Judgment Archives - Page 2 of 7

RE-2018-1217

Post author:Staff
Post published:December 19, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DEXTER JEROME BIGLOW,** Appellant, **V.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2018-1217** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA DEC 19 2019** **JOHN D. HADDEN CLERK** **SUMMARY OPINION** KUEHN, VICE-PRESIDING JUDGE: Appellant Dexter Jerome Biglow appeals from the revocation of his suspended sentences in Oklahoma County District Court Case No. CF-2017-3262. On February 14, 2018, Appellant entered negotiated guilty pleas to Aggravated Attempting to Elude and Possession of a Controlled Dangerous Substance (marijuana). He was sentenced to five years of imprisonment on the eluding count and to one year of incarceration on the drug charge, to be served concurrently, with both sentences suspended. On November 6, 2018, the State filed an application to revoke the suspended sentences, alleging that Appellant had committed the new crimes of domestic abuse by strangulation and domestic abuse resulting in great bodily injury. A hearing on the application to revoke was held on November 27, 2018, before the Honorable Ray C. Elliott, District Judge, who granted the State's application and revoked Appellant's suspended sentences in full. On appeal, Appellant contends that the State failed to present sufficient evidence to prove the allegations contained in the application to revoke. We respectfully disagree. **ANALYSIS** At a revocation hearing, the focus is whether the terms of the suspension order have been violated, with the standard of proof being a preponderance of the evidence. The trial court's decision should not be overturned unless there is a clear abuse of discretion. In this case, both Officers Taylor and Mueggenborg testified at the hearing, having individually interviewed the alleged victim of the domestic abuse. The judge found their testimony had substantial guarantees of trustworthiness, which allowed the court to consider the victim's out-of-court statements. Notably, while the testimony was contradictory, the court did not abuse its discretion by finding the State adequately proved its case for revocation. The credibility of witnesses is a matter for the trial court, which may choose to believe or disbelieve any witness. **DECISION** The order of the District Court of Oklahoma County revoking Appellant's suspended judgments and sentences in Case No. CF-2017-3262 is therefore AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon delivery and filing of this decision. **APPEARANCES:** Thomas P. Hurley - Assistant Public Defender Marva A. Banks - Assistant Public Defender Danielle Connolly - Assistant District Attorney Mike Hunter - Oklahoma Attorney General Tessa L. Henry - Assistant Attorney General **OPINION BY:** KUEHN, V.P.J.: LEVIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR

F-2019-16

Post author:Staff
Post published:December 12, 2019
Post category:F

**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)

F-2018-562

Post author:Staff
Post published:December 12, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **AARON THOMAS BROCK,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-562** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Aaron Thomas Brock was convicted by jury of robbery with a dangerous weapon and conspiracy to commit a felony in Oklahoma County District Court, receiving a total sentence of thirty-five years imprisonment. He appeals with two propositions of error. **Proposition One: IAD Violation** Brock argues his rights under the Interstate Agreement on Detainers (IAD) were violated when the State did not bring him to trial within the mandated 180 days. The trial court ruled that no proper detainer was lodged against him as required by Article III of the IAD. Brock contends that a documentation was sent to the appropriate authorities, triggering the IAD timeline. The trial court determined that there was no evidence of a proper detainer because the Oklahoma County District Attorney's office and the Court Clerk's office had no record of receiving documentation from Brock. Notably, the trial court found a facsimile from the Sheriff's office did not constitute a proper detainer as defined by case law (Fex v. Michigan). The Court agreed with the trial court's findings, ruling that Brock failed to provide sufficient documentation and credible evidence to support his claims. **Proposition Two: Insufficient Evidence** In his second proposition, Brock asserts that the evidence was insufficient to uphold the conviction for robbery with a dangerous weapon. The standard for reviewing evidence requires this Court to determine if, viewing the evidence favorably to the prosecution, a rational jury could find guilt beyond a reasonable doubt. The facts presented included testimony that a knife was brandished toward a victim and that money was taken by a co-defendant and given to Brock. The Court found that this evidence met the elements for robbery with a dangerous weapon, reinforcing that the presence of fear in the victim suffices for conviction. **Decision** Both propositions of error raised by Brock are denied. The judgment and sentence are AFFIRMED. A mandate will issue upon filing this decision. **Appeal from the District Court of Oklahoma County** The Honorable Timothy R. Henderson, District Judge **Attorneys for Appellant**: Nick Southerland, Andrea Digilio Miller, Micah Sielert **Attorneys for Appellee**: Kelly Collins, Mike Hunter, Lori McConnell, Jennifer B. Miller **OPINION BY:** LEWIS, P.J. **CONCURRING:** KUEHN, V.P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [**Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-562_1735316443.pdf)

