Muskogee County

C-2020-691

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In OCCA case No. C-2020-691, Raheem Travon Walker appealed his conviction for Assault and Battery on an Employee of a Juvenile Detention Facility. In an unpublished decision, the court decided to grant Walker's request to withdraw his guilty plea and go to trial. One judge dissented. To explain further, Walker was 17 years old when he pleaded guilty to the crime. He entered into a deal, thinking he would be part of a special program for young adults where his sentence would be delayed. However, later it was discovered that he was not eligible for this program due to a past juvenile record for robbery. Because of this ineligibility, the judge gave him a different sentence, which he believed was not what he had agreed to. After realizing that he did not get what he had bargained for, Walker asked if he could change his mind about the plea. A hearing took place, but his request was denied. He then appealed the decision, arguing that he was not helped properly by his lawyer during the process. The court found that he had a valid point since he entered the agreement expecting specific benefits, which were not provided. Because of this, the court decided he should have another chance and allowed him to withdraw his guilty plea. The dissenting opinion argued that Walker had not raised the issue of not having a proper plea form and thus had waived that right. They believed there was no mistake about the plea agreement and questioned whether Walker's claim had enough basis to warrant this new decision. Regardless, the majority found that Walker’s concerns about his plea and the sentence should be addressed by allowing him to go to trial.

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F-2017-357

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In OCCA case No. F-2017-357, Shawn Lee McDaniel appealed his conviction for First Degree Murder. In an unpublished decision, the court decided to vacate the judgment and sentence, remanding the matter with instructions to dismiss. The main issue in this case was whether the victim was considered an Indian under federal law and whether the crime took place in Indian country, which is defined as land within the boundaries of Indian reservations. Both questions were answered affirmatively. The court looked to a previous case, McGirt v. Oklahoma, which established that certain lands in Oklahoma were still recognized as Indian reservations under federal law. McDaniel’s appeal was based on the fact that the murder occurred within the historic boundaries of the Cherokee Nation and that the victim was a recognized member of the Cherokee Nation at the time of his death. The court remanded the case to a lower court, which found that both of these conditions were true, meaning federal, not state, authorities had jurisdiction over the case. The court’s decision concluded that since the crime fell under the federal jurisdiction, the state of Oklahoma did not have the authority to prosecute McDaniel. Consequently, the judgement was vacated, and the matter was directed to be dismissed. While most judges agreed with the results, there were dissenting opinions which expressed concern and highlighted issues within the majority opinion, particularly regarding its adherence to historical precedents and the implications of McGirt's ruling.

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F-2019-588

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In OCCA case No. F-2019-588, Ricky Eugene Spencer appealed his conviction for two counts of Shooting with Intent to Kill. In an unpublished decision, the court decided to vacate the judgment and sentence and remand the case for a new trial. One judge dissented. Ricky Eugene Spencer was found guilty of shooting at two people, which led to his conviction. The trial took place in Muskogee County, where the jury decided on a twenty-year sentence for each count. However, the judge allowed for some of that time to be suspended and had conditions for probation. During his appeal, Spencer raised several issues, but one stood out: the jury was given the wrong instructions about transferred intent. This is a legal concept that says if someone means to hurt one person but accidentally hurts someone else, the intent to harm can still apply to the actual victim. The court found there was indeed an error in how the jury was instructed. Spencer did not challenge the instruction during the trial, so the court reviewed the mistake under plain error, meaning it was an obvious error that affected the fairness of the trial. The judge explained that the jury was incorrectly told they could find Spencer guilty of intent to kill based on a lesser intention to injure or scare someone else. This meant they could convict him without the proof needed for a serious crime like shooting with intent to kill. The prosecution argued that Spencer aimed to kill one person and mistakenly shot two bystanders. However, the trial's instructions could have allowed the jury to convict him based on weaker proof than required. During discussions, the jury showed they weren't completely convinced, asking questions that suggested they were unsure. The prosecutor's arguments during the trial also emphasized the wrong aspects of the law, pushing the jury toward an improper conclusion. Overall, the court could not be sure that the jury understood what they needed to prove. Therefore, they ruled that the error affected Spencer's rights significantly, requiring a new trial to ensure fairness. The decision means that Spencer would get another chance to defend himself in court, as the guidelines for convicting him were not properly explained the first time.

