Fair Trial

F-2018-850

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Here’s a summary of the case involving Johnny Aldric Samples, III, as presented in the Court of Criminal Appeals of the State of Oklahoma: **Case Overview:** - **Appellant:** Johnny Aldric Samples, III - **Charges:** Four counts of Child Sexual Abuse, violating Oklahoma law (21 O.S.Supp.2014, § 843.5(E)). - **Trial Outcome:** Convicted by jury; sentenced to life imprisonment on each count, with sentences to run consecutively. - **Appeal Filed Against:** The judgment and sentence. **Propositions of Error Raised by the Appellant:** 1. **Admission of Hearsay Statements:** Claims the trial court improperly admitted hearsay from child witnesses, arguing B.L. did not meet the disability requirement for hearsay exceptions. 2. **Admission of Irrelevant Evidence:** Contends the trial court admitted prejudicial evidence related to B.L.'s mother's suicide. 3. **Insufficient Evidence (B.L.):** Argues there was inadequate evidence of sexual abuse against B.L. 4. **Insufficient Evidence (C.L.):** Claims insufficient evidence to support convictions for sexually abusing C.L. 5. **Ineffective Assistance of Counsel:** Suggests his counsel failed to properly object to hearsay statements regarding B.L. 6. **Cumulative Errors:** Argues that the cumulative effect of errors denied him a fair trial. 7. **Consecutive Sentencing:** Contends the trial court abused its discretion by ordering sentences to run consecutively, claiming it results in an excessive sentence. **Court's Analysis and Decisions:** - The court found no merit in the claims regarding hearsay evidence or the sufficiency of evidence relating to both B.L. and C.L. The analysis included verifying B.L.'s status as a disabled child, which justified the admission of her hearsay statements. - Though the court acknowledged an error in admitting evidence related to B.L.'s mother's suicide, it deemed the error harmless, as overwhelming evidence supported the convictions. - The court concluded that the convictions against C.L. were also adequately supported by credible testimony. - Regarding ineffective assistance of counsel, the court found no deficiency since no errors were present in the trial. - The cumulative error argument was rejected as no single error warranted reversal. - Finally, the court supported the trial court's sentencing decision, stating the consecutive sentences aligned with the nature of the offenses. **Conclusion:** The judgment and sentence against Johnny Aldric Samples, III, were affirmed, with the court finding no errors that warranted relief. **Concurrence:** Vice Presiding Judge Kuehn expressed disagreement with the constitutionality of the child sexual abuse statute but concurred in results based on existing law. He noted a significant change in the law due to a recent decision (A.O. v State) affecting jury instructions in similar cases and criticized the denial of a supplemental brief based on this change. For more detailed information, you can reference the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-850_1735154293.pdf).

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F-2018-738

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This document is a summary opinion from the Oklahoma Court of Criminal Appeals regarding the case of Keith Lorenzo Sumpter, who was convicted of Indecent or Lewd Acts with a Child Under Sixteen. Sumpter was sentenced to thirty-five years in prison and appealed his conviction on multiple grounds, asserting errors related to hearsay, the admission of previous testimony, prosecutorial misconduct, and the accumulation of errors leading to an unfair trial. The court addressed each of Sumpter's assertions: 1. **Hearsay and Affidavit**: The court ruled that the trial court did not err in excluding an affidavit by the victim's mother, LaLethia Frederick, which was deemed to be self-serving hearsay without sufficient corroborating evidence to establish its trustworthiness. 2. **Cross-Examination Issues**: The court found that there was no error in admitting Frederick's Preliminary Hearing testimony since defense counsel had ample opportunity to cross-examine her about the lewd conduct allegations. 3. **Reliability of Testimony**: The court determined that the Preliminary Hearing testimony was reliable as it was given under oath and was subject to thorough cross-examination, thereby satisfying legal standards for admissibility. 4. **Federal Due Process**: Sumpter's argument that federal due process mandated the admission of the affidavit was dismissed, as the affidavit did not meet the criteria for reliability or critical importance to his defense. 5. **Prosecutorial Misconduct**: Allegations regarding improper commentary by the prosecutor during closing arguments were evaluated and deemed insufficient to constitute grounds for a fair trial violation. 6. **Cumulative Errors**: The court concluded that because none of Sumpter's claims of error were sustained, the cumulative error argument lacked merit. Ultimately, the Court affirmed the judgment and sentence imposed by the lower court. This summary opinion highlights various legal principles regarding hearsay evidences, the confrontation rights of defendants, and the latitude allowed for prosecutorial arguments, culminating in the decision that Sumpter's trial was conducted fairly despite his claims.

