examiner determined that Bush died from strangulation and that the injuries were not consistent with a fall. During the trial, the prosecution introduced evidence of Moore's previous assaults on other inmates as part of their case, arguing that these incidents showed he had a pattern of violent behavior. The defense argued that Bush's death could have been accidental. The trial court allowed photographs of the victim's injuries to be presented as evidence, despite Moore's objection that they were too gruesome. The court ruled that these images were relevant to the evidence and helped to prove how Bush died. Moore also raised concerns about the prosecution's statements during jury selection and whether he had been informed of his right to testify. The court ruled that the prosecutor's comments were within proper bounds and that there was no requirement for a formal acknowledgment of Moore's right to testify. Overall, the appeals court found no legal errors significant enough to reverse the trial court's decision, affirming Moore's conviction for murder.

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RE-2018-155

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **VESTER VON DOWNUM,** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-155** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MAY 23, 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On June 15, 2015, Appellant Vester Von Downum, represented by counsel, was convicted of Planning/Conspiring/Endeavoring to Perform an Act of Violence in Muskogee County, Case No. CF-2014-656. He was sentenced to ten (10) years, with all but the first two (2) years suspended, subject to rules and conditions of probation. On December 6, 2017, the State filed an Application to Revoke Downum's suspended sentence, alleging he violated the terms of probation by violating a protective order issued in PO-2014-218. At the hearing on February 7, 2018, the District Court of Muskogee County, presided by the Honorable Norman D. Thygesen, revoked the remainder of Downum's suspended sentence. Downum now appeals, presenting the following propositions of error: 1. The State failed to prove by a preponderance of the evidence that Mr. Downum violated the terms of his probation by committing the new crime of violating a protective order; 2. The order of revocation is excessive based on the circumstances; 3. There exists a clerical error in the order revoking the suspended sentence that should be corrected by an order nunc pro tunc. **DECISION:** The revocation of Downum's suspended sentence is AFFIRMED. The scope of review in revocation appeals is limited to the validity of the revocation order. We examine the factual determination and consider whether the court abused its discretion. The trial court's findings will not be disturbed on appeal if there is evidence reasonably supporting them. Downum alleges the State did not prove he violated the protective order. In probation revocations, the State must prove violations by a preponderance of the evidence, and conflicting testimony was presented at the revocation hearing. The victim, T.H., claimed Downum contacted her on Facebook shortly after his release, which she found threatening due to their history. Downum testified the contact was accidental. Given the conflicting evidence, the court found sufficient grounds to support the violation, and we find no abuse of discretion in the decision to revoke Downum's sentence. As to Downum's claim of excessive punishment, we note that violation of even one condition of probation justifies full revocation, especially in this case where the violation occurred less than two weeks after his release. Regarding the clerical error in the Judgment filed February 9, 2018, it correctly reflects the need for a nunc pro tunc order to clarify that Downum was found guilty after a jury trial and not via a guilty plea. **CONCLUSION:** The order of the District Court of Muskogee County revoking Downum's suspended sentence in Case No. CF-2014-656 is AFFIRMED. The matter is REMANDED for entry of an order nunc pro tunc to correct the clerical error. **OPINION BY: LEWIS, P.J.:** **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **[Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-155_1734703626.pdf)**

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F-2018-120

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In OCCA case No. F-2018-120, Shelton appealed his conviction for Human Trafficking for Commercial Sex. In an unpublished decision, the court decided to affirm the conviction and sentence. No one dissented. Shelton was found guilty of coercing a young woman to engage in prostitution. The jury sentenced him to thirty years in prison, which he must serve at least 85% of before he can be considered for parole. Shelton raised issues claiming that the trial court made several errors that affected his right to a fair trial. First, he argued that the court should have given a different definition for human trafficking. However, since he did not ask for a specific instruction during the trial, the court looked for any major mistakes. They decided that the instruction provided was accurate and that giving a different definition would have confused the jury more than it helped. Second, Shelton argued that there was not enough evidence against him to support the conviction. The victim testified that she was recruited by him, provided with clothing and drugs, and he took away the money she earned. The court found that the evidence clearly supported the jury's determination that Shelton coerced her, even though she was not physically forced to work. Third, a concern was raised about an instruction given by the trial court that explained consent was not a defense in this case. The court ruled that this instruction was correct and did not unfairly shift the burden of proof to Shelton. Finally, Shelton claimed he was unable to present a full defense because the trial court did not let him ask if the victim had engaged in prostitution before meeting him. The court decided that this question was not relevant, as the victim had already shared enough information about her background and that it did not show any reason for her to lie about Shelton. In conclusion, the court firmly upheld the conviction, showing that the trial was fair and that evidence supported the jury’s decision.