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RE-2018-1233

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In OCCA case No. RE-2018-1233, Joice appealed his conviction for obtaining cash or merchandise by bogus check/false pretenses. In an unpublished decision, the court decided to vacate the order revoking Joice's suspended sentence and remanded the case to the District Court with instructions to dismiss the State's application to revoke with prejudice. One judge dissented. Joice had originally entered a guilty plea in 2013 for writing a bogus check and received a twenty-year sentence, which was all suspended, meaning he would not serve time in prison if he followed the rules of his probation. However, in 2018, the State claimed he broke the rules of his probation and sought to revoke his suspended sentence. During the hearings, Joice argued that the original sentence was too long and that the State filed their application to revoke his probation too late. He also said his lawyer did not help him properly by not questioning the judge’s decision to revoke his sentence. The court agreed there were major issues with his original sentence and that the State was too late in trying to revoke it. They found that Joice did not get good legal help at his revocation hearing. Since the court recognized that the original sentence was illegal and the State's request to change it came too late, they decided to dismiss the application to revoke Joice’s probation. This means he won't have to serve time because the conditions under which his probation could be revoked were not met correctly.

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F-2019-224

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSEPH EUGENE DEAN,** **Appellant,** **V.** **STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2019-224** --- **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant, Joseph Eugene Dean, was tried and convicted by a jury in Muskogee County District Court, Case No. CF-2017-1030, of Endangering Others While Eluding or Attempting to Elude Police Officer, After Former Conviction of Two or More Felonies (Count 2), in violation of 21 O.S.2011, § 540(B). The jury recommended a sentence of twenty years imprisonment and a $2,500.00 fine. The Honorable Bret A. Smith, District Judge, presided at trial and sentenced Dean in accordance with the jury's verdict, including various costs and fees. The jury acquitted Appellant of Count 1 - Possession of a Stolen Vehicle. Dean appeals, raising the following proposition of error: **I. APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7, AND 20, OF THE OKLAHOMA CONSTITUTION.** After thorough consideration of the record, including transcripts and the parties' briefs, we find that no relief is warranted. **Proposition I:** Dean asserts that defense counsel was ineffective for failing to request a cautionary eyewitness identification instruction (OUJI-CR (2d) 9-19). However, Dean fails to provide relevant authority or argument supporting his claim, thus forgoing appellate review of the issue as per Rule 3.5(C)(6) of the Oklahoma Court of Criminal Appeals. Moreover, we alternatively reject Dean's ineffectiveness claim on its merits. To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced his defense (Strickland v. Washington, 466 U.S. 668, 687 (1984)). In this case, a cautionary eyewitness identification instruction was unwarranted as no serious question exist[ed] concerning the reliability of the [eyewitness's] identification[s] (Robinson v. State, 1995 OK CR 25, ¶ 56, 900 P.2d 389, 404). Counsel’s failure to request such instruction, therefore, was not ineffective since there was no merit to such a request (Logan v. State, 2013 OK CR 2, ¶ 11, 293 P.3d 969, 975). **DECISION** The Judgment and Sentence of the District Court is AFFIRMED. **MANDATE** is ORDERED issued upon the delivery and filing of this decision, pursuant to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals. --- **APPEARANCES:** **AT TRIAL:** LARRY VICKERS 600 Emporia, Suite B Muskogee, OK 74401 COUNSEL FOR DEFENDANT **ON APPEAL:** DERECK J. HURT Oklahoma Indigent Defense System P.O. Box 926 Norman, OK 73070 COUNSEL FOR APPELLANT SEAN WATERS Asst. District Attorney Muskogee District Attorney's Office 220 State Street Muskogee, OK 74401 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. LEWIS, P.J.: CONCUR KUEHN, V.P.J.: CONCUR LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-224_1734779625.pdf)