F-2018-882

Post author:Staff
Post published:December 5, 2019
Post category:F

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RE-2018-604

Post author:Staff
Post published:October 10, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEROY ALEXANDER, JR.,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-604** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **OCT 10 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Leroy Alexander, Jr., was sentenced to a total of fifteen years for the crime of Rape in the Second Degree, with all but the first year suspended. This appeal arises from the revocation of the remainder of his suspended sentence by the Honorable George W. Butner, District Judge of Seminole County. **Facts:** On April 5, 2018, the State of Oklahoma filed a motion to revoke Appellant's suspended sentence, alleging violations related to failure to attend sex offender treatment and failure to submit to required polygraph examinations. An amended motion on June 1, 2018, added allegations of inappropriate employment at a children's carnival ride during a festival. During the revocation hearing, the State's probation officer testified that Appellant had initially attended treatment sessions but was terminated for non-attendance. Appellant claimed his violations stemmed from financial hardship and lack of transportation. The Court ultimately found that Appellant had not made genuine efforts to comply with the terms of his probation. **Points of Error:** 1. **Proposition I:** Appellant argues that the trial court lacked authority to revoke more than the actual suspended portion of his sentence. He claims the written order incorrectly states that all of the fifteen years was revoked. However, the oral pronouncement during the hearing indicated the revocation was for the remainder of the suspended sentence. The court later issued an amendment to clarify the written judgment, aligning it with the oral ruling. 2. **Proposition II:** Appellant contends the full revocation of his suspended sentence was excessive, arguing that his violations were a result of indigence and lack of resources. The court's discretion in revoking a suspended sentence is established unless there is an abuse of discretion. Judge Butner found the violations were due to Appellant's lack of effort rather than financial difficulties, which was supported by evidence in the record. **Decision:** The order of the District Court of Seminole County revoking the remainder of Appellant's fifteen-year suspended sentence is AFFIRMED. The Mandate is ordered issued upon the filing of this decision. --- **ATTORNEYS:** - **ZACHARY L. PYRON** - **CHAD JOHNSON** (Appellate Defense Counsel) - **CHRISTOPHER G. ANDERSON** - **MIKE HUNTER** - **THEODORE M. PEEPER** (Assistant District Attorney / Attorney General of Oklahoma) **OPINION BY:** **KUEHN, V.P.J.** **LEWIS, 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-2018-604_1734429602.pdf)

F-2018-814

Post author:Staff
Post published:October 3, 2019
Post category:F

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

F-2018-477

Post author:Staff
Post published:September 26, 2019
Post category:F

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.