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M-2018-212

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**COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Rodney Eugene Smith, Appellant,** **v.** **The State of Oklahoma, Appellee.** **Case No. M-2018-212** **Filed May 9, 2019** **Summary Opinion** **Presiding Judge: Lewis** **Judgment and Sentence Affirmed** **Facts:** Rodney Eugene Smith appeals his conviction for Domestic Assault and Battery, a misdemeanor. The incident occurred on May 29, 2017, when Alexis Perkins alleged that Smith struck her. Witness Bridgett Downum testified to witnessing Smith slap Perkins during a heated argument at Downum's residence. The jury convicted Smith, resulting in a one-year county jail sentence and a $5,000.00 fine. **Propositions of Error:** 1. **Insufficient Evidence of Dating Relationship:** Smith argues that the State failed to prove he was in a dating relationship with Perkins. The court found Perkins' testimony about their living and sexual relationship sufficient for a jury to reasonably conclude a dating relationship existed. 2. **Intent to Injury:** Smith contends the State did not prove he acted with intent to injure. The court found that his actions during the confrontation demonstrated sufficient intent to do harm, as viewed in light most favorable to the State. 3. **Failure to Instruct on Lesser Included Offense:** The court found no error in failing to instruct on simple assault and battery because the evidence supported the charge of domestic assault and battery. Smith's claims about the dating relationship were rejected. 4. **Self-Defense Instruction Denied:** The trial court did not abuse its discretion in refusing Smith's self-defense instructions, as the evidence did not support his claim of self-defense. 5. **Jury Instructions on Specific Crime:** Smith's claim that the jury instructions were improper was denied as he did not object at trial, and the instructions sufficiently defined the offense. 6. **Insufficient Information:** The court ruled the Information provided adequate notice to Smith regarding the charges against him, as it included essential details about the crime. 7. **Cumulative Prosecutorial Misconduct:** Smith's claims of prosecutorial misconduct were rejected as the comments did not fundamentally undermine his trial's fairness. 8. **Improper Lay Opinion Testimony:** Downum's opinion testimony was not objected to at trial and, assuming it was improper, did not constitute plain error. 9. **Ineffective Assistance of Counsel:** Smith's trial counsel's performance did not result in prejudice, and he failed to show how the outcome would have differed had the objections been raised. 10. **Cumulative Errors:** The cumulative nature of alleged errors did not affect the trial outcome, and therefore, no relief is warranted. **Conclusion:** The court affirmed the judgment and sentence, concluding that Smith received a fair trial despite the raised propositions. **Opinion by: Lewis, P.J.** **Concurrences:** Kuehn, V.P.J.; Lumpkin, J.; Hudson, J.; Rowland, J.

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F-2017-1240

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In OCCA case No. F-2017-1240, Kevin Eugene Fowler appealed his conviction for five counts of Child Neglect. In an unpublished decision, the court decided to affirm his convictions and sentences. One judge dissented. Kevin Eugene Fowler was found guilty by a jury of neglecting his children, which included not providing them enough food and medical care. The jury recommended that he be sentenced to 30 years in prison for four of the counts and 10 years for the last count, with all sentences to be served one after the other, totaling 130 years. Fowler was required to serve 85% of his sentences before being eligible for parole. Fowler raised several points during his appeal, arguing that there were issues with how evidence was presented in court. He claimed that comments made by a police officer were unfair and that he did not receive a fair trial because of them. However, the court found that these comments were relevant and did not harm his case. Fowler also argued that he was wrongly punished multiple times for the same actions regarding his children, but the court ruled that his separate actions of failing to provide food and medical care could be treated as different crimes. He accused the State of misconduct during the trial, but the court concluded that the comments made were either allowed within the context of the trial or did not unfairly influence the jury. Another point raised was about his attorney not doing a good job. Fowler claimed his lawyer failed to object to improper arguments and was not sufficiently prepared. The court found that his lawyer's actions were not deficient and that there was no actual conflict of interest in defending both him and his co-defendant. Fowler believed that his lengthy sentences were excessive. Yet, the court determined that the sentences fell within the legal limits, and the trial judge had considered all relevant facts before deciding to make the sentences consecutive. Lastly, Fowler argued that all these issues combined made it impossible for him to get a fair trial, but since the court did not find any individual errors significant, they ruled against this claim as well. Overall, the court affirmed Fowler's multiple convictions and sentences, concluding that no errors were made that would warrant a new trial or a change in sentencing.