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F-2018-823

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **UBALDO HERNANDEZ,** **Appellant,** **vs.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-823** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 30 2020** **JOHN D. HADDEN** **CLERK** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Ubaldo Hernandez, was convicted by a jury in the Muskogee County District Court, Case No. CF-2016-608, of Child Sexual Abuse. On August 8, 2018, the Honorable Thomas H. Alford, District Judge, sentenced him to thirty years imprisonment, in accordance with the jury's recommendation. He must serve 85% of this sentence before parole consideration. (21 O.S.Supp.2015, § 13.1(14)). **Propositions of Error:** Appellant raises four propositions of error in support of his appeal: **PROPOSITION I:** Admission of other bad acts evidence prejudiced the jury and denied Mr. Hernandez a fair trial. **PROPOSITION II:** Mr. Hernandez was denied a fair trial due to prosecutorial misconduct. **PROPOSITION III:** Mr. Hernandez received ineffective assistance of counsel. **PROPOSITION IV:** The accumulation of errors deprived Mr. Hernandez of a fair proceeding. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. **Case Overview:** Appellant was convicted of sexually abusing his daughter over several years. In Proposition I, he contends the trial court erred in admitting various references to other bad acts. Since there was no objection to most evidence presented, we review for plain error. The allegations arose years after the abuse began. The defense strategy involved questioning the victim's credibility due to her delay in reporting. The victim testified about Appellant's controlling nature, drinking, and family dynamics to explain this delay. The evidence cited by Appellant primarily relates to corroborative testimony from family members regarding Appellant's behavior, which aligns closely with the victim’s testimony. The trial court instructed the jury on the limited use of bad-acts evidence. Thus, admitting the accounts of Appellant's behavior did not constitute plain error. **Proposition II:** Appellant cites instances of prosecutorial misconduct. However, there were no objections to these comments, resulting in plain error review. His claims about comments diminishing the presumption of innocence are inadequately specified. The prosecutor’s efforts to rehabilitate a witness's credibility were not improper given the context of the defense's portrayal of her. In summary, there was no reasonable probability that the prosecutor's comments affected the trial's outcome. **Proposition III:** Appellant claims ineffective assistance of counsel on multiple grounds. To prevail, one must demonstrate both deficient performance and resulting prejudice. The claims related to ensuring a complete record and failing to object to alleged misconduct fail due to a lack of demonstrated prejudice impacting the trial's outcome. **Proposition IV:** Having reviewed the evidence, we find no accumulation of error which would warrant relief. **DECISION:** The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED. **ORDERS:** Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. **ATTORNEYS:** - **ANDREW HAYES,** Counsel for Defendant - **WYNDI THOMAS HOBBS,** Deputy Division Chief - **NALANI CHING,** Counsel for Appellee - **MIKE HUNTER,** Attorney General of Oklahoma **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR IN RESULTS **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-823_1735212863.pdf)

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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-2018-616

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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-2018-867

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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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RE-2018-868

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**FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **IN THE COURT OF CRIMINAL APPEALS / OF THE STATE OF OKLAHOMA** **SEP 12 2019** **JOHN D. HADDEN** **CLERK** --- **MISTY DAWN BARRETT,** **Appellant,** **V.** **No. RE-2018-868** **THE STATE OF OKLAHOMA,** **Appellee.** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Misty Dawn Barrett appeals from the revocation of her suspended sentences in Muskogee County District Court Case Nos. CF-2016-439, CF-2017-126, CF-2017-127, and CF-2017-129. Appellant faced multiple charges across these cases, including Possession of a Controlled Dangerous Substance, Larceny of an Automobile, and Identity Theft, among others. After entering pleas and being convicted, she received several sentences which were subsequently suspended to be served concurrently. The State filed an Application to Revoke Suspended Sentence in all four cases, leading to a partial revocation of five years of her suspended sentences on October 25, 2017. A second Application to Revoke was filed on July 25, 2018, for new alleged crimes, leading to a revocation hearing where the trial court, presided over by Judge Mike Norman, revoked her remaining suspended sentences in full. In her appeal, Appellant argues that the full revocation was excessive, asserting that her past actions should have been anticipated due to her struggles with drug addiction, and claiming that incarceration is not an effective remedy for her situation. The decision to revoke a suspended sentence falls within the sound discretion of the trial court. A revocation will not be disturbed absent a clear abuse of that discretion (Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565). The State established sufficient grounds for revocation through competent evidence presented during the hearing. Appellant had previously benefited from leniency when only part of her suspended sentence was revoked. After reoffending post-incarceration, Appellant demonstrated that a suspended sentence is a privilege rather than a right (Hagar v. State, 1999 OK CR 35, ¶ 8, 990 P.2d 894, 897). **DECISION** The full revocation of Appellant's suspended sentences in Muskogee County District Court Case Nos. CF-2016-439, CF-2017-126, CF-2017-127, and CF-2017-129 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 to be issued upon the filing of this decision. --- **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY, THE HONORABLE MIKE NORMAN, DISTRICT JUDGE** **APPEARANCES AT REVOCATION** **DANIEL MEDLOCK** 620 W. BROADWAY MUSKOGEE, OK 74401 **COUNSEL FOR DEFENDANT** **APPEARANCES ON APPEAL** **NICOLLETTE BRANDT** P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR APPELLANT** **TIMOTHY KING** ASST. DISTRICT ATTORNEY 220 STATE ST. MUSKOGEE, OK 74401 **COUNSEL FOR STATE** **MIKE HUNTER** OKLA. ATTORNEY GENERAL **CAROLINE HUNT** ASST. ATTORNEY GENERAL 313 N.E. 21st STREET OKLAHOMA CITY, OK 73105 **COUNSEL FOR APPELLEE** --- **OPINION BY:** KUEHN, V.P.J. **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR RA/F --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-868_1734360560.pdf)