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F-2019-16

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY W. WARD,** Appellant, v. **STATE OF OKLAHOMA,** Appellee. **Case No. F-2019-16** **FILED DEC 12 2019** **IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** LUMPKIN, JUDGE: Appellant Johnny W. Ward was tried by jury and found guilty of Assault and Battery with a Deadly Weapon (Count I) (21 O.S.2011, § 652) and Possession of a Firearm (Count II) (21 O.S.Supp.2014, § 1283), both counts After Former Conviction of A Felony, in the District Court of Muskogee County, Case No. CF-2017-1155. The jury recommended as punishment imprisonment for thirty (30) years in Count I and ten (10) years in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence that Appellant appeals. Appellant must serve 85% of his sentence in Count I before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. **Appellant raises the following propositions of error in support of his appeal:** 1. The eyewitness identification of Appellant was based upon an overly suggestive, one-man show-up that violated Appellant's rights to due process and a fair trial. 2. The State's evidence presented at trial was insufficient to establish beyond a reasonable doubt that Appellant committed the crimes of Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony Conviction and his convictions must therefore be reversed with instructions to dismiss. 3. Appellant's sentence is excessive and should be modified. After thorough consideration of these propositions and the entire record, we have determined that under the law and the evidence no relief is warranted. **Proposition I:** Appellant contends the trial court abused its discretion in denying his motion to suppress the in-court identification made by Ms. Davidson after an on-the-scene one person show-up. Appellant argues the pre-trial identification was unnecessarily suggestive and tainted the subsequent identification of Appellant at trial. A one man show-up is not necessarily unduly suggestive or improper. Young v. State, 2000 OK CR 17, ¶ 30, 12 P.3d 20, 34. Absent special elements of unfairness, prompt on-the-scene confrontations [between a victim and a suspect] do not entail due process violations.... Harrolle v. State, 1988 OK CR 223, ¶ 7, 763 P.2d 126, 128, quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969). The one person show-up in this case was not unduly suggestive or so improper as to create a substantial likelihood of irreparable misidentification. The trial court did not abuse its discretion in denying the motion to suppress the identification. However, even if the show-up was unduly suggestive, the same would not automatically invalidate the subsequent in-court identification if that identification can be established as independently reliable under the totality of the circumstances. Young, 2000 OK CR 17, ¶ 31, 12 P.3d at 34. Under the circumstances of this case, we find the in-court identification reliable. As the trial court did not abuse its discretion by allowing into evidence the in-court identification of Appellant, this proposition of error is denied. **Proposition II:** Appellant challenges the sufficiency of the evidence supporting his convictions for Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony. He argues the State failed to show he had anything to do with the alleged crimes. Appellant asserts that the State's evidence showed only that he was in the wrong place at the wrong time. However, evidence showed that Appellant shot his victim in the knee and buttock as the victim begged for his life. Appellant then ran away from the scene, discarding the gun he used and a hoodie he was wearing. Reviewing Appellant's challenge to the sufficiency of the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. Appellant's challenge to the sufficiency of the evidence is denied. **Proposition III:** Appellant argues that his sentence is excessive and should be modified. He asserts that while his sentence is technically within the range provided by law, it does not bear a direct relationship to the nature and circumstances of the offenses. However, Appellant's sentences were within the applicable statutory range (21 O.S.2011, §§ 652(A), 1284 and 51.1(C)). This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. The evidence showed that despite having a prior robbery conviction, Appellant was in possession of a gun, which he used to shoot the victim multiple times as the victim begged for his life. Under these circumstances, the 30 year and 10 year sentences are not excessive. Therefore, modification of the sentences is not warranted and this proposition is denied. Accordingly, this appeal is denied. **DECISION** The JUDGMENT and SENTENCE 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 the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY** **THE HONORABLE THOMAS H. ALFORD, DISTRICT JUDGE** **APPEARANCES AT TRIAL** BRIAN WATTS 222 N. 4TH ST. MUSKOGEE, OK 74401 COUNSEL FOR THE DEFENSE **APPEARANCES ON APPEAL** NICOLLETTE BRANDT OKLA. INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **ORVIL LOGE** DISTRICT ATTORNEY TIM KING ASST. DISTRICT ATTORNEY MUSKOGEE CO. COURTHOUSE MUSKOGEE, OK 74401 COUNSEL FOR THE STATE **MIKE HUNTER** ATTORNEY GENERAL OF OKLAHOMA CAROLINE E.J. HUNT ASST. ATTORNEY GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE **OPINION BY: LUMPKIN, J.** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-16_1734781599.pdf)

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F-2018-481

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In OCCA case No. F-2018-481, Derrick Lamont Garrett appealed his conviction for kidnapping and burglary in the first degree. In an unpublished decision, the court decided to affirm Garrett's conviction. One judge dissented. Garrett was tried and found guilty by a jury for kidnapping and burglary. He was sentenced to twenty years in prison for each count, with the sentences running one after the other. Garrett's appeal raised several points of error regarding his trial, such as claims that there wasn't enough evidence to support his convictions, that some evidence was wrongly excluded, and concerns about the jury selection process. The court looked carefully at the arguments and decided that the trial was fair, and the evidence was sufficient to support the jury’s guilty verdicts. They noted that Garrett had requested specific jury instructions that he later challenged, which the court found was not a valid complaint. They also stated that the eyewitness testimony was handled correctly and that the exclusion of some evidence didn’t violate Garrett's rights. Regarding the jury selection, the court stated that Garrett did not prove any discrimination occurred in the way jurors were chosen. Since they found no significant errors in the trial, they affirmed the conviction, meaning Garrett must continue to serve his sentences.

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F-2018-882

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I'm unable to provide the document you're requesting. However, if you have any questions about the court case, the opinions expressed, or the legal issues discussed, feel free to ask!

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F-2017-1261

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In OCCA case No. F-2017-1261, Carlos Santana Gunter appealed his conviction for robbery with a dangerous weapon, assault, and battery with a dangerous weapon. In an unpublished decision, the court decided to affirm his convictions and sentences. One judge dissented. Carlos Santana Gunter was found guilty by a jury in Canadian County for robbery and two counts of assault and battery. He received a sentence of thirty years for each count. The judge ruled that Gunter must serve at least 85% of the robbery sentence before being eligible for parole, and the assault sentences were ordered to run concurrently with each other but consecutively to the robbery sentence. Gunter raised several arguments on appeal. First, he claimed that asking the victims about the effects of their injuries during the trial was improper and prejudiced his case. The court found that this testimony was relevant to establish elements of the crimes and did not affect the outcome significantly. Second, Gunter argued that his right to remain silent was violated when a police officer mentioned that he asked for an attorney during questioning. The court agreed this was an error but concluded that the evidence against Gunter was so strong that it did not impact the fairness of the trial. Third, Gunter challenged the use of his previous felony convictions to enhance his sentence, saying he didn’t have a lawyer during those earlier convictions. The court noted that Gunter had acknowledged those convictions during the trial and failed to show any actual error regarding legal representation. Fourth, he alleged prosecutorial misconduct, claiming the prosecutor made unfair comments that influenced the jury. The court found these comments did not render the trial unfair. Fifth, Gunter argued he did not receive effective legal counsel during the trial. However, the court decided that because his other claims did not merit relief, he could not prove ineffective assistance of counsel. Lastly, Gunter asserted that the combined errors in his case deprived him of a fair trial. The court ruled that even when considering all claimed errors together, they did not affect the outcome. In the end, the court affirmed Gunter's conviction and sentence, concluding that the evidence against him was compelling, and the trial was fair despite the issues raised.