F-2018-341

Post author:Staff
Post published:September 26, 2019
Post category:F

In OCCA case No. F-2018-341, Anthony Kejuan Day appealed his conviction for several charges. In a published decision, the court decided to affirm the judgment and sentence against him. One judge dissented. Mr. Day was convicted of assault and battery on a police officer, conspiracy to cause violence, possession of a firearm after a felony conviction, obstructing an officer, and resisting an officer. The trial court sentenced him to a total of twenty-five years for the first charge, with additional long sentences for the others. Mr. Day argued that the trial court made several mistakes. He claimed that the prosecution unfairly excluded African-American jurors, that changes to the charges against him were wrong, that he was punished too harshly for similar actions, and that his sentences should not have run one after the other but rather together. The court examined each argument. For the claim about jurors, it decided that the trial court acted properly and that there was no discrimination. Regarding the changes to the charges, the court found no clear mistakes that would have harmed Mr. Day's case. The court also rejected his argument about facing double punishment for similar offenses. Finally, it determined that the trial court was correct in allowing the sentences to be served consecutively. In conclusion, the court upheld the decision of the trial court and affirmed Mr. Day's convictions and sentences.

F-2018-749

Post author:Staff
Post published:September 19, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **RALPH WILLIAM SISCO, JR.,** ) Appellant, ) vs. ) **THE STATE OF OKLAHOMA,** ) Appellee. ) **Case No. F-2018-749** ) **FILED** ) **IN COURT OF CRIMINAL APPEALS** STATE OF OKLAHOMA ) **SEP 19 2019** ) **SUMMARY OPINION** JOHN D. HADDEN CLERK ROWLAND, JUDGE: Appellant Ralph William Sisco, Jr. appeals his Judgment and Sentence from the District Court of Nowata County, Case No. CF-2017-123, for Lewd Molestation (Counts 1 and 2), in violation of 21 O.S.Supp.2015, § 1123. The Honorable Curtis L. DeLapp, District Judge, presided over Sisco's jury trial and sentenced him, in accordance with the jury's verdict, to twenty-five years imprisonment on each count, ordered to be served consecutively. The trial court also imposed three years of post-imprisonment supervision. Sisco raises several issues on appeal: 1. **Sufficiency of Evidence**: He questions whether the evidence presented was sufficient to convict him beyond a reasonable doubt for Lewd Molestation in Count 2. The court holds that the State proved each element of the crime beyond a reasonable doubt. 2. **Preliminary Hearing**: Sisco challenges his binding over at the preliminary hearing due to the introduction of hearsay evidence. The court finds he waived his right to challenge this by failing to object during the hearing. 3. **Admission of Other Crimes Evidence**: He contends that the trial court erred by allowing evidence of other crimes and bad acts. The court concludes that the evidence was part of the res gestae of the charged offenses and was properly admissible. 4. **Jury Instructions**: Sisco claims the court erred in not instructing the jury on lesser offenses, including child abuse. The court finds no error; the lack of evidence to support such an instruction means it was not warranted. 5. **Effective Assistance of Counsel**: He argues that he received ineffective assistance of counsel for various reasons, including failure to object to hearsay and other crimes evidence. The court holds that there were no deficiencies in counsel’s performance affecting the trial's outcome. 6. **Consecutive Sentences**: He contends the trial court abused its discretion in ordering his sentences to be served consecutively. The court finds no abuse of discretion in this decision. 7. **Cumulative Errors**: Sisco asserts cumulative errors warrant a new trial. The court finds no individual errors that, taken together, deprived him of a fair trial. **DECISION**: The Judgment and Sentence of the district court is **AFFIRMED**. **OPINION BY**: ROWLAND, J. **LEWIS, P.J.**: Concur **KUEHN, V.P.J.**: Specially Concur **LUMPKIN, J.**: Concur in Results **HUDSON, J.**: Concur **KUEHN, V.P.J., SPECIALLY CONCUR**: I agree that the convictions should be affirmed but note that as to Count II, the evidence does not support an instruction on a lesser offense due to the nature of the charge and the evidence presented. --- **[Full Text Document PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-749_1735218036.pdf)**

F-2017-1019

Post author:Staff
Post published:September 19, 2019
Post category:F

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.