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F-2017-1191

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In OCCA case No. F-2017-1191, Leroy Edward Gilbert, Jr. appealed his conviction for First Degree Murder. In an unpublished decision, the court decided to affirm the conviction. One justice dissented. The case involved the murder of Erma Jean Goodou, who was killed in 1994. For many years, the murderer remained unknown. Goodou was found dead in her home, showing signs of a violent struggle. There were indications that someone entered through a window, attacked her, and fled. Despite extensive investigation, her murder stayed unsolved for almost twenty years. In 2013, some of the evidence was retested, which produced DNA that identified Gilbert as the suspect. He had previously denied knowing Goodou despite having been a high school acquaintance. His fingerprints were also found at the crime scene. During the trial, Gilbert testified, claiming they had a secret relationship and tried to explain the presence of his DNA and prints, but the evidence was compelling against him. Appellant's arguments in the appeal included claims of improper jury instructions regarding the 85% Rule, prosecutorial misconduct, and ineffective assistance of counsel. The court found that while there were errors in jury instructions, specifically about the 85% Rule not being applicable to his case, these did not affect his substantial rights or the outcome. The comments made by the prosecutor during the trial were also deemed not to have harmed Gilbert's defense. Ultimately, despite a dissenting opinion regarding the impact of those errors, the court upheld the trial's decision, maintaining Gilbert's conviction for First Degree Murder and sentencing him to life without the possibility of parole.

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F-2017-1140

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In OCCA case No. F-2017-1140, Michael Harold Denham appealed his conviction for Domestic Assault and Battery by Strangulation. In an unpublished decision, the court decided to affirm his conviction and sentence. One judge dissented. Michael Harold Denham was found guilty of a crime related to domestic abuse. The jury, which is a group of people that decides if someone is guilty or not, recommended that he be sentenced to three years in prison. The judge who oversaw the trial followed this recommendation and also ordered that Denham pay some fees and receive credit for the time he had already spent in jail before the trial. Denham's appeal claimed that several mistakes had occurred during his trial. He listed five main points where he believed the trial had not been fair: 1. The trial court allowed the state to have an expert witness testify about domestic abuse. Denham argued that this was a mistake. 2. He said that one of the witnesses who testified about domestic violence was not properly qualified to do so. 3. Denham claimed that some evidence was admitted that should not have been according to the rules of evidence. 4. He argued that the court did not let his defense team ask questions about one juror, which meant they could not see if the juror was biased. 5. Finally, he said that all these mistakes happened together and made the whole trial unfair. The court looked closely at Denham's claims and the evidence from the trial. They decided that the court did not make errors that were significant enough to change the outcome of the trial. For the first point about the expert witness, the court ruled that Denham did not show why his defense would have benefited from having his own expert witness. His claim of needing a continuance (more time) to prepare for the trial was not justified because he could not show how it would have helped his case. For the second point, the court decided that the qualifications of the expert witness were acceptable. The judge found that the officer had enough training and experience in domestic violence matters to testify. Regarding the third point, Denham did not follow the right procedure to complain about the late disclosure of the expert witness. As a result, the court found no major violations that would affect the trial's fairness. For the fourth point, the court reviewed how the trial judge handled questions for the jurors. They found that the process was fair because the juror had given no indication beforehand that she would be biased. Lastly, for the fifth point about the overall fairness of the trial, the court did not agree that the combined claims could show any level of unfairness. They found no cumulative error that would merit a different outcome. In conclusion, the court upheld Denham's conviction, deciding that he received a fair trial and that the claims of error did not have enough merit to change the verdict. The appeal was denied, and the conviction was confirmed, meaning Denham would serve his sentence as decided by the jury.

