McIntosh County

RE-2021-1042

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In OCCA case No. RE-2021-1042, Matthew Bryan Buttery appealed his conviction for a series of crimes including distribution of controlled substances and petit larceny. In a published decision, the court decided to affirm the revocation of his suspended sentence but ordered that his new sentence run concurrently with a prior sentence from another case. One judge dissented on the issue of how the sentences should relate to one another. Matthew Buttery had previously pled guilty to several charges. He was given a ten-year suspended sentence, which means he didn't have to serve time in prison at that moment but had to follow certain rules. If he broke any rules, the court could take back that suspended sentence and send him to prison. The state claimed that Buttery did not report as required, did not pay his probation fees, and committed a new crime, for which they wanted to revoke his suspended sentence. During the hearing, the court found Buttery had violated the terms of his probation and revoked his suspended sentence. Buttery argued that the court made a mistake by not giving him credit for time he had already served and by ordering that his new sentence run after a different sentence from another county. The court explained that it had the right to revoke Buttery's suspended sentence because he violated the rules. They stated they didn't have to give him credit for time served because the suspended sentence is not changed by the violation. They also found that the judge improperly decided his new sentence would run after the one from the other county rather than at the same time. The judges clarified that when a sentence is revoked, it should not change how sentences from different cases affect each other. In the end, Buttery's appeal led to some changes. The court ordered that his new sentence should run concurrently, meaning he would serve them at the same time, rather than one after the other. However, the court upheld the overall decision to revoke his suspended sentence for breaking the rules of his probation. One judge agreed with the decision to affirm the revocation but disagreed with other parts of the analysis regarding the relationship between the sentences. So, to summarize, the main points from the case are that Matthew Bryan Buttery's suspension was revoked because he violated probation rules, but the court made a mistake when deciding how his new sentence should relate to an older sentence. He is to serve them at the same time now, according to the latest court ruling.

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F-2016-1030

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In OCCA case No. F-2016-1030, David Deval Martin appealed his conviction for First Degree Murder. In a published decision, the court decided to reverse the conviction and remand the case for dismissal. No one dissented. David Deval Martin was found guilty of First Degree Murder after a jury trial in McIntosh County. The judge sentenced him to life in prison without the chance of parole. Martin argued that the court did not have the authority to try him because he is a member of the Muscogee (Creek) Nation, and the crime occurred on tribal land. The court looked at an important case called McGirt v. Oklahoma, which helped answer Martin’s questions about his status as an Indian and where the crime took place. They sent the case back to the local court for a closer look. There, it was determined through evidence that Martin is a member of the Creek Nation with some Indian blood, and the crime occurred within the Creek Nation’s territory. After the local court reviewed the evidence and found in favor of Martin, both sides agreed on important facts about his identity and where the crime occurred. Because of this, the higher court concluded that the state of Oklahoma did not have the right to prosecute Martin under these circumstances. As a result, they overturned the conviction and told the lower court to dismiss the charges against him.

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F-2017-336

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In OCCA case No. F-2017-336, Bea Ann Epperson appealed her conviction for two counts of Embezzlement of Building Trust. In an unpublished decision, the court decided to reverse her convictions and remand the case with instructions to dismiss. One judge dissented. Bea Ann Epperson was found guilty in a trial without a jury for embezzling money related to a building trust. She was sentenced to five years in prison for each count, but her sentences were suspended, meaning she wouldn’t serve time unless she violated certain conditions. Epperson believed that the court did not have the right to try her case because she is a member of the Cherokee Nation, and the victims might be part of the Creek Nation, with the crimes happening on Creek Reservation land. This argument was connected to a U.S. Supreme Court decision called McGirt v. Oklahoma, which deals with whether certain areas are considered Indian Country. The questions involved were Epperson's Indian status, the status of the victims, and the location of the crimes. Because these questions needed more fact-finding, the case was sent back to the District Court. At a hearing to gather more details, it was determined that Epperson had some Indian blood (3/64th degree) and was recognized as a member of the Cherokee Nation. It was also confirmed that the crimes took place within the boundaries of the Creek Reservation. The court accepted these agreements made by both sides regarding what the evidence would show. In a later brief, the State supported the District Court’s findings, but wanted time to consider whether to file new charges against Epperson. After reviewing everything, the court agreed Epperson had shown she was an Indian and that the crimes happened in Indian Country, thus the State of Oklahoma did not have the right to try her. The court reversed the judgment of Epperson's convictions and sent the case back to be dismissed, meaning she wouldn't face charges for the embezzlement anymore.

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C-2019-263

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In OCCA case No. C-2019-263, Floyd Joseph Ball, Jr. appealed his conviction for Rape in the First Degree and Kidnapping. In an unpublished decision, the court decided that the State of Oklahoma did not have the right to prosecute Ball because he is considered an Indian under federal law, and the crimes occurred in Indian Country. The judgment and sentence were reversed, and the case was remanded to the District Court with orders to dismiss it. One judge dissented from this decision.