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RE-2018-155

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

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S-2018-521

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In OCCA case No. F 2017-1074, Brown appealed his conviction for Drug Court termination. In an unpublished decision, the court decided to affirm the termination, stating the trial court acted within its discretion. One judge dissented.

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C-2017-1050

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**Court of Criminal Appeals of Oklahoma Summary Opinion** **David Neil Dunn v. The State of Oklahoma** **Case No. C-2017-1050** **Filed November 8, 2018** **Summary:** The Oklahoma Court of Criminal Appeals reviewed the case of David Neil Dunn, who sought to withdraw his no contest plea for various serious charges. Dunn appealed on the basis that he was denied his due process right to be present during the evidentiary hearing on his motion to withdraw the plea, and claimed ineffective assistance of counsel. **Key Points:** 1. **Charges and Plea**: Dunn was charged with multiple felonies, including First Degree Robbery and Burglary. He entered a blind plea of no contest, which resulted in significant prison sentences. 2. **Motion to Withdraw Plea**: Dunn filed a motion to withdraw his plea shortly after sentencing, claiming various legal grounds, including concerns about the validity of his plea. An evidentiary hearing was held, but Dunn was not present as he had been transported to the Department of Corrections. 3. **Court's Ruling**: The Court found that Dunn had a due process right to be present during this critical stage of the proceedings. The absence of Dunn hindered a fair and just hearing, particularly concerning his claims about the voluntariness of his plea. 4. **Counsel’s Role**: The court clarified that defense counsel's belief that Dunn's presence was unnecessary does not equate to a valid waiver of his right to be present. The decision emphasized that Dunn's testimony was crucial for effectively contesting the plea's validity. 5. **Outcome**: The Court granted Dunn's petition for certiorari and remanded the case back to the District Court for a proper evidentiary hearing on his motion to withdraw the plea, ensuring he would be present. 6. **Dissenting Opinion**: One judge dissented, arguing that the absence of Dunn did not constitute a violation of his rights, noting that his counsel had effectively represented him at the hearing. It was contended that the procedural complexities of representation should not be interpreted as waivers of due process. **Conclusion**: The Court ruled in favor of Dunn, stressing the importance of a defendant's presence in legal proceedings, particularly when their rights and pleas are being challenged, which underscores the principles of fairness and due process within the judicial system. For a detailed reading, [click here to download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2017-1050_1733996496.pdf).

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F-2017-994

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In OCCA case No. F-2017-994, Holly Tegan Zuniga-Griffin appealed her conviction for Enabling Child Abuse. In an unpublished decision, the court decided to affirm her conviction. One judge dissented. The case involved Holly Tegan Zuniga-Griffin, who was found guilty of enabling the abuse of her three-year-old son. The jury in Muskogee County decided she was guilty of this crime based on the evidence presented during the trial. She was sentenced to ten years in prison, following the jury's recommendation. Zuniga-Griffin raised several issues in her appeal. First, she argued that the law regarding child abuse was unclear and vague. However, the court found no reason to change its previous decisions on this issue and denied her claim. Next, she claimed there wasn't enough evidence to prove she understood her child was in danger when she left him with her 17-year-old boyfriend. The court disagreed, stating there was enough evidence to show she should have known her child was at risk. Zuniga-Griffin had made inconsistent statements about how her son got hurt, and medical evidence indicated he had been physically abused. She also said she was denied a fair trial because the judge didn't instruct the jury properly. The court acknowledged that some jury instructions could have been appropriate, but overall, they did not think this affected the trial's fairness. Another point she raised was about a nurse giving an opinion in court when she didn't have the right qualifications. The court found that the nurse did have enough training and experience to testify about the injuries on the child, so they disagreed with Zuniga-Griffin's claim. Zuniga-Griffin contended that the prosecution failed to provide important evidence that could have helped her case. However, the court concluded that she was aware of the photos in question during the trial and did not attempt to use them, dismissing her argument. She also claimed her lawyer did not do a good job representing her, which negatively impacted her trial. But the court found her lawyer's decisions were reasonable and did not affect the outcome. Zuniga-Griffin then argued that her ten-year sentence was excessively harsh. The court noted that her son had suffered serious injuries, and her sentence was within what the law allowed, so they did not find it shocking. Finally, she stated that all the errors combined during the trial made it unfair. The court determined that the errors she identified did not, either separately or together, undermine her right to a fair trial. In the end, the decision of the trial court was upheld, meaning Zuniga-Griffin would serve her sentence as originally decided.