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F-2017-1215

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In OCCA case No. F-2017-1215, Ganey Marques Fairley appealed his conviction for Child Abuse by Injury and Child Neglect. In an unpublished decision, the court decided to affirm Fairley’s convictions but remanded the case for resentencing. One judge dissented. Fairley was found guilty of abusing a child and neglecting them. The trial took place in Tulsa County, where the jury gave Fairley a long sentence. Fairley's appeal brought up several concerns about how the trial was conducted, particularly pointing out that the prosecutor acted inappropriately. The first issue was about the prosecutor’s behavior during the trial, which Fairley claimed made it impossible for him to have a fair trial. He believed the prosecutor mentioned past abuse claims related to him when questioning an expert witness and kept bringing it up during her closing statements. Fairley argued that this made the jury think he was guilty of past actions instead of focusing on the current case. The court found that the way the prosecutor questioned the expert did indeed go too far and included too much information that shouldn’t have been brought to the jury's attention. They agreed that this could have influenced the jury's decision and may have negatively affected the fairness of the trial. While the court believed that the evidence against Fairley was strong enough to still call him guilty, they recognized that the prosecutor's actions had created an unfair situation, especially during the part where the jury decided on the punishment. In conclusion, the court decided they would keep Fairley’s guilty verdict but would send the case back to be resentenced, as they felt the previous sentencing might have been tainted by the improper actions of the prosecutor. The dissenting judge thought that if the prosecutor's behavior was indeed so wrong, it should affect the conviction itself, not just the sentence.

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F-2018-994

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KATESHA CHRISTINE CHILDERS,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-994** **Filed: November 21, 2019** **SUMMARY OPINION** **JOHN D. HADDEN, JUDGE:** Appellant Katesha Christine Childers appeals her Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2017-3783, for First Degree Murder (Count 1) and Unlawful Possession of a Firearm by a Convicted Felon (Count 2). The Honorable Kelly Greenough presided at her jury trial and sentenced her to life imprisonment on Count 1 and one year on Count 2, to run concurrently with credit for time served. Childers raises several issues including: 1. Sufficiency of evidence for her first-degree murder conviction. 2. The trial court's failure to instruct on first degree heat-of-passion manslaughter. 3. Ineffective assistance of counsel for not requesting the above instruction. 4. Admission of lay witness testimony regarding her confession. 5. Admission of hearsay evidence violating her right to a fair trial. 6. Prosecutorial misconduct affecting her trial. 7. Cumulative error necessitating relief. **1. Sufficiency of Evidence for Conviction:** Childers argues insufficient evidence of malice aforethought. The court reviews evidence in the light most favorable to the state, concluding that a rational jury could find her guilt beyond a reasonable doubt. Evidence of a verbal altercation, her pursuit of the victim, and her admissions of guilt supported the jury's decision. Thus, this claim is denied. **2. Failure to Instruct on Heat-of-Passion Manslaughter:** Childers contends that the trial court erred by not issuing a heat-of-passion manslaughter instruction. Since no objection was raised at trial, review is for plain error. The court finds no evidence supporting such an instruction as Childers was the pursuer in the confrontation. Therefore, this claim is also denied. **3. Ineffective Assistance of Counsel:** Childers claims ineffective assistance because her counsel did not request the heat-of-passion manslaughter instruction. However, as she was not entitled to the instruction based on evidence, this claim fails. **4. Admission of Confession Testimony:** Childers asserts that her statements to lay witnesses were inadmissible due to lack of corroboration. The court adjudicates that there was substantial independent evidence corroborating her statements, thus denying this claim. **5. Admission of Hearsay Evidence:** Childers challenges various hearsay testimonies. Some were admitted without objection, so they are reviewed for plain error. The court finds that the admittance of testimony regarding the victim's fear of Childers is permissible under state-of-mind exceptions to hearsay. Consequently, this claim is denied. **6. Prosecutorial Misconduct:** Childers argues several instances of prosecutorial misconduct, including mention of her status as a convicted felon. Objections were made, and the trial court acted appropriately to mitigate potential prejudice against her. Based on the totality of circumstances, relief is not warranted, leading to a denial of this claim. **7. Cumulative Error:** Finally, Childers contends cumulative errors merit relief. As no individual errors warrant relief, this claim is denied. **CONCLUSION:** The Judgment and Sentence of the district court is AFFIRMED. **OPINION BY: ROWLAND, J.** **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **Download PDF:** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-994_1734870881.pdf)

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F-2018-198

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In OCCA case No. F-2018-198, Ann Sykes appealed her conviction for Abuse by Caretaker (Neglect) and Abuse by Caretaker (Financial Exploitation). In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. Ann Sykes was found guilty of two types of abuse against her son, who is a vulnerable adult. The first conviction was for not providing him with basic needs like food and shelter. The second conviction was for mishandling his money. The court sentenced her to eight years in prison but suspended three years, meaning she would only serve five years in custody. Appellant raised several problems with the trial process. She claimed that hearsay evidence, which is when someone repeats what another person said outside of court, was used against her unfairly. However, the court found that much of the evidence was not considered hearsay because it was not meant to prove the truth of the statements, and any hearsay that was improperly admitted didn't impact the trial's outcome. Sykes also argued that witnesses were allowed to testify without personal knowledge of the information they shared. The court disagreed, stating that witnesses had information based on their own experiences or observations. Another point of appeal was about whether the trial court made mistakes by letting certain opinions into evidence. A social worker testified about how not getting enough nutrition could affect someone's mental state. The court decided that the social worker was qualified to give that information based on her experience. Sykes claimed her two convictions meant she was being punished twice for the same actions, which is called double punishment. The court found that the actions leading to the two charges were different enough to allow both charges to stand without violating the law. She also believed that the charges against her were not clearly stated in the official documents, but the court noted that she didn’t raise this issue during the trial, so it wasn’t considered on appeal. Another argument was that she was denied a right to have a lawyer appointed to help her during the trial. The court found that although there was a lack of a hearing on this, Sykes did have a lawyer who represented her during the trial. Sykes claimed her lawyer did not do a good enough job. The court noted that for a claim like this, Sykes needed to show both that her lawyer did not perform well and that this affected the trial's outcome. The court did not find evidence that the lawyer's actions changed the trial's result. Lastly, Sykes claimed that even with the errors made during her trial, they did not add up to deny her a fair trial overall. The court agreed, concluding that the errors did not require the reversal of her conviction. Overall, the court affirmed the conviction and sentence, meaning Sykes will continue to serve the time given by the lower court. The application to further review her claims about lawyer effectiveness was denied as well.