F-2018-358

Post author:Staff
Post published:September 12, 2019
Post category:F

In OCCA case No. F-2018-358, Sean Daniel Simmons appealed his conviction for domestic abuse by strangulation. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Sean Daniel Simmons was found guilty by a jury for hurting his girlfriend on three occasions during a long argument at their apartment. The girlfriend's twelve-year-old son was in a nearby room sleeping at the time. The girlfriend testified that he choked her until she lost consciousness three times. Once, when he called 911, he slapped her when she tried to take the phone. After the incidents, she sought medical help and was diagnosed with a throat injury, although there were no visible marks on her throat, and she didn’t suffer any serious long-term effects. Simmons argued in his first claim that the evidence against him was not enough to support the conviction. The court reviewed the evidence and decided that it was reasonable for the jury to find him guilty beyond a reasonable doubt for domestic abuse by strangulation. In his second claim, Simmons believed the trial court should have explained what “great bodily harm” meant to the jury. He wanted a clear definition because he felt the term was too vague. However, the trial court used standard jury instructions that explained the elements of the crime, including how strangulation was defined. Ultimately, the court held that the trial court did not make a mistake when it refused to define “great bodily harm” more specifically. The decision to not elaborate on this term was appropriate, as the standard instructions already provided enough information to the jury for them to make an informed decision. The judgment was affirmed, and the judges agreed that the trial court acted correctly in these matters.

F-2018-945

Post author:Staff
Post published:August 8, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CASE SUMMARY:** **Appellant:** Carey James Buxton **Appellee:** The State of Oklahoma **Case Numbers:** CM-2014-358, CF-2014-578, CF-2017-5 **Opinion Date:** August 8, 2019 **Judge:** Lumpkin --- **BACKGROUND:** Carey James Buxton appealed the termination of his participation in the Drug Court program and the imposition of sentencing by the District Court of Kay County, presided by Judge David Bandy. Buxton had entered pleas of no contest to multiple charges, including drug possession and burglary, and was sentenced to a Drug Court program where successful completion would lead to dismissal of the charges. However, after the State filed applications for his removal from the Drug Court program due to non-compliance, a hearing was conducted on this matter. The judge ultimately decided to terminate Buxton from the program and impose the sentencing terms outlined in the plea agreement. --- **PROPOSITION OF ERROR:** Buxton asserts that the trial court abused its discretion in terminating him from the Drug Court program. --- **ANALYSIS:** 1. **Standard of Review:** The decision to revoke or terminate a Drug Court participant lies within the trial judge's discretion. An abuse of discretion is defined as a clearly erroneous conclusion. 2. **Contentions by Appellant:** - Buxton argues that the court did not assess whether disciplinary measures short of termination would suffice. - He also claims that removal for cheating on drug tests is against Drug Court laws. 3. **Court Findings:** - The court ruled that violations needed to be proven by a preponderance of the evidence. Buxton repeatedly violated the terms of his Drug Court contract despite receiving multiple jail sanctions. - The appellate court noted that termination was not an automatic consequence of drug test failures; the trial court considered all relevant factors before making its decision. 4. **Conclusion:** - The appellate court determined that the trial court’s decision was supported by the evidence and was not an abuse of discretion. Buxton's proposition of error was denied. --- **DECISION:** The order terminating Buxton from the Drug Court and proceeding with sentencing as per the plea agreement is **AFFIRMED**. The mandate is to be issued immediately following the filing of this decision. **APPEARANCES:** - **For Appellant:** Jarrod Stevenson and Jeremy Stillwell (Appellate Defense Counsel) - **For Appellee:** Brian Hermanson (District Attorney), Mike Hunter (Oklahoma Attorney General), Tessa L. Henry (Assistant Attorney General) --- **OPINION BY: LUMPKIN, J.** - **Concur:** Lewis, P.J.; Kuehn, V.P.J.; Hudson, J.; Rowland, J. --- For further details, the complete opinion is available in PDF format: [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-945_1734875235.pdf).