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RE-2019-57

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In the Court of Criminal Appeals of the State of Oklahoma, Toni Lynn Cook appeals the revocation of her suspended sentence from the McIntosh County District Court. Cook had originally pled guilty to the charge of Obstructing an Officer. Following her guilty plea, the State filed a Motion to Revoke her suspended sentence, claiming she committed new crimes while on probation, which included multiple counts of Assault and Battery on a Police Officer and Indecent Exposure. The revocation hearing saw evidence presented, including testimonies from jailers detailing that Cook had exposed herself and physically resisted their attempts to move her to a solitary cell, leading to injuries to the officers involved. The trial court found that the State met its burden to show by a preponderance of the evidence that Cook had violated her probation. Cook raised several propositions on appeal: 1. **Insufficient Evidence**: Cook argued that the evidence presented was insufficient to prove the alleged probation violations. However, the court found that the evidence sufficient and credible, affirming that the trial judge did not abuse his discretion. 2. **Waiver of Hearing Within Twenty Days**: Cook contended that her waiver of the right to a hearing within twenty days was not valid. The court ruled that Cook had waived this right knowingly, as she had not requested an early hearing and did not provide evidence that she was unaware of this right. 3. **Excessiveness of Revocation**: Cook argued the revocation was excessive. The court noted that revocation is a matter of grace, and since Cook committed multiple new offenses while on probation, the trial judge's decision to revoke her sentence in full was not an abuse of discretion. In conclusion, the Court of Criminal Appeals affirmed the trial court’s decision to revoke Cook's suspended sentence, finding no merit in her claims. The mandate was ordered to be issued upon filing the decision.

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J-2018-1066

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**Court of Criminal Appeals of the State of Oklahoma** **Case No. J-2018-1066** **Decided on: August 8, 2019** **A.O. (Appellant)** **v.** **The State of Oklahoma (Appellee)** **Opinion of the Court by Presiding Judge Lewis:** **Background:** The appellant, A.O., a minor, was charged as a juvenile with Sexual Battery per 21 O.S. Supp. 2017, § 1123(B) in McIntosh County District Court (Case No. JDL-2017-29). Subsequently, on February 26, 2018, an Amended Delinquent Petition was filed, charging him with Child Sexual Abuse under 21 O.S. Supp. 2014, § 843.5(E). Following a non-jury trial held on September 25, 2018, the court adjudicated A.O. as delinquent. **Issues on Appeal:** 1. A.O. contends he was never informed of his right to a jury trial, claiming a violation of due process. 2. He argues that the conduct in question—touching the victim's buttocks over clothing—does not constitute Child Sexual Abuse as intended by the legislature. 3. A.O. claims the prosecutor expressed an opinion on his guilt, violating his due process rights. **Rulings:** 1. **Proposition I**: The court found no merit in A.O.'s claim regarding his jury trial rights. The record demonstrated that both A.O. and his guardian were informed of the right to a jury trial and that they consciously waived this right. 2. **Proposition II**: On this issue, the court ruled in favor of A.O. The court determined that the state failed to prove each element of the underlying crime of Child Sexual Abuse. Specifically, the court stated that to convict under § 843.5(E), the state bears the burden of proving the elements of lewd acts, which were not sufficiently demonstrated in court. 3. **Proposition III**: The court found the prosecution's remarks during the trial did not constitute plain error, as the comments related to the evidence presented and did not deprive A.O. of a fair trial. **Final Decision:** The adjudicating order of Child Sexual Abuse was **REVERSED**. The matter is **REMANDED** to the district court to amend the adjudication to Assault and Battery under 21 O.S. 2011, § 644. The court affirmed the adjudication as modified. **Dissenting Opinion by Vice Presiding Judge Kuehn:** Judge Kuehn expressed concerns about the implications of the majority ruling, arguing that it effectively renders § 843.5(E) unconstitutional due to its vagueness and conflict with age-based elements in other statutes, which could lead to arbitrary enforcement. The dissent maintains that the elements of § 843.5(E) should not require additional instructions unless those elements are included in the Information—and calls for the conviction to be reversed entirely based on the statute's broad language, which might punish conduct that is arguably not criminal. In conclusion, the court's ruling finds resonance in the legislative intention behind the statutes governing Child Sexual Abuse and the need for clarity in legal definitions, especially concerning age restrictions in sexual offenses. **Links:** [Download PDF of the Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/J-2018-1066_1734449875.pdf)