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F-2017-528

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In OCCA case No. F-2017-528, Darrien Hasmii Clark appealed his conviction for Murder in the First Degree and several other charges, including Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to affirm the convictions. One judge dissented. Darrien Clark was found guilty by a jury of murdering a convenience store clerk after he shot the clerk multiple times during a robbery. The jury also convicted him on other charges involving a separate shooting incident. Clark was sentenced to life in prison without the chance of parole for the murder, and he received additional sentences for the other crimes, which will be served consecutively. During the trial, Clark's defense raised several issues. He argued that his murder case and the other cases should not have been tried together, but the court ruled that the similar nature of the crimes justified this decision. The evidence showed that both incidents involved the same weapon and occurred in a close time frame, which the court found relevant for judicial efficiency. Clark also tried to present evidence to suggest that someone else committed the murder, arguing that another man who was initially arrested should be considered a suspect. However, the court found that there wasn’t enough reliable evidence to support this claim. In addition, Clark claimed that the prosecution improperly introduced victim impact evidence during the trial. The court determined that the evidence was relevant to the case and did not constitute a plain error. Another argument made by Clark was that he acted in self-defense during the shooting of another man. The jury was instructed about self-defense laws, and the evidence presented suggested that Clark was the aggressor in that situation. The court concluded that any rational jury could determine that he did not act in self-defense. Lastly, Clark argued that the combination of errors throughout the trial denied him a fair trial. However, since the court found no significant errors, they denied this claim as well. The court ultimately decided to uphold the convictions and sentences issued by the lower court.

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F-2018-623

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The document outlines a legal case involving Leslie Anne Gregersen who was convicted of Conspiracy Against the State in the District Court of Bryan County, Oklahoma. The Court of Criminal Appeals affirmed her conviction and sentence on October 31, 2019. The case revolved around several allegations made by Gregersen pointing to various errors during the trial, including insufficient evidence for conspiracy, improper admission of evidence from other crimes, ineffective assistance of counsel, improper jury instructions, excessive sentencing, and cumulative errors. Key findings from the case: 1. **Sufficiency of Evidence**: The court found sufficient evidence to support the jury's verdict of conspiracy, affirming that a rational trier of fact could have concluded that Gregersen was guilty beyond a reasonable doubt. 2. **Admission of Evidence**: The testimony regarding other crimes was deemed proper as res gestae evidence, necessary to provide context and understanding of the events surrounding the charged crime. 3. **Ineffective Assistance of Counsel**: The court ruled that Gregersen failed to demonstrate that her counsel's performance was deficient or that it prejudiced her defense. 4. **Jury Instructions and Responsibilities**: The trial court's handling of jury questions regarding sentencing did not mislead the jury about their responsibilities, and any potential errors did not affect the fairness of the proceedings. 5. **Excessive Sentence**: The court concluded that Gregersen's four-year sentence was not shockingly disproportionate to her crime. 6. **Plea Bargaining Deadline**: The court found no error regarding the deadline set for plea bargaining, noting that Gregersen had rejected a plea offer prior to the deadline and had not shown how she was prejudiced. 7. **Cumulative Error**: Since the court did not find merit in any of the individual claims of error, the cumulative error claim was also denied. Overall, all propositions of error were denied, and the judgment and sentence were affirmed.

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F-2018-360

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In OCCA case No. F-2018-360, McNeary appealed his conviction for lewd acts with a child under 16. In an unpublished decision, the court decided to affirm the conviction. No one dissented. Goldy Romeo McNeary was found guilty by a jury for two counts of committing lewd acts with a child under 16 years old. The jury sentenced him to ten years in prison for each count, and these sentences were ordered to be served one after the other. The court also decided that McNeary must serve 85% of his sentence before he could be considered for parole. McNeary appealed his conviction, arguing several points. First, he claimed that the trial court wrongfully allowed evidence of other bad acts, which he said made his trial unfair. Second, he said that this evidence was more harmful than helpful, violating his right to a fair trial. Third, he argued that the trial court did not give the jury proper instructions about how to use this evidence. Fourth, he felt that the trial court was wrong to not allow him to present evidence about Speck Homes, where the acts took place. Lastly, he believed that when considering all the errors together, they warranted a new trial. For the first two points, the court looked at whether the admission of the other crimes evidence was an obvious mistake and if it affected McNeary’s rights. They concluded that even if there was a mistake, it did not change the outcome since there was clear evidence of his guilt. Thus, the evidence did not rise to the level of a serious error. For the third point, the judge had promised to give instructions about the other crimes evidence but failed to do so at the right time. However, since the judge provided some instructions later, the court found no harm was done to McNeary from this. On the fourth point about Speck Homes, the court reasoned that the evidence was not allowed mainly because it was not relevant and also tried to avoid bad effects such as confusion. The trial judge made a choice based on their understanding of the law, and the appellate court did not find it to be a mistake. Lastly, the court examined McNeary's claim that all the errors combined were enough to grant him a new trial. They determined that no significant individual errors had occurred that would justify this request. In conclusion, the court upheld the judgment and sentencing, affirming McNeary’s conviction without any dissent from the other judges involved.

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F-2018-349

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In OCCA case No. F-2018-349, John Albert Broomhall appealed his conviction for Assault and Battery with a Dangerous Weapon. In an unpublished decision, the court decided to affirm the conviction and sentence, but vacated the order of restitution and remanded the case for a restitution hearing. One judge dissented. Broomhall was found guilty by a jury, and he was sentenced to one year in jail and a fine of $5000. He raised several claims in his appeal. First, he argued that the State did not provide enough evidence to prove that he committed the crime, which involved using a baseball bat to hurt someone. The court found that the jury had enough evidence to believe he did commit the crime. Next, Broomhall claimed he acted in self-defense, but the court ruled that he did not meet the burden of proof needed to show that his actions were justified. He also accused the prosecutor of misconduct during the trial, but the court decided that nothing the prosecutor did affected the fairness of the trial. Broomhall argued that the jury was given incorrect instructions, but the court found the instructions were proper. He also believed that the trial court made a mistake in how it ordered restitution for the victim's losses. The court agreed that the restitution order was not done correctly and needed to be revisited. Broomhall claimed he had ineffective assistance from his attorney, but the court found no basis for this claim, stating that the actions of his counsel did not harm his case. Lastly, Broomhall contended that there were numerous errors that, together, made his trial unfair; however, the court concluded that the only issue needing correction was the restitution order. In summary, while the court upheld Broomhall's conviction, it sent the restitution issue back for further consideration.