RE-2018-674

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

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEON DESHAWN WRIGHT,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. RE-2018-674** **Filed July 18, 2019** **SUMMARY OPINION** **HUDSON, JUDGE:** This case involves an appeal by Appellant Leon Deshawn Wright from the revocation of his suspended sentence in Oklahoma County District Court, Case No. CF-2014-1676. **Background:** On April 30, 2015, Wright entered a guilty plea to Knowingly Concealing Stolen Property after a previous felony conviction, for which he was sentenced to five years of imprisonment, all suspended. The State filed an application to revoke this sentence on May 9, 2016, citing multiple violations, including failure to obtain a mental health assessment, failure to report to a drug rehabilitation program, failure to pay supervision fees, and possession of marijuana. A hearing was conducted on August 27, 2018, overseen by the Honorable Bill Graves, where the judge granted the State's application for revocation, leading to the current appeal. **Analysis:** At a revocation hearing, the court determines if the terms of the probation have been violated, which should be proven by a preponderance of the evidence. Revocation should not be overturned unless there's an abuse of discretion by the trial court. 1. **Possession of Marijuana:** Appellant argues insufficient evidence for this charge. The court agrees but finds sufficient evidence for the remaining violations. 2. **Failure to Pay Fees:** Appellant contends his failure to pay fees was not willful. The court finds it was Appellant's responsibility to demonstrate he was not willful in this failure. As Appellant did not provide evidence regarding his employment status or good-faith efforts to pay, the burden was not met. 3. **Full Revocation Justification:** Appellant argues that the violations do not justify full revocation. However, the court finds the failure to report alone is an adequate basis for revoking the suspended sentence. **Decision:** The Oklahoma Court of Criminal Appeals affirms the District Court's order revoking the suspended sentence in Case No. CF-2014-1676. **Judges’ Concurrence:** - **KUEHN, V.P.J.:** Concurred in part/dissented in part, stating that while he agreed some violations justified revocation, he dissented concerning the failure to pay fines, emphasizing that Appellant's evidence of homelessness and unemployment should have been considered. He finds the court should demonstrate more clarity on when failure to pay fines due to indigence suffices to avoid revocation. For further details and the full legal opinion, you can [download the PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-674_1734423903.pdf).

F-2017-802

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

In OCCA case No. F-2017-802, Jestin Tafolla appealed his conviction for Assault and Battery with a Dangerous Weapon and Carrying a Weapon Unlawfully. In a published decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Tafolla was sentenced to life imprisonment for the assault and thirty days in jail for the misdemeanor charge, with the sentences served at the same time. His appeal raised several issues, mainly about whether his trial was fair. He claimed that evidence of his gang affiliation unfairly influenced the jury, that introducing certain statements violated his rights, and that errors occurred during the trial process. The court discussed the details of the case where Tafolla assaulted a man following a traffic dispute. Detectives witnessed Tafolla hitting the victim and confiscated brass knuckles he discarded. Witness statements indicated that racial slurs were part of the altercation. The court found that the evidence of Tafolla's gang membership was relevant to understand the incident and the motivations behind it. It ruled that the testimony related to his affiliation did not violate his rights and was permissible to show motive and intent. They also addressed Tafolla's complaints about the admission of the victim's statements, concluding that these did not prevent a fair trial. The admission of prior convictions for cross-examination purposes was also deemed appropriate as it was relevant to the prosecution's case. In issues raised about the prosecutor's conduct and jury instructions, the court determined that no significant errors impacted the trial. The arguments made by the prosecution were within the acceptable realm of discussing the evidence. Overall, the court found no individual errors that would require a new trial and concluded that the accumulation of complaints did not undermine the fairness of the proceedings. Thus, the original judgment was upheld, and Tafolla’s appeal was denied.

RE 2018-0457

Post author:Staff
Post published:July 11, 2019
Post category:RE

In OCCA case No. RE 2018-0457, Tommy Lee Tucker appealed his conviction for Domestic Assault and Battery After Prior Conviction, Domestic Assault and Battery by Strangulation, and Kidnapping. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but remanded the case to the District Court to correct inconsistencies in the sentencing documents. One judge dissented.