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F-2017-1189

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In OCCA case No. F-2017-1189, Lawrence Raymond Silver, Jr. appealed his conviction for Solicitation for First Degree Murder. In a published decision, the court decided to affirm the judgment and sentence from the district court. One judge dissented. The case started when Silver was tried and found guilty of trying to get someone to commit murder. The jury decided he should go to prison for thirty-seven years. During the trial, Silver raised several issues on appeal. First, he argued that the prosecutor said some unfair things that hurt his chances for a fair trial. However, the court found that these comments were not serious enough to make the trial unfair, and there was no error. Silver also thought that he should not have received three years of supervision after leaving prison since the law said this only applied to specific crimes. The court agreed that there was an error, but the trial judge later fixed it, reducing the supervision time to nine months to a year. Because this was corrected, Silver did not need any more relief on this issue. Additionally, Silver claimed that his lawyer did not help him well enough during the trial. The court explained that to show his lawyer was ineffective, Silver needed to prove that if the lawyer had done better, the result of the trial would have been different. Since the court didn't find any of the previous claims valid, they decided that his lawyer's work couldn't be judged as ineffective. Finally, Silver said that even if no single issue mattered on its own, the overall mistakes during the trial combined to deny him a fair trial. The court ruled that without any valid individual mistakes, his claim for cumulative errors was groundless. In conclusion, the court upheld the original judgment and sentence against Silver, and his request for further testing of his lawyer's assistance was denied.

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F-2017-758

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In OCCA case No. F-2017-758, Shawn Conrad Freeman appealed his conviction for multiple serious crimes, including Kidnapping, Forcible Sodomy, Rape in the First Degree, and Robbery in the First Degree. In an unpublished decision, the court decided to affirm the judgment and sentence of the District Court. The court did, however, instruct the District Court to correct a clerical error regarding the fine for one of the robbery counts. Freeman was tried by jury and was found guilty on multiple counts involving four separate women. The jury sentenced him to long prison terms and significant fines. The trial court followed the jury's recommendations for sentencing. Freeman raised several arguments on appeal. He argued that having multiple convictions for crimes like Kidnapping, Rape, and Forcible Sodomy at once was unfair and violated laws against double punishment. However, the court found that the crimes were separate and showed that each act occurred at different times, meaning he could be punished for all of them. He also claimed that trying all fourteen counts together was wrong because it might have led the jury to convict him based on the total evidence rather than on proof for each individual charge. The court determined that the offenses were connected enough to be tried together and that no error occurred. Another point of contention was that one of the victims couldn't testify in court, and the jury was allowed to hear her previously recorded testimony instead. The court upheld this decision, stating that Freeman had previously had the chance to question her during an earlier hearing. Freeman argued that the evidence was not enough to support his robbery conviction. The court disagreed, stating that the evidence clearly showed he unlawfully took property from a victim. He raised questions about misconduct by the prosecutor, ineffective assistance of counsel, and that his sentences were too harsh. The court found no evidence to support his claims of improper actions or ineffective counsel. It ruled that his sentences were not excessively severe given the nature of the crimes he was convicted for. Finally, Freeman claimed that the combined issues during the trial denied him a fair trial. However, the court noted that it found no individual errors that would warrant a new trial. In conclusion, the court affirmed Freeman's convictions and sentences but ordered a correction to a minor error in the judgment regarding the fine imposed for one count of robbery. There was a dissenting opinion from one of the judges.