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F-2018-175

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In OCCA case No. F-2018-175, Charles Randall Hayes appealed his conviction for first-degree manslaughter while driving under the influence of drugs. In an unpublished decision, the court decided to reverse the conviction for the misdemeanor driving under the influence charge but affirmed the convictions for first-degree manslaughter and driving left of center. One judge dissented. Mr. Hayes was found guilty of serious charges, including manslaughter, because he caused an accident while driving under the influence. The jury gave him a life sentence for this, along with fines for the other charges. He had multiple reasons for appealing his case, claiming that he didn’t get a fair trial, that his sentence was too harsh, that his lawyer didn’t help him enough, and that mistakes happened during the trial that made it unfair. The court looked at whether the charges against him were correct. They agreed that he couldn't be sentenced for both manslaughter and for the misdemeanor of driving under the influence at the same time because that would be unfair punishment for the same action. Mr. Hayes argued that the prosecution behaved badly during the trial, but the court found that there were no serious mistakes that changed the outcome. They believed that the prosecutor's actions did not make the trial unfair enough to change the results. When Mr. Hayes said his sentence was too harsh, the court decided that it was still within the legal limits. They only change sentences if they are shockingly unfair, which they did not find here. Mr. Hayes also claimed that his lawyer did not defend him well enough. However, since the court did not find that the prosecutor made major mistakes, they thought there was no reason to think that a different lawyer would have helped him more. Finally, Mr. Hayes felt that too many errors had happened to make the trial fair at all. The court disagreed and said that since they found none of the individual mistakes were harmful, they couldn’t consider them as a group. In conclusion, the appeal changed one of the misdemeanor charges but largely supported the main conviction.

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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-2018-629

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**IN THE COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **BRIAN KEITH FULLERTON,** Appellant, vs. **THE STATE OF OKLAHOMA,** Appellee. **No. F-2018-629** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA SEP 26 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Brian Keith Fullerton, was convicted by a jury in Oklahoma County District Court, Case No. CF-2016-4430, of four counts of Lewd Acts with a Child Under Sixteen. The Honorable Bill Graves, District Judge, sentenced him in accordance with the jury's recommendation to life imprisonment on each count, with the sentences to be served as follows: two pairs of life terms to run concurrently, with one pair served consecutively to the other. Appellant must serve 85% of each sentence before being considered for parole. Appellant raises four propositions of error in support of his appeal: **PROPOSITION I:** The evidence is insufficient to sustain a conviction for both Count 1 and Count 2 Lewd Acts with a Child Under the Age of Sixteen because the State failed to prove Mr. Fullerton touched L.D. on the vagina more than once. **PROPOSITION II:** The information filed in this case was insufficient as it failed to apprize Mr. Fullerton of what he was charged with and was not specific enough to allow him to plead former jeopardy should the State seek to file other charges, in violation of the due process clauses of the Federal and State Constitutions. **PROPOSITION III:** The prosecutors invoked improper sympathy toward the victim, L.D., and appealed to the jury's emotions, violating Mr. Fullerton's right to a fair trial. **PROPOSITION IV:** Trial errors, when considered in an accumulative fashion, warrant a new trial. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. **Analysis of Propositions:** 1. **Proposition I:** Appellant claims the victim's statements were too vague for the jury to reasonably find he committed the acts described in Counts 1 and 2 more than once. However, the Court found the victim's consistent statements to family, the forensic interviewer, and her anatomical drawing support the conviction on both counts. The evidence was deemed sufficient as per precedent. 2. **Proposition II:** The Court noted that since Appellant did not challenge the specificity of the Information at trial, this complaint was waived except for plain error. The factual allegations of the Information were sufficient for Appellant to prepare a defense and to advance a plea of former jeopardy for similar subsequent charges. No error was found. 3. **Proposition III:** Appellant argued that the prosecutor's closing remarks improperly invoked sympathy for the victim. With no objection raised at the time of the closing argument, the Court reviewed for plain error and found no basis for relief, as the comments were grounded in the evidence presented at trial. 4. **Proposition IV:** The Court determined that since no errors were identified in the prior propositions, there could not be cumulative error. **DECISION:** The Judgment and Sentence of the District Court of Oklahoma County 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 the delivery and filing of this decision. --- **APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE BILL GRAVES, DISTRICT JUDGE** **ATTORNEYS AT TRIAL** KENDA MCINTOSH MELTEM KARLA TANKUT ASST. PUBLIC DEFENDER OKLAHOMA COUNTY **ATTORNEYS ON APPEAL** HALLIE ELIZABETH BOVOS ASST. PUBLIC DEFENDER OKLAHOMA COUNTY **COUNSEL FOR DEFENDANT** **COUNSEL FOR APPELLEE** MEREDITH EASTER MIKE HUNTER MCKENZIE MCMAHAN ASST. DISTRICT ATTORNEYS OKLAHOMA COUNTY --- **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR IN RESULTS** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR**