F-2018-531

Post author:Staff
Post published:June 13, 2019
Post category:F

In OCCA case No. F-2018-531, Joseph Green Stoker appealed his conviction for Rape by Instrumentation (Count 1) and Lewd Molestation (Count 2). In a published decision, the court decided to affirm the Judgment and Sentence of the district court, meaning Stoker would serve ten years on each count, with the sentences served one after the other. One judge dissented. Stoker argued that he was not allowed to present a proper defense because his witnesses were not allowed to testify. The court found that the trial judge was correct in excluding the evidence because Stoker did not follow the proper legal steps to get those witnesses into the trial. Stoker also claimed that the prosecutor acted unfairly, which made it hard for him to have a fair trial. The court looked at previous cases and decided that what the prosecutor did was not harmful enough to change the outcome of Stoker's trial. Another point made by Stoker was that his lawyer did not do a good job defending him. However, the court said Stoker could not prove that this lack of help from his lawyer actually affected the outcome of the trial. Finally, Stoker complained that the trial court wrongly ordered him to pay some costs while he was still in prison. The court explained that there are laws that allow part of an inmate's earnings in prison to be used for paying court fees, so they found no error in the judge's decision. Overall, the court did not find any mistakes significant enough to affect Stoker's conviction or sentencing, so they upheld the original decision.

F-2018-384

Post author:Staff
Post published:May 23, 2019
Post category:F

In OCCA case No. F-2018-384, Jimmy Dean Coke, Jr. appealed his conviction for Knowingly Concealing Stolen Property and Obstructing an Officer. In an unpublished decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Jimmy Dean Coke, Jr. was convicted of two crimes. The first was knowing concealment of stolen property, and the second was obstructing an officer. The court sentenced him to twenty-five years for the first charge and one year for the second, and he also had to pay fines. Coke argued that the proof against him was not strong enough. He believed there was not enough evidence to convict him beyond a reasonable doubt for either charge. However, the court reviewed the evidence in a way that favored the state. This meant they looked for any reasonable way a jury could have found him guilty. They decided there was enough evidence to support both convictions. Coke also claimed the trial court didn’t tell the jury about the value of the stolen property, which he thought was a mistake. For a charge of concealing stolen property to be a felony, the property must be worth $1,000 or more. Although the judge did not instruct the jury about this value, they still found that the property was worth $1,500 based on testimony, so the court determined that the omission was harmless. Coke left the courthouse during the jury's deliberation. The jury reached a verdict, and he was not there. Coke argued that he had the right to be present during this critical time. The court decided that because Coke chose to leave, he waived his right to be there, and the judge acted correctly by continuing without him. Coke believed that the prosecutor’s arguments were unfair and made it hard for him to have a fair trial. They reviewed the claims of misconduct and found that some were not objected to during the trial; therefore, they could only check for obvious errors. The court found minimal misconduct and did not feel it affected his trial's fairness. He also felt that he was not treated fairly by the judge. However, the court believed the evidence did not show that the judge was biased against him. The decisions made during the trial were consistent with legal practices. Coke said the judge gave him fines even though the jury did not decide on fines. The court agreed that the judge could impose fines even if the jury did not because the law allows it. Coke claimed that his lawyer did not do a good job and that this hurt his chance for a fair trial. The court found that since there were no significant mistakes made, the claims for ineffective counsel did not hold. Coke lastly argued that even if no single mistake was significant enough to reverse the decision, the total of all mistakes could warrant a new trial. The court decided that since they did not find any errors, this claim was also denied. In conclusion, the court affirmed the original decision, meaning Coke would remain convicted and serve his sentences as decided by the original trial.