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F-2017-1030

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In OCCA case No. F-2017-1030, Polo Carrillo appealed his conviction for kidnapping, first-degree rape, assault and battery with a dangerous weapon, and domestic assault and battery in the presence of a minor. In an unpublished decision, the court decided to affirm his convictions and sentences. One judge dissented. Polo Carrillo was found guilty on several serious charges and sentenced to life imprisonment on three charges, with an additional year on the domestic assault charge. He raised several arguments on appeal, including issues with the evidence presented during his trial and concerns about whether he received a fair trial. One point of contention was the trial court's decision to allow a nurse to read a report during the trial that included what the victim had stated about the incident. Carrillo argued that this was hearsay and unnecessary since there was other testimony about the same information. The court determined that the nurse's statements were allowed because they related to medical treatment, which is an exception to hearsay rules. Another argument Carrillo made was about the court's ruling regarding the disclosure of certain witnesses' information. The trial court had allowed the victim's address to be withheld for safety reasons. The court pointed out that Carrillo was able to communicate with the victim without knowing her home address. Thus, the court concluded that the ruling did not harm his defense. Carrillo also claimed that photographs shown to the jury were redundant and biased against him, but the court found that these images were important in showing the victim's injuries and supported the testimony, so they were allowed. Further, Carrillo argued that the jury was not given the correct instructions regarding post-imprisonment supervision. The court indicated that the instructions given were generally proper since the jury couldn't recommend a sentence lower than two years, ruling that errors were not affecting the trial's outcome. At sentencing, there was an error in how Carrillo's time served was recorded. However, this was later corrected by the District Attorney’s office, making this issue no longer relevant. Finally, Carrillo claimed that even if individual errors in the trial did not deserve a new trial, the cumulative effect of these errors should. The court disagreed, stating that since there were no errors that warranted reversal, the cumulative error claim also failed. In summary, the court affirmed Carrillo's convictions, indicating that he did not suffer an unfair trial despite the various arguments he raised on appeal. The decision was backed by careful consideration of the law and the facts presented during the trial.

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RE-2017-706

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **THOMAS LYNN SPANN,** Appellant, **-VS-** **THE STATE OF OKLAHOMA,** Appellee. No. RE-2017-706 **FILED ** IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA NOV 8 2018 JOHN D. HADDEN, CLERK --- **SUMMARY OPINION** **HUDSON, JUDGE:** In the District Court of Stephens County, Case No. CF-2012-436A, Appellant, while represented by counsel, entered a plea of guilty to the offense of Cruelty to Animals. On October 10, 2013, in accordance with a plea agreement, the Honorable Joe H. Enos, District Judge, sentenced Appellant to a $1,000.00 fine and to five (5) years imprisonment, with all but the first one (1) year of that term conditionally suspended under written rules of probation. On October 20, 2016, the State filed a Motion to Revoke Suspended Sentence. The Motion alleged Appellant had violated his probation by: 1. Failing to provide verification of employment; 2. Being in $920.00 in arrears on supervision fees due to the Department of Corrections; 3. Failing to pay restitution of $152.44; 4. Failing to pay $75.00 per month beginning October 2015 towards costs, fines, and fees, resulting in arrears of $675.00. On November 10, 2016, the parties appeared before the Honorable Ken Graham, District Judge, regarding the Motion to Revoke. While represented by counsel, Appellant stipulated to the probation violations contained in that Motion. Further revocation proceedings regarding punishment were postponed for two months, allowing Appellant time to comply with his probation requirements. This period was later expanded twice, eventually leading to a hearing on June 22, 2017. At this June 22nd hearing, Appellant again appeared with counsel. The probation officer provided a Supplemental Report indicating that Appellant remained significantly delinquent in fulfilling payment obligations, although he had paid off the restitution. Additionally, the report noted that Appellant had not verified employment nor demonstrated compliance with job search requirements. There were also reports of unsigned traffic citations and evidence of an altered appointment slip presented by Appellant. After considering testimonies and evidence regarding Appellant's compliance, Judge Graham revoked Appellant's suspended sentence in full. Appellant now appeals that final order of revocation, asserting that the court denied due process and abused its discretion by revoking the remaining suspended sentence based on extra-application allegations. After careful review, we find no error warranting reversal. Appellant had stipulated to the probation violations, providing the State with the necessary grounds to prove the allegations. Consequently, the trial court had the authority to revoke the suspended sentence. Appellant failed to demonstrate significant compliance with probation requirements over an extended period, despite having opportunities to rectify the situation. The revocation order is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), MANDATE IS ORDERED ISSUED on the filing of this decision. --- **APPEARANCES AT TRIAL** **R. L. WILLIAMS** P.O. BOX 2095 LAWTON, OKLAHOMA 73502 ATTORNEY FOR DEFENDANT **GREG STEWARD** ASSISTANT DISTRICT ATTORNEY STEPHENS COUNTY COURTHOUSE 101 SOUTH 11TH STREET DUNCAN, OKLAHOMA 73533 ATTORNEY FOR STATE OF OKLA. --- **OPINION BY: HUDSON, J.** **LUMPKIN, P.J.: CONCUR** **LEWIS, V.P.J.: CONCUR** **KUEHN, J.: CONCUR IN RESULTS** **ROWLAND, J.: CONCUR** --- **KUEHN, JUDGE, CONCURRING IN RESULT:** I concur in the result. The trial court did not abuse its discretion in revoking Appellant's suspended sentence in full. Appellant stipulated to the Application to Revoke, making only the issue before the trial court whether to revoke the suspended sentence in part or in full. While Appellant used this opportunity to pay restitution, he failed to comply with the rest of the conditions. The trial court reasonably considered Appellant's interim behavior, given the evidence of continued violations, leading to the conclusion to revoke. The failure to make a determination regarding Appellant’s ability to pay was error, but not dispositive as Appellant had already stipulated to the original allegations. The trial court properly considered the evidence presented in mitigation when deciding the final revocation of the sentence.