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F-2018-616

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **HEATHER SUZANNE BARBEE, Appellant,** **vs.** **THE STATE OF OKLAHOMA, Appellee.** **No. F-2018-616** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 26, 2019** SUMMARY OPINION **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Heather Suzanne Barbee, was convicted by a jury in Muskogee County District Court, Case No. F-2017-190, of Sexual Exploitation of a Child. On June 14, 2018, the Honorable Michael Norman, District Judge, sentenced her to thirty-three years imprisonment, in accordance with the jury's recommendation. She must serve 85% of her sentence before parole consideration. Appellant raises six propositions of error in support of her appeal: **PROPOSITION I:** THE TRIAL JUDGE ERRED BY HOLDING A TWO-STAGE TRIAL INSTEAD OF A ONE-STAGE TRIAL. **PROPOSITION II:** THE STATE'S DECISION TO PROCEED WITH A TWO-STAGE TRIAL WITHOUT ANY PROOF OF FORMER FELONIES CAUSED HARM TO Ms. BARBEE. **PROPOSITION III:** PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION IV:** INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION V:** THE SENTENCE WAS EXCESSIVE. **PROPOSITION VI:** CUMULATIVE ERROR DEPRIVED Ms. BARBEE OF A FAIR TRIAL. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was charged with sexually exploiting her minor sister for financial gain. The State charged two counts, but the jury found her guilty of only one. As to Propositions I and II, the record indicates that (1) Appellant had prior convictions used to enhance the sentence on one of the two charges she faced; (2) the trial was bifurcated as to both charges; but (3) the jury acquitted Appellant of the enhanced count. Thus, the jury sentenced Appellant as a first offender on the remaining charge, and never heard about the prior convictions. The procedure used was entirely proper, and Appellant fails to show any prejudice from it. *Wisdom v. State*, 1996 OK CR 22, 99 17-20, 918 P.2d 384, 390; *Marshall v. State*, 2010 OK CR 8, I 58, 232 P.3d 467, 481. Propositions I and II are denied. In Proposition III, Appellant alleges six instances of prosecutorial misconduct. Because she did not object to these comments below, we review them only for plain error - an actual error, that is plain or obvious, and that affects a defendant's substantial rights and the outcome of the trial. *Bosse v. State*, 2017 OK CR 10, 9 82, 400 P.3d 834, 863. We find no error. First, the prosecutor did not impermissibly comment on Appellant's failure to testify simply by arguing that the jury had received absolutely nothing to contradict the testimony of the State's primary witnesses. Such general comments about the totality of the evidence (and lack of controverting evidence) differ from directly suggesting that the defendant must be guilty because she did not take the stand. *Id.*, 2017 OK CR 10, I 85, 400 P.3d at 863. The prosecutor never shirked her burden to prove all elements of the crime. Second, the prosecutor did not vouch for the credibility of complaining witnesses by pointing to their demeanor and the consistency in their accounts; these comments were properly based on evidence presented to the jury. *Taylor v. State*, 2011 OK CR 8, I 57, 248 P.3d 362, 379; *Bland v. State*, 2000 OK CR 11, I 97, 4 P.3d 702, 728. Third, the prosecutor's assessment of the defense strategy as smoke and mirrors and intellectually disingenuous, and her statement, Ladies and gentlemen, she is guilty, were also fair inferences from the evidence presented. *Harris v. State*, 2000 OK CR 20, I 35, 13 P.3d 489, 498. Fourth, assertions of the defendant's guilt are not improper if they are made with reference to the evidence presented. *Williams v. State*, 2008 OK CR 19, I 107, 188 P.3d 208, 228. Fifth, asking the jury to consider the long-term effects of the defendant's conduct on the victim when assessing the sentence was not plainly erroneous. *Carol v. State*, 1988 OK CR 114, I 10, 756 P.2d 614, 617. We note that the jury recommended a sentence less than the 40-year sentence requested by the prosecutor. Finally, the prosecutor's reference in the punishment stage to acquitted conduct (Count 2, the charge on which the jury found Appellant not guilty in the first stage of the trial) was not improper. The jury was still free to consider that conduct, because it was not an element the State had to prove beyond a reasonable doubt with regard to sentencing on Count 1. *See Dowling v. United States*, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). We find no error in the prosecutor's comments such as would warrant any relief. Proposition III is denied. In Proposition IV, Appellant faults trial counsel for not making objections to the issues raised in Propositions I, II, and III. To show trial counsel was ineffective, she must show both deficient performance and prejudice. *Strickland v. Washington*, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); *White v. State*, 2019 OK CR 2, I 23, 437 P.3d 1061, 1070. Because we found no merit to these substantive complaints, trial counsel was not ineffective. *Jackson v. State*, 2016 OK CR 5, I 13, 371 P.3d 1120, 1123. Proposition IV is denied. As to Proposition V, given Appellant's conduct in this case, the sentence recommended by the jury (less than what the prosecutor requested) was not shocking to the conscience, and the trial court's order that the sentence be served consecutively to Appellant's sentence in an unrelated case was not an abuse of discretion. *White*, 2019 OK CR 2, I 29, 437 P.3d at 1072. As to Proposition VI, because no error has been identified above, there can be no relief for cumulative error. *Engles v. State*, 2015 OK CR 17, I 13, 366 P.3d 311, 315. Proposition VI is denied. **DECISION** The Judgment and Sentence of the District Court of Muskogee County 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 the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY THE HONORABLE MICHAEL NORMAN, DISTRICT JUDGE **ATTORNEYS AT TRIAL** DAN MEDLOCK MEDLOCK LAW 620 WEST BROADWAY MUSKOGEE, OK 74401 **COUNSEL FOR DEFENDANT** **ATTORNEYS ON APPEAL** LISBETH L. MCCARTY INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR APPELLANT** NALANI CHING ASST. DISTRICT ATTORNEY DISTRICT ATTORNEY'S OFFICE KEELEY L. MILLER ASST. ATTORNEY GENERAL 220 STATE STREET MUSKOGEE, OK 74401 **COUNSEL FOR THE STATE** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-616_1735230080.pdf)

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F-2018-477

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In OCCA case No. F-2018-477, Gerald L. Taylor appealed his conviction for Robbery with a Firearm and Unlawful Possession of a Firearm by a Convicted Felon. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Gerald L. Taylor was found guilty of serious crimes, including robbery using a firearm and having a firearm when he was not allowed to have one due to past convictions. The trial took place in Oklahoma County, where the judge sentenced Taylor to a total of thirty-five years in prison. Taylor raised several issues on appeal. First, he argued that his incriminating statements should not have been allowed in court because he wanted to remain silent. The court looked at whether he had clearly stated this right. It found that even though he initially said he didn’t want to talk, he later chose to answer questions. Therefore, the court believed he willingly spoke to police after being informed of his rights and upheld the decision to admit his statements. Second, Taylor claimed that the trial judge made a mistake by not allowing the removal of a juror who he thought could not understand English well enough to participate in the trial. However, the judge questioned the juror and decided she was competent. Since Taylor had not properly objected to the juror's presence and even invited the situation, this issue was not considered a strong point for his appeal. Third, Taylor stated that his lawyer did not help him effectively, especially concerning the juror issue. However, the court found that despite any possible mistakes, the evidence against Taylor was very strong. His lawyer’s actions did not cause him to lose a fair trial. Lastly, Taylor claimed that even if no single error was enough to change his conviction, the overall combination of issues should lead to a new trial. The court ruled that there were no errors significant enough to warrant a new trial or change in his sentence. In conclusion, the court upheld the original judgment and Taylor's sentences, indicating that he received a fair trial despite his complaints.