F-2018-326

Post author:Staff
Post published:May 23, 2019
Post category:F

In OCCA case No. F-2018-326, #1 appealed his conviction for #stalking. In a (published) decision, the court decided #the State proved that the protective order was valid during the time of the incidents. #2 dissented.

F-2018-418

Post author:Staff
Post published:May 16, 2019
Post category:F

In OCCA case No. F-2018-418, Ebrima Tamba appealed his conviction for trafficking in illegal drugs. In an unpublished decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Ebrima Tamba was sentenced to twenty years in prison for his involvement in trafficking illegal drugs, specifically marijuana. Tamba felt that this sentence was too harsh. He argued that it was unfair because it was longer than the minimum penalty for the crime and that he had less marijuana than what the law required for a more serious charge. He also mentioned that since his arrest, the laws in Oklahoma changed, allowing people with a medical marijuana license to use marijuana legally. However, the court explained that even if laws changed after Tamba's crime, the new laws did not apply to his case. They noted that he was given a sentence that followed the laws in place when he committed the crime, and his sentence was within the legal limits. Tamba also claimed that his lawyer did not help him properly during the trial. He believed his attorney should have challenged how police stopped him and questioned whether the evidence used against him was acceptable. However, the court found that Tamba did not prove that his lawyer's actions negatively affected the outcome of his trial. In conclusion, the court decided that Tamba's twenty-year sentence was appropriate and that his lawyer provided adequate help during his trial. Therefore, his appeal did not lead to any changes in his case.

F-2018-167

Post author:Staff
Post published:May 16, 2019
Post category:F

In OCCA case No. F-2018-167, Roland G. Torgerson, Jr. appealed his conviction for Knowingly Concealing Stolen Property. In an unpublished decision, the court decided to affirm the acceleration of his deferred judgment and sentencing. One member of the court dissented. The case began when Torgerson entered a plea of nolo contendere (no contest) in 2015 for concealing stolen property. His sentencing was delayed for three years, during which time he was required to make payments for restitution and district attorney fees. However, he failed to make these payments, leading the State to request that his deferred judgment be accelerated. Torgerson admitted he had not made the payments and asked for more time to do so several times. His illness and difficulty finding work made it hard for him to pay. At the hearing, he stated that he was trying to get Social Security to help his financial situation. Despite his claims, the judge decided he had not done enough to show he was unable to make the payments, and therefore, he was sentenced to a five-year suspended sentence. Torgerson raised two main arguments in his appeal. First, he claimed the court was wrong to accelerate his sentence based on his failure to pay, stating that doing so violated his constitutional rights. Second, he argued that the five-year suspended sentence was too harsh. However, the court found that Torgerson had not proven he could not pay and ruled that the judge exercised proper discretion in his decision. Ultimately, the court affirmed the decision to accelerate Torgerson's sentencing, while one judge dissented and expressed concern that the failure to pay was more about his financial situation than a willful disregard of the court's orders.

F-2017-1270

Post author:Staff
Post published:April 18, 2019
Post category:F

In OCCA case No. F-2017-1270, Bryan James Abner appealed his conviction for several offenses. In an unpublished decision, the court decided to affirm the decision to terminate him from drug court and sentence him according to the plea agreement. One judge dissented. Bryan James Abner was involved in multiple criminal cases related to theft, guns, drugs, and burglary. He was given the chance to join a Drug Court program to help him with his drug addiction instead of going straight to prison. However, if he did not follow the rules of the program, he would be sentenced for his crimes. Abner did well in the Drug Court for the first six months, but then he started to have problems. He tested positive for methamphetamine several times, had legal troubles, and missed appointments. The State's attorney asked to terminate him from the Drug Court because of these issues. During the hearing, witnesses testified about Abner's behavior. One officer found drugs on him, and a supervisor explained that Abner had many chances to improve but did not make enough progress. Abner's counselor testified that he had learned from some difficult experiences, including the death of his son, and asked for another chance in the program. The judge decided against Abner, saying that despite what the counselor said, Abner's problems continued. She noted that he had broken the rules of the Drug Court many times and had not responded to the chances he had been given. In summary, the court ruled that Abner needed to be removed from the Drug Court program for not following the rules, and he was sentenced based on his plea agreement. The court found that the evidence supported this decision, and there was no abuse of discretion by the judge.