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C-2017-1311

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In OCCA case No. C-2017-1311, Heath Justin Wright appealed his conviction for multiple charges, including Second Degree Burglary, Knowingly Concealing Stolen Property, and Unlawful Possession of a Controlled Dangerous Substance. In an unpublished decision, the court decided to grant relief to Wright, allowing him to withdraw his guilty plea and proceed to trial. One judge dissented. Wright entered a negotiated plea without legal counsel and was accepted into the Pontotoc County Drug Court program. His plea agreement stated that if he successfully completed the program, his charges would be dismissed. However, if he failed, he would receive a lengthy prison sentence for each charge. After the State sought to terminate him from the drug court program, Wright tried to withdraw his plea. The court denied his request and sentenced him to the agreed-upon prison terms. Wright claimed his attorney did not assist him properly. He argued that he was not warned about the risks of representing himself in court. The court found that this lack of advice affected his decision to plead guilty. Since it was clear that Wright’s attorney did not address this issue, the court decided he should be allowed to withdraw his plea and face trial for the charges. The ruling concluded that because the initial plea was handled improperly, Wright should get another chance to defend himself in court.

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F-2016-562

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In OCCA case No. F-2016-562, Kadrian Daniels appealed his conviction for Robbery with a Firearm and Possession of a Firearm After Former Conviction of a Felony. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court, except that the fine imposed on the Possession count was vacated. One judge dissented. Daniels was found guilty by a jury and received a thirty-year sentence for the robbery and an additional eight years and a $10,000 fine for the illegal firearm possession. Daniels raised several concerns on appeal. He argued that the trial court made mistakes that affected his right to a fair trial. First, Daniels objected to a question asked by the prosecutor to a detective about the number of robberies that happened in Tulsa during the past year. He felt that this question could alarm the jury. However, the court decided that the question was allowed because it was relevant to the case and didn’t unfairly sway the jury. Next, Daniels claimed that the prosecutor behaved improperly during the closing arguments, which made his trial unfair. Some of the comments made by the prosecutor were challenged, but the court ruled that those comments were acceptable and did not harm the fairness of the trial. Additionally, Daniels complained about the jury being instructed that a $10,000 fine was mandatory if they convicted him of the firearm charge. Since Daniels’ lawyer did not object to this instruction during the trial, the court reviewed this issue only for plain error. The court found that the instruction was incorrect because the law does not require such a fine. This error was significant enough that the court decided to remove the fine. Moreover, Daniels argued that his attorney did not provide effective help during the trial, especially for not calling out the errors made by the prosecution or the judge. The court considered this but concluded that the issues raised by Daniels were not serious enough to have changed the outcome of the trial. The final decision affirmed the conviction but removed the unnecessary fine, ensuring that the legal process remained fair despite the mistakes noted during the trial.