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RE-2018-630

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CHRISTOPHER CHARLES DOWNUM,** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-630** **FILED JUN 20 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **HUDSON, JUDGE:** On July 14, 2017, Appellant Downum, represented by counsel, entered a plea of nolo contendere to a charge of Malicious Injury to Property in McIntosh County Case No. CM-2017-317. Downum was sentenced to one (1) year in the McIntosh County jail, all suspended, subject to terms and conditions of probation. On October 18, 2017, the State filed a Motion to Revoke Downum's suspended sentence alleging he committed the new offenses of Public Intoxication and Obstructing An Officer in McIntosh County Case No. CM-2017-457. The District Court of McIntosh County, presided over by the Honorable James D. Bland, held a combined revocation hearing and preliminary hearing on May 31, 2017, and revoked ten (10) days of Downum's suspended sentence in Case No. CM-2017-317. From this Judgment and Sentence, Downum appeals with the following propositions of error: 1. The trial court used the wrong legal standard in revoking Downum's suspended sentence. 2. The evidence was insufficient to show that Downum committed the acts of public intoxication and obstructing an officer. 3. The sentence imposed by the trial court is excessive. The revocation of Downum's suspended sentence is **AFFIRMED**. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. The Court examines the basis for the factual determination and considers whether the court abused its discretion. Downum agues in Proposition I that Judge Bland used the wrong standard in revoking his suspended sentence by confusing the burden of proof for revoking a suspended sentence with that required for a preliminary hearing. This concern relates to Proposition II, where Downum claims there was insufficient evidence even if the appropriate standard had been applied. However, alleged violations of conditions of a suspended sentence need only be proven by a preponderance of the evidence. The Court finds no evidence in the appeal record supporting Downum's claim that Judge Bland did not apply the correct standard. The record shows competent evidence was presented at the revocation hearing, allowing the court to determine, by a preponderance of the evidence, that Downum violated his probation terms. Consequently, Propositions I and II are denied. In Proposition III, Downum argues that the ten-day revocation is excessive, citing no supporting authority. The Court has established that violation of any condition of probation can justify revocation of a suspended sentence. No abuse of discretion is found in Judge Bland's decision to revoke ten days of Downum's suspended sentence. **DECISION** The order of the District Court of McIntosh County revoking ten (10) days of Appellant's suspended sentence in Case No. CM-2017-317 is **AFFIRMED**. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF MCINTOSH COUNTY** **THE HONORABLE JAMES D. BLAND, DISTRICT JUDGE** **APPEARANCES AT TRIAL** WARREN GOTCHER GOTCHER & BEAVER 323 E. CARL ALBERT PKWY. P.O. BOX 160 MCALESTER, OK 74502 COUNSEL FOR APPELLANT **APPEARANCES ON APPEAL** WARREN GOTCHER GOTCHER & BEAVER 323 E. CARL ALBERT PKWY. P.O. BOX 160 MCALESTER, OK 74502 COUNSEL FOR APPELLANT GREGORY R. STIDHAM ASST. DISTRICT ATTORNEY MCINTOSH COUNTY 110 NORTH FIRST STREET EUFAULA, OK 74432 COUNSEL FOR THE STATE MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA THEODORE M. PEEPER ASST. ATTORNEY GENERAL 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. **LEWIS, P.J.: CONCUR** **KUEHN, V.P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **ROWLAND, J.: CONCUR** **[END OF DOCUMENT]** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-630_1734428440.pdf)

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RE-2018-128

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In the Court of Criminal Appeals of the State of Oklahoma, Milton Roger Hornsby appealed the revocation of his suspended sentence from the McIntosh County District Court, overseen by Judge James D. Bland. This appeal arose from convictions in two cases, CF-2012-45 and CF-2012-60, covering multiple charges including possession of a firearm after conviction and assault with a dangerous weapon. Hornsby initially received a twenty-year suspended sentence for one charge and six-month suspended sentences for others, all to be served concurrently. The State's motion to revoke the suspended sentences, filed on September 19, 2016, was due to an alleged new crime involving assault and battery with a dangerous weapon. Following a hearing on December 29, 2016, Judge Bland revoked ten years of Hornsby's suspended sentences. Hornsby raised several legal arguments on appeal: 1. **Burden of Proof**: He argued that Judge Bland imposed a lower burden of proof than required. However, the court affirmed that Judge Bland properly articulated the standard during the hearing, which was that the State needed to show it was more likely than not that Hornsby violated his probation. 2. **Suppressed Evidence**: Hornsby contended that evidence pertaining to the use of a knife, previously suppressed in a related case, was improperly considered at the revocation hearing. The court noted that Hornsby did not object during the hearing and thus waived his right to raise this issue on appeal apart from claiming plain error, which he failed to establish. 3. **Intent to Harm**: Hornsby claimed there was insufficient evidence to prove he intended to inflict bodily harm. The court stated that the evidence presented was sufficient to suggest that it was more likely than not that Hornsby had such intent. 4. **Cumulative Errors**: Lastly, Hornsby argued that the accumulation of errors deprived him of a fair hearing. The court found no merit in this argument, as each proposition raised was without merit. The Court concluded that there was no abuse of discretion in Judge Bland's decision to revoke the suspended sentence, affirming the revocation. The mandate was ordered to issue following the filing of the decision.