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RE-2016-929

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In OCCA case No. RE 2016-1019, the appellant appealed his conviction for home repair fraud and robbery by force of fear. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but required the district court to modify its orders to reflect that the sentences should run concurrently. One judge dissented. Jerry Lynn Clemons pleaded guilty to home repair fraud and robbery in Muskogee County. He was given suspended sentences, meaning he wouldn't go to jail if he followed certain rules, which included reporting to a probation officer and paying fines. However, the state said Clemons didn't follow these rules by not reporting and changing his address without telling his probation officer. This led to a revocation hearing where the judge decided to enforce his suspended sentences. Clemons argued that he wasn't properly informed about the reasons for revoking his sentence. He also raised concerns about not being given enough evidence of his alleged failures, and about a mistake in the length of his punishment for the misdemeanor charge. Ultimately, some of his arguments were accepted, especially regarding sentencing errors, but the court found enough evidence to support the revocation of his sentence based on his failure to report and violating other conditions. The court directed that the modified orders clarify that the sentences were to be served at the same time instead of one after the other. Clemons also claimed that his lawyer did not help him properly, which might have affected his defense. However, the court concluded that Clemons did not prove this claim sufficiently. In summary, while the court agreed to fix some mistakes in his sentencing, it still upheld the decision to revoke his suspended sentences due to the established violations.

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RE 2016-1019

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In OCCA case No. RE 2016-1019, Jerry Lynn Clemons appealed his conviction for Home Repair Fraud and other charges. In a published decision, the court decided to affirm the revocation of his suspended sentences but directed the District Court to modify the orders so that the sentences would run concurrently. The dissenting opinion was not specified. Here's a simplified summary of what happened: Jerry Clemons was found guilty in two cases. He pleaded guilty to Home Repair Fraud in one case and robbery and property damage in another. He was given suspended sentences, meaning he would not go to prison if he followed rules and conditions of probation, like reporting to a probation officer and not changing his address without informing them. However, he did not follow these rules, which led the State to ask to revoke his suspended sentences. During a hearing, the judge decided to revoke Clemons' suspended sentences because he had failed to report as required and changed his address without telling his probation officer. Clemons argued that the State didn’t properly inform him about the reasons for the revocation and that they didn’t provide enough evidence to support their claims. He also said that the judge should not have revoked his sentence because the punishment was longer than what the law allowed for one of his charges. The court agreed with some of Clemons' points but stated that there was enough evidence to support the decision to revoke his suspended sentences. They found that he didn’t show how the judge made a wrong choice. However, they also recognized a mistake in how the sentences should be served. They ordered that all his sentences should run concurrently, meaning they would be served at the same time, rather than one after the other. In conclusion, Clemons' appeal was mostly not successful, but the court made important changes to ensure he would serve his time in a fair way according to the law.