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M-2016-596

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In OCCA case No. M-2016-596, Lyndol Keith Nunley appealed his conviction for Domestic Abuse - Assault and Battery. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. The case began with a non-jury trial in which Nunley was found guilty of committing domestic abuse against someone he knew. The judge sentenced Nunley to pay a fine and to spend time in county jail. Initially, he was required to serve his jail time day for day, meaning he would serve the full year without any reductions. However, this requirement was later changed. Nunley appealed for three main reasons. First, he claimed his lawyer did not do a good job because there was no record of what happened during the trial, which made it hard for him to appeal. The court explained that to prove a lawyer was ineffective, a person must show how this caused them harm. Since Nunley did not give enough proof or show that any errors happened during the trial, his claim was not accepted. Second, Nunley argued that his sentence was too harsh. He believed the day for day term made his punishment excessive. However, since that requirement was removed after he filed his appeal, this argument was no longer valid. Lastly, Nunley pointed out that he received the maximum penalty allowed by law. The court noted that while it did impose the maximum jail time, his fine was much lower than what he could have received. The judges decided that Nunley did not show that his sentence was shocking or unfair, so they rejected his request to change it. In the end, the judges upheld the decision made in the lower court, meaning Nunley had to serve his sentence as it was decided.

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RE-2015-922

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In OCCA case No. RE-2015-922, Palmer appealed his conviction for perjury. In an unpublished decision, the court decided to affirm the revocation of Palmer's suspended sentences. One judge dissented. Palmer had previously received a deferred sentence for a case in 2010. In 2015, he pleaded no contest to a perjury charge and got another suspended sentence that he was serving at the same time as the first one. Later, the State of Oklahoma filed to revoke his suspended sentences, claiming he had violated probation by not reporting, not paying court costs, and not completing a required program. They also added new charges of kidnapping and assault. During the revocation hearing, Palmer was removed from the courtroom because he was disruptive. He interrupted the judge repeatedly and was warned to stop, but he did not listen. The court found that because he was behaving disruptively, his absence from the hearing did not make the process unfair. Palmer also claimed that he wanted to represent himself but was forced to have a lawyer. The court determined he had not made any formal request to represent himself, so this claim was rejected. Additionally, Palmer argued that the court did not explain why his sentences were revoked. However, the court noted that there is no requirement to provide detailed reasons at a revocation hearing. Palmer's failure to follow even one condition of his probation was enough to justify the revocation of his sentences. Finally, Palmer thought the judge did not have the power to impose supervision following his imprisonment. However, the court found this issue was already resolved and was therefore moot. The court's overall ruling was to confirm that Palmer's suspended sentences were revoked, maintaining that proper procedures were followed during the revocation hearing.

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S-2016-332

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In OCCA case No. S-2016-332, the defendants appealed their conviction for conspiracy to deliver a narcotic controlled dangerous substance and first degree murder. In a published decision, the court decided to affirm the lower court's ruling, which indicated that the defendants were not part of the conspiracy at the time of the victim's death. One judge dissented. The case began when a grand jury accused several people, including the defendants, of being involved in a conspiracy to sell drugs, which ultimately led to the death of Jennifer McNulty. She died from an overdose of oxycodone. After a preliminary hearing, a judge decided that two defendants, Miers and Gregoire, should not be charged with murder because they had withdrawn from the conspiracy before McNulty’s death. The state did not agree with this decision and appealed. They argued that the judge made a mistake in saying Miers and Gregoire had ended their part in the conspiracy. However, the court reviewed the evidence and found that both defendants had indeed separated themselves from the drug conspiracy before the incident occurred, so they couldn’t be held responsible for the murder. The court confirmed that Gregoire was removed from the drug operation because of her problems with addiction, causing others not to want her in the conspiracy anymore. Also, Miers had moved to another state and had stopped working with the main person involved in drug sales before the death happened. After considering everything, the court decided that the earlier ruling was fair and didn't show an abuse of discretion. In conclusion, the court affirmed that Miers and Gregoire could not be charged with first degree murder because they had taken themselves out of the conspiracy before the victim's death. The dissenting judge felt that the court made an error and that the defendants should still face charges.