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S-2013-103

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In OCCA case No. S-2013-103, Uriel Alajandro Lopez and Maria Magana appealed their conviction for Trafficking in Illegal Drugs. In an unpublished decision, the court decided to affirm the district court's ruling which granted a motion to suppress evidence. One judge dissented. Lopez and Magana were charged in McIntosh County after Trooper Koch stopped their vehicle. Before the trial started, they filed to suppress evidence related to the traffic stop and the search of their vehicle. The district court agreed and granted their motions, leading the state to appeal. The state argued two main points for the appeal. First, they believed the trooper had a valid reason to stop the vehicle, claiming that Magana broke traffic laws by following another vehicle too closely and failing to move for an emergency vehicle. However, the court found that the trooper's basis for the stop was questionable because the laws did not support his reasoning. The trooper said Magana was driving less than two seconds behind a truck, which he thought was unsafe. But he was unable to prove that this was a valid reason under the law. The rules of driving were not clear enough to justify his stop. The court noted that the trooper’s idea of a two-second rule was not mentioned in the traffic laws, which made it hard to understand if there was any real violation. The court also looked at a second reason the state provided, which was that the trooper had seen Magana not move to the left lane for an emergency vehicle. However, the trooper didn’t take any action based on this perceived violation when he stopped the car. Since this point wasn't strongly developed during the hearing, the court didn’t consider it either. Second, the state argued that searching the vehicle was legal because of signs of criminal activity and the consent given by both Lopez and Magana. But since the first argument about the stop was not valid, the search did not hold up in court. Therefore, the appeal was denied and the decision to suppress the evidence was upheld. In conclusion, the court agreed with the district court's decision to grant the motion to suppress, stating that the trooper did not have a good reason for the stop. The opinion from the court was not published for public record, but it reinforced the importance of adhering to the rules of evidence and the proper procedures during traffic stops.

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F-2004-410

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In OCCA case No. F-2004-410, Twyla Tanner appealed her conviction for Embezzlement by Bailee. In an unpublished decision, the court decided to affirm the conviction but modify the sentence from forty-five years to twenty years of imprisonment. One judge dissented regarding the sentence modification. Twyla Tanner was found guilty after a jury trial. The court had to decide on several issues raised by Tanner regarding her trial, including errors in denying her motion for a new trial, not allowing a witness to testify, the sufficiency of evidence, the length of her sentence, and whether all of these issues combined affected her right to a fair trial. The court determined that the trial judge made the right choices in handling these issues. They agreed that Tanner’s request for a new trial was not given because it was late. They also supported the judge's decision to prevent a witness from testifying because Tanner did not follow the rules for sharing her evidence in time. The court found enough evidence for the jury to decide she was guilty of stealing. However, they thought that the original sentence of forty-five years was very harsh for the crime and the situation. They changed it to twenty years in prison after considering the facts, including that she did not cause any damage and returned the vehicle she was accused of embezzling. One judge disagreed with reducing Tanner's sentence, believing that the jury's decision was justified based on her past criminal record and that the prosecution's comments during the trial did not unfairly influence the jury.

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F-2002-899

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In OCCA case No. F-2002-899, Edward John VanWoundenberg appealed his conviction for Driving While Under the Influence (DUI) after having two or more previous convictions. In an unpublished decision, the court decided to affirm the conviction and sentence. One judge dissented. VanWoundenberg was found guilty of DUI in a trial where a jury sentenced him to twenty years in prison. He raised several arguments in his appeal. He argued there were mistakes in the jury instructions, his sentence should be changed, a clerical error needed to be fixed, and that the combined effect of all the mistakes denied him a fair trial. The court reviewed all the information from the trial. It decided that VanWoundenberg’s case did not need to be reversed or changed, but there was a clerical mistake in the court documents that had to be corrected. The court found that the evidence did not support giving the jury instructions about lesser charges, and so the trial court acted correctly by not providing those instructions. VanWoundenberg also argued that his felony DUI sentence should not have been increased under a general law since it had already been raised under a specific DUI law due to his previous offenses. The court explained that it was legal to enhance (or increase) his sentence using a general law because he had many previous different felony convictions within the required time. The court pointed out that one of VanWoundenberg's arguments was mistaken; the rules allowed for both the specific and general laws to apply in his case. Finally, the court amended the total costs listed in the original court documents to a lesser amount due to a fee that should not have been included. In the end, the court confirmed VanWoundenberg's conviction and corrected the clerical error, but found no other issues that needed to change the outcome of the case.

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