F-2017-1189

Post author:Staff
Post published:April 11, 2019
Post category:F

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.

RE-2017-484

Post author:Staff
Post published:April 4, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JERMAINE THRASH,** Appellant, **VS** **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2017-484** **Filed April 4, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Jermaine Thrash, appeals from the revocation of his ten-year suspended sentence in Case No. CF-2005-4341 in the District Court of Oklahoma County, by the Honorable Michelle D. McElwee, District Judge. On October 11, 2005, Appellant entered a plea of guilty to Count 1 - Rape in the First Degree; and Count 2 - Forcible Oral Sodomy. He was sentenced to fifteen years for each count with the first five years to be served and the remaining ten years suspended, with the sentences running concurrently. On September 29, 2015, the State filed an application to revoke Appellant's suspended sentence, alleging multiple violations of probation: testing positive for illegal drugs, failure to pay supervision fees, failure to participate in a sex offender treatment program, and possession of pornographic material. Appellant waived the twenty-day hearing requirement, and the hearings were subsequently continued several times to allow him to comply with probation requirements. The revocation hearing took place on May 1, 2017, before Judge McElwee. The State's witness, Megan Hicks, Appellant's probation officer, testified about Appellant's consistent failures to complete his probation requirements. She noted his non-participation in court-ordered sex offender treatment and multiple positive drug tests, including methamphetamines and cocaine, spanning over several months between 2015 and 2017. Notably, Appellant admitted to using drugs even shortly before the hearing. Appellant offered mitigation, arguing that he used drugs to cope with his circumstances as a convicted felon and sex offender. However, the court found that his continued drug use and failure to adhere to his probation terms constituted substantial violations. On appeal, Appellant asserts that his violations were merely technical and therefore do not justify the full revocation of his sentence. However, the ruling emphasizes that continued drug use while on probation is not merely a technical violation. The court noted that Appellant had numerous opportunities to comply with the probation requirements, and the trial judge's discretion in revoking the suspended sentence was upheld. **DECISION:** The order of the District Court of Oklahoma County revoking Appellant's ten-year suspended sentence in Case No. CF-2005-4341 is AFFIRMED. The MANDATE is ORDERED issued upon the filing of this decision. **APPEARANCES:** **FOR APPELLANT:** Kenda H. McIntosh Andrea Digilio Miller Oklahoma County Public Defender **FOR THE STATE:** Merydith Easter Mike Hunter Oklahoma County District Attorney Jennifer Miller Assistant Attorney General **OPINION BY:** KUEHN, V.P.J. **CONCUR:** LEWIS, P.J., LUMPKIN, J., HUDSON, J., ROWLAND, J. [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-484_1734711166.pdf)

F-2017-1259

Post author:Staff
Post published:April 4, 2019
Post category:F

In OCCA case No. F-2017-1259, Davis appealed his conviction for possession of a controlled dangerous substance, unlawful possession of drug paraphernalia, and driving with a suspended license. In an unpublished decision, the court decided to affirm the termination of Davis from the Drug Court program and upheld his sentencing. One judge dissented.

F-2017-970

Post author:Staff
Post published:April 4, 2019
Post category:F

In OCCA case No. F-2017-970, Angelica C. Coats appealed her conviction for several crimes including drug possession and obstruction of an officer. In an unpublished decision, the court decided to affirm the district court’s decision to accelerate her deferred judgment and sentence because she had violated probation by failing to pay required fees. One judge dissented, arguing that she was not willfully failing to pay because she had been declared indigent in court and there was no inquiry into her ability to pay.