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C-2016-877

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In OCCA case No. C-2016-877, Charles David Miller appealed his conviction for multiple charges including stalking and possession of a firearm during a felony. In an unpublished decision, the court decided to grant Miller’s petition in part. The court affirmed the judgments and sentences for some counts but reversed the sentence for Count 1 and dismissed Count 4 due to double punishment concerns. One judge dissented. The case began when Miller, facing serious charges, entered a guilty plea in December 2014, agreeing to certain terms. He was originally given deferred sentences, meaning he would not serve time in prison if he followed the terms of his probation. However, after a hearing in 2015, the court ruled to impose a harsher sentence because Miller did not comply with the terms, leading to his appeal. Throughout the appeal, Miller argued that his guilty plea should be withdrawn for several reasons. He claimed there was no factual reason for his plea, that he was not made aware of his rights, and expressed concerns about double punishment as well as the effectiveness of his lawyer. The court reviewed the details and concluded that Miller had not shown enough grounds for his claims because some issues were not raised earlier in court, making them not eligible for review. The court particularly focused on whether Miller's plea was voluntary and if he was properly informed. They found that while Miller's plea might have been motivated by a desire to get his car back, he did understand the consequences of his actions. The court upheld the judgment for some counts, but it noted that the sentence for Count 1 was illegal because it exceeded the maximum allowed by law. As a result, they ordered a new sentencing for that count and dismissed Count 4 entirely because of double punishment. In summary, the main points were that Miller wanted to reverse his guilty plea but the court found many of his arguments unsubstantiated. They decided to change his sentence on one charge while dismissing another, affirming the result on several others.

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F-2016-549

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In OCCA case No. F-2016-549, Jerome Deshone Hopkins appealed his conviction for Placing Bodily Fluid on a Government Employee. In an unpublished decision, the court decided to reverse the conviction and remand for a new trial. One judge dissented. Jerome deshone Hopkins was found guilty by a jury for a crime related to putting bodily fluid on a government employee. This happened in the District Court of Muskogee County. The jury said he should go to prison for ten years, and the court agreed to give him credit for time he already served. Hopkins didn't think the trial was fair, and he told the court why. He raised several reasons for his appeal. First, he believed the trial court didn’t help him understand how to represent himself. Second, he said there were irrelevant details brought up during the trial that hurt his chances of a fair decision. Third, he mentioned that some actions by the prosecutors were unfair and made the trial unjust for him. He also claimed that mentioning his past felonies using suspended sentences made it harder for him to have a fair trial. Additionally, Hopkins felt that wearing shorts made jurors see him in an unfavorable light, and that being restrained in court was also unfair because it could sway the jurors' opinions of him. He said he wasn’t allowed to have good representation during the trial and believed all these factors together made the trial unfair. The court looked carefully at everything that happened. They found that the trial judge didn’t properly explain to Hopkins what self-representation meant. The court agreed that there should have been a clear warning about the risks of representing oneself without a lawyer. Also, they acknowledged that Hopkins was restrained in a way that was visible to jurors, which could affect how they viewed him. Given these issues, the court decided that Hopkins’s conviction should not stand and that he should have a new trial with proper legal counsel or a better understanding of representing himself if he chooses to do so. The court emphasized that the mistakes made could not be brushed aside as harmless because the right to legal representation is very crucial in ensuring a fair trial.

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C-2015-942

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In OCCA case No. C-2015-942, Prince Edward Myers appealed his conviction for multiple charges, including Running a Roadblock and Eluding a Police Officer. In an unpublished decision, the court decided to affirm several parts of the case. However, they found errors concerning sentences that exceeded what was allowed by law. Myers received a mix of sentences, including prison time and fines, and the court ruled that some of his jail sentences were not valid because the offenses only allowed for fines. One judge disagreed with some aspects of the decision.

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F-2014-452

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In OCCA case No. F-2014-452, Roderick Leandrew Jackson appealed his conviction for various crimes, including knowingly concealing stolen property and drug-related offenses. In a published decision, the court decided to reverse the termination of his participation in the Drug Court program. The state also agreed that the termination was a mistake. Jackson had previously been sanctioned for his violations, and since there was no new evidence of violations presented at the hearing, he was reinstated in the Drug Court program. One judge dissented.

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RE-2014-392

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In OCCA case No. RE-2014-392, the appellant appealed his conviction for lewd molestation and rape in the first degree. In an unpublished decision, the court decided to affirm the revocation of the appellant's suspended sentences, but they vacated the one-year period of post-imprisonment supervision. One judge dissented.

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C-2012-1154

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In OCCA case No. C-2012-1154, Charles D. North appealed his conviction for First Degree Manslaughter, among other charges. In a published decision, the court decided to grant North's request to withdraw his guilty pleas due to the fact that he was denied his right to have a lawyer present during the hearing on this motion. North also challenged the legality of his sentences for two other counts. The court agreed that those sentences exceeded what was allowed by law. Therefore, they vacated the illegal sentences and sent the case back to the lower court for North to have new counsel and a new hearing on his motion to withdraw his pleas. No one dissented.