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F-2015-531

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In OCCA case No. F-2015-53, Dennis Ray Runnels appealed his conviction for Unlawful Distribution of Controlled Dangerous Substance (Methamphetamine). In a published decision, the court decided to affirm the conviction but modify the sentence. One judge dissented. Runnels was convicted after a jury trial, where he was found guilty of distributing meth. The trial court sentenced him to 19 years imprisonment, with one year of post-imprisonment supervision, and ordered him to pay a fee for a court-appointed attorney and other costs. Runnels raised several issues in his appeal. First, he claimed that the state did not show a complete chain of custody for the meth. The court found that there was enough evidence for the jury to decide that Runnels was guilty beyond a reasonable doubt. The court also determined that Runnels had not shown any plain error regarding this issue. Second, Runnels argued that the state did not provide enough evidence to support his conviction. However, the court ruled there was sufficient evidence, including testimony and recordings from a controlled buy, for the jury to reach their conclusion. Third, he claimed the state failed to provide evidence that could have helped his case. He said the prosecutor did not correct a witness’s false testimony about prior convictions. The court found no wrongdoing by the state and ruled that Runnels had not shown how this affected the trial's outcome. In his fourth claim, Runnels argued that the jury was incorrectly instructed on punishment. The court agreed and found it was a plain error, which required modification of his sentence. Runnels also claimed the jury was led to think about probation and parole during the trial, but since the punishment was modified based on the previous claim, this point became moot. Regarding the claim that his sentence was excessive, the court agreed that it should be modified due to the instructional error and reduced it to 10 years with the same supervision and fees. Runnels also said his attorney was ineffective in several ways. However, the court found that these claims were moot because of the prior decision to modify his sentence. Lastly, Runnels asked the court to look at the overall errors during his trial to see if they denied him a fair outcome. The court determined that since they did not find any sustained errors, this request was denied. In conclusion, Runnels's conviction was upheld, but his sentence was reduced to 10 years in prison with supervision, and he will still pay the attorney fees and costs.

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M-2015-506

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In OCCA case No. M-2015-506, Bell appealed her conviction for Disorderly Conduct and Interfering or Obstructing by Disobeying a Lawful Command. In an unpublished decision, the court decided to reverse the convictions and instructed to dismiss the case. One judge dissented. Bell was arrested on September 21, 2014, after protesting against a Satanic Black Mass at the Oklahoma City Civic Center. She was initially charged with trespassing but this was changed to Disorderly Conduct and Interfering or Obstructing by Disobeying a Lawful Command. Bell had gone to the Civic Center to pray against the event and knelt to pray on public property. She refused to leave when asked by police officers and was arrested. During the trial, witnesses, including police officers, testified that she did not block any entrances, and the City could not prove that she had obstructed access as per the ordinance she was charged under. The court found there was not enough evidence to support the claims that Bell had violated the law concerning disorderly conduct and interfering with the police. The judge reviewing the case decided that Bell's actions, which were protected under the First Amendment, did not constitute criminal obstruction. Although there were differences in opinion among the judges, the majority felt there was a lack of legal basis for the charges.

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RE-2015-180

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In OCCA case No. RE-2015-180, the appellant appealed his conviction for two counts of Rape in the First Degree. In an unpublished decision, the court decided to reverse the order revoking his suspended sentence. One judge dissented. Here's a summary of the case: The appellant, after pleading guilty to Rape in the First Degree, was sentenced to twelve years in prison, which was suspended under certain conditions, including registering as a sex offender. Later, the State alleged that the appellant violated his probation by committing a new crime in Michigan, specifically being a felon in possession of a firearm. When the appellant was brought back from Michigan, a hearing took place about whether he had indeed violated his probation. During this hearing, the State presented various documents and testimony to support their claims, but these did not meet the legal requirements. They had included some documents from Michigan that were not certified and did not prove that a final judgment had been made regarding the alleged new crime. The court found that the State did not provide enough competent evidence to support their claim that the appellant had committed a new crime. The judges noted that the State must strictly prove a new offense for revocation of a suspended sentence. Since the State did not prove that the judgment from Michigan was final, the court agreed that there was an error. As a result, the court reversed the revocation order and sent the case back for further actions as needed. The court did not need to consider the other issues raised since the lack of evidence was sufficient to decide the appeal in favor of the appellant.

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