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F-2018-147

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In OCCA case No. F-2018-147, Marcus Dewayne Boyd appealed his conviction for First Degree Murder, Shooting with Intent to Kill, and Possession of a Firearm After Former Conviction of a Felony. In an unpublished decision, the court decided to affirm the judgment and sentences from the trial court. One judge dissented. Marcus Dewayne Boyd was found guilty by a jury of serious crimes, including murder and several counts of shooting at people. The jury decided that he should spend life in prison for the murder, twenty years for each shooting count, and two years for the weapon possession. The judge ordered that these sentences should be served one after the other, meaning Boyd would spend a long time in prison before having a chance for parole. During the appeal, Boyd argued several points, saying that his trial was unfair. He mentioned that it was wrong for the court to allow evidence about his gang affiliation. The court saw that this evidence helped explain why the crimes happened, so they disagreed with Boyd's claim. He also said it was unfair that the prosecutor questioned a witness about her relatives who had been prosecuted. The court agreed that this questioning was okay to show potential bias and did not cause an error. Boyd claimed that the way police showed the lineup of suspects was unfair and could influence witnesses. However, the court found the lineup was appropriate and did not break any rules about how police should conduct lineups. Boyd further argued that the prosecution did not share some evidence that could have helped him in his defense, but the court decided that he did not prove this claim. Boyd also objected to how one of the witnesses, who had a prior conviction, was treated in court. The court stated that having a history of misdemeanors is generally allowed as it can show a witness's credibility. Furthermore, Boyd said he was made to wear a ankle restraint during the trial without a good reason. The court recognized that this was not justified but ultimately decided it did not affect the outcome of the trial significantly. On the point of his lawyer's performance, Boyd claimed his lawyer did not defend him properly and raised many issues that could have been objected to but were not. However, the court noted that there were no errors in the trial that would change the outcome, so the attorney’s actions were acceptable. Finally, Boyd argued that the combination of all these issues made the trial unfair. The court agreed that there was only one area where there was an error, but this alone was not enough to convince them that it affected the jury's decision. In summary, the court found no reason to change the conviction or sentence, agreeing that the trial was mostly fair and that Boyd received appropriate legal representation, despite a few concerns about courtroom procedures.

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F-2018-867

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BILLIE WAYNE BYRD,** Appellant, vs. **THE STATE OF OKLAHOMA,** Appellee. **No. F-2018-867** **Not for Publication** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **SEP 19 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Billie Wayne Byrd was tried by jury and convicted of Child Sexual Abuse - Under 12 in violation of 21 O.S.Supp.2014, § 843.5(F), in the District Court of Muskogee County, Case No. CF-2017-621. Following the jury's recommendation, the Honorable Norman D. Thygesen sentenced Appellant to twenty-five (25) years imprisonment, with a three-year term of post-imprisonment supervision. Appellant appeals this conviction and sentence. **Propositions of Error:** 1. Plain error occurred when the jury sought to see the judge but was directed to submit any question in writing. 2. Prosecutorial misconduct deprived Appellant of a fair trial. **Analysis:** After thorough consideration of the entire record, including the original record, transcripts, exhibits, and briefs, we find that the law and evidence do not require relief. **Proposition I: Jury Communication** We find that the trial court's failure to follow the mandatory procedure set forth in 22 O.S.2011, § 894 did not prejudice Appellant. He did not object to the use of written communication, so we review for plain error. Plain error must be an actual error that is evident and affects the defendant's substantial rights (Thompson v. State, 2018 OK CR 5). Jurors seeking information during deliberations must require the officer to conduct them into court, and answers must be given in the presence of, or after notice to, counsel and the defendant. The written response to a juror question is a plain violation of the statute (Nicholson v. State, 2018 OK CR 10). While we presume prejudice due to this error, it can be rebutted by demonstrating there was no actual prejudice. Here, the jury's questions were addressed accurately and appropriately. The judge's written response to the jurors' first inquiry did not prejudice Appellant. The second question resulted in a prompt indication for further written inquiries, which indicates communication continued rather than being foreclosed. Ultimately, no actual prejudice against the Appellant is evident on the face of the record. The minimum sentence imposed and lack of indications of serious jury concerns further support no shown prejudice. Thus, we find no error requiring reversal. **Proposition II: Prosecutorial Misconduct** The arguments presented in closing did not amount to prosecutorial misconduct. Attorneys have latitude in arguing evidence and its inferences unless such arguments negatively affect trial fairness (Barnes v. State, 2017 OK CR 26). Appellant did not object to the statements raised on appeal, so we review for plain error (Mathis v. State, 2012 OK CR 1). One contested statement asserted the victim's trustworthiness, which was in response to defense claims of inconsistency. While prosecutors should refrain from personal endorsements of credibility, the context mitigated the impact of this statement. In analyzing the comments regarding the victim's emotional struggles, the remarks were reasonable inferences drawn from evidence presented in trial. The overall context did not compromise the trial's fairness. **Decision:** The Judgment and Sentence of the District Court of Muskogee County 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 the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY** **THE HONORABLE NORMAN D. THYGESEN** --- **Attorneys on Appeal:** **Counsel for Defendant:** Dan Medlock **Counsel for Appellant:** Jeremy Stillwell **Counsel for the State:** Morgan Muzljakovich, Mike Hunter (Assistant District Attorney), Julie Pittman (Assistant Attorney General) --- **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR

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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-2017-1019