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F-2011-877

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In OCCA case No. F-2011-877, Dennis Lynn Miller appealed his conviction for multiple offenses, including child sexual abuse, first-degree rape, forcible oral sodomy, attempted first-degree rape, kidnapping, assault with a dangerous weapon, and intimidation of a witness. In an unpublished decision, the court decided to affirm his convictions for counts one through six and eight, while reversing and remanding count seven for dismissal. One judge dissented. Miller was convicted after a jury trial in Muskogee County, where he faced serious accusations of abusing his adoptive daughter, L.M. The abuse began when L.M. was around thirteen years old, involving both physical violence and sexual acts that lasted for several years. Miller's conduct included threats of violence to control L.M. during these acts, which left her frightened and unwilling to report the abuse. L.M. eventually confided in a friend, and authorities were contacted, leading to a police investigation that confirmed multiple instances of abuse. Although Miller challenged the admissibility of certain evidence related to his past behavior and the sufficiency of the evidence supporting his convictions, the court determined that the substantial evidence supported the jury's decisions. The court acknowledged that some evidence may not have been properly objected to during trial, but found that the lack of objections by defense counsel did not significantly harm Miller's case, as the victim's testimony was clear and credible. The court ultimately ruled that Miller's conviction for assault and battery with a dangerous weapon should be reversed as the evidence did not support that a dresser was used in a manner that constituted a dangerous weapon. In summary, the court upheld most of Miller's convictions while dismissing one, citing the overwhelming evidence against him and the credibility of the victim's testimony.

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C-2010-1129

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In OCCA case No. C-2010-1129, Julius Jerome Walker appealed his conviction for multiple charges. In an unpublished decision, the court decided to deny his appeal but reversed one count with instructions to dismiss. One judge dissented. Walker was charged in a District Court in Muskogee County with serious crimes including Assault and Battery and Child Abuse. He decided to plead guilty to all the charges. The judge sentenced him to life for each charge, but they would all be served at the same time. After some time, Walker wanted to change his mind and filed a request to withdraw his guilty plea. During the hearing on his request, Walker raised several reasons why he felt he deserved to withdraw his plea. He argued that his lawyer did not help him well enough during the whole legal process, which is known as ineffective assistance of counsel. He also said he was punished too many times for actions that were really just one event, and that his sentences were much too harsh. After looking closely at all of his claims and the case details, the court decided to deny his request to withdraw the plea. However, they agreed with Walker on one point: he had been punished too many times for one part of his actions, so they decided to dismiss one of the counts against him. The court found that Walker’s arguments about ineffective assistance of counsel were not strong enough to change the outcome of the case except for that one count. They explained that his lawyer’s performance did have a small mistake, but most of what his lawyer did was acceptable. Finally, regarding the severity of his sentences, the court did not think they were too extreme, as they were in line with what the law allowed. Thus, they ruled that his punishments were fair based on the circumstances of the case. In summary, Walker did not succeed in changing his guilty plea except for one part of the case. The court maintained most of the convictions and sentences while ensuring that he would not be unfairly punished for the same event more than once.

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F-2010-2

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In OCCA case No. F-2010-2, Clinton Riley Potts appealed his conviction for First Degree Murder. In a published decision, the court decided to reverse the conviction and remand for a new trial. No one dissented. Clinton Riley Potts was found guilty by a jury of murdering Gregory Clark. This happened after Potts learned that Clark was dating his girlfriend. The court sentenced Potts to life in prison without the chance for parole. Potts believed he did not have a fair trial. He thought that the prosecutor did not tell his lawyer important information about a witness. This information could have helped show that the witness was not telling the truth and also could have helped Potts’s case. He also argued that his own lawyer did not do enough to prepare for the trial, did not look into the case properly, and did not bring in important witnesses. After Potts appealed, an evidentiary hearing was held. During this hearing, it was shown that Potts’s lawyer did not investigate the case as well as he should have. They found that the prosecutor had information about a key witness who had received special treatment for testifying at Potts's trial, but they did not share this information with Potts's lawyer. The judge who looked at the evidence agreed that Potts did not receive a fair trial. This finding was important because the judge had also been the one who oversaw Potts's original trial, making him well aware of how the mistakes may have affected the trial's outcome. The court decided that Potts's arguments about unfairness were valid. Since this was the case, they reversed the initial verdict and said that Potts should have a new trial. The decision meant that the earlier trial was not valid anymore, and the court ordered that Potts would get another chance to present his case in a new trial.

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