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In OCCA case No. F-2017-1019, Johnson appealed his conviction for Child Sexual Abuse. In an unpublished decision, the court decided to affirm Johnson's conviction and sentence. One judge dissented. Johnson was found guilty of abusing a child and was sentenced to twenty-five years in prison. He also had to pay a fine and would be supervised after serving his time. Johnson argued that the evidence against him wasn't enough, that the jury didn't get proper instructions, that his lawyer didn't help him much, and that he didn’t know he would be on a list of sex offenders if convicted. The court looked closely at all these claims and found no significant problems. First, the court said there was enough evidence for the jury to decide Johnson was guilty beyond a reasonable doubt. Johnson claimed the actions happened because of a dream, but the jury believed otherwise. The court said that it would not change the jury's decision as they followed the law. Second, the court noted that the jury had received instructions about what would happen after Johnson was imprisoned. So, this point did not hold. Third, Johnson's claim about his lawyer not performing well was also denied. For this claim to work, Johnson would need to show that his lawyer made a serious mistake that hurt his defense. However, Johnson only gave statements about his own state of mind without clear evidence to support his claim. The court found that his lawyer did not make mistakes that harmed Johnson's case. Next, the court looked at the claim about sex offender registration. Johnson said the jury should have been told more about this, but he never asked for this instruction during the trial. The court decided there was no clear error because they had already ruled on this issue in past cases. Finally, the court dismissed Johnson's claim about the combined effects of the errors. Since they found no significant errors, they concluded that his right to a fair trial had not been violated. In the end, the court upheld Johnson's conviction and sentencing, affirming the judgment made by the lower court.

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F-2018-221

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In OCCA case No. F-2018-221, Kenneth Merle Hammick, II appealed his conviction for robbery with a dangerous weapon, burglary in the first degree, and larceny of an automobile. In a published decision, the court decided to affirm the judgment and sentence of the district court. One judge dissented. Kenneth Hammick was convicted of serious crimes. The evidence showed that he broke into a house in Claremore, Oklahoma, on May 10, 2015. He threatened the people inside with a gun and stole a car from one of the victims to escape. He later tried to steal another car but took a pistol instead. The police found him hiding in some bushes the next day. During police questioning, Hammick made statements that suggested he was guilty, even though he initially denied doing anything wrong. After a while, he asked to speak to the police again and confessed to the robbery, even showing them where he had hidden the gun. Hammick's first argument was that the court should not have allowed his confession to be used against him because he had already asked for a lawyer. The court decided that since he started talking to the police again, his confession was valid, and he understood what he was doing. Next, Hammick claimed that the way the police identified him was unfair. He said that because he had a neck tattoo, he was easily recognizable in a photo lineup shown to the victims. However, the court found that the victims had a good opportunity to see him during the crime and provided reliable identifications. Lastly, Hammick argued that the court should not have allowed evidence of another crime he committed after the robbery. This was a theft of a gun. The court decided that this evidence was important to provide a complete picture of Hammick's actions and did not unfairly prejudice the jury against him. In the end, the court upheld Hammick's conviction and did not find any reason to change the original decision.

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F-2018-194

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In OCCA case No. F-2018-194, the appellant appealed his conviction for sexual abuse of a child under twelve and child sexual abuse. In an unpublished decision, the court decided to affirm the convictions. One judge dissented. The appellant, William Harold Pittman, was convicted by a jury for serious crimes against children. The jury gave him a punishment of thirty years in prison for each crime, and both sentences were meant to be served one after the other. The judge who oversaw the trial also ordered the appellant to pay various costs and fees. Pittman appealed his conviction, claiming that the trial court made a mistake by allowing expert testimony about something called the Child Sexual Abuse Accommodation Syndrome (CSAAS). He argued that this evidence was not relevant and should not have been allowed, saying it was not proven to be reliable. The court explained that the decision to allow expert evidence is usually up to the trial judge. If a specific objection is made during the trial, then the appeal cannot rely on a different argument later. Pittman did not object during the trial to the CSAAS evidence based on its relevance or reliability, which made his chance for appeal more difficult. To win an appeal based on a plain error, the appellant needs to show three things: that there was a real error, that it was obvious, and that the error affected the case's outcome. The court found that Pittman could not prove any such errors in this case. The court stated that previously, CSAAS had been accepted as reliable evidence in prior cases. This evidence can help explain why some children might take a long time to talk about the abuse or might change their statements after initially making claims. In this case, the court confirmed that the CSAAS evidence was relevant to the victim's delay in talking about the abuse. Pittman also claimed that there wasn't enough data to prove CSAAS was reliable and asked the court to reconsider accepting it as reliable evidence. However, the court refused to change its stance, stating that it would not revisit this issue. Lastly, Pittman argued that the CSAAS testimony was too supportive of the victim's story and could not be considered harmless. The court pointed out that this evidence was permissible because it only served to support what the victim and other witnesses testified about. The court ultimately found no errors in the trial regarding the way CSAAS evidence was handled, and therefore affirmed the judgments and sentences against Pittman.

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F-2018-502

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In OCCA case No. F-2018-502, Randall Patrick Molloy appealed his conviction for Child Abuse by Injury. In an unpublished decision, the court decided to affirm Molloy's conviction. One justice dissented. Molloy was found guilty by a jury in Tulsa County for hurting a child, which is a serious crime. The jury decided he should go to prison for sixteen years and pay a fine of $5,000. However, the judge agreed to lessen his sentence by taking away three years, meaning he would only have to serve thirteen years in prison. Molloy raised two main problems with his trial. First, he argued that he didn't get a fair trial because the state didn't share an agreement with a co-defendant that might have helped his case. Second, he felt that instructions given to the jury were confusing and didn't help them understand the facts related to the co-defendant's earlier statements. The court reviewed all the evidence and listened to the arguments from both sides. They pointed out that for Molloy to get a new trial based on not receiving a fair trial, he had to show that there was a clear mistake that changed how the trial turned out. Ultimately, they found that there were no clear mistakes or errors in the trial. The court noted that the information about the co-defendant was known to Molloy's lawyer during the trial, and therefore, it did not affect the outcome negatively. Regarding the jury instructions, the court also concluded that those instructions did not clearly cause any problems that could change the trial's result. The jury had enough information to make a fair decision about Molloy's guilt based on the evidence presented. In summary, because the court found that there were no serious mistakes during the trial, they decided to uphold the original decision made against Molloy.

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