Okla. Stat. tit. 12 § 2414

F-2017-963

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In OCCA case No. F-2017-963, Randall Duane Throneberry appealed his conviction for Lewd Acts with a Child Under 16. In an unpublished decision, the court decided to affirm the conviction and the sentence of life imprisonment without the possibility of parole. One judge dissented. Randall Duane Throneberry was tried and found guilty in an Oklahoma court for lewd acts with an child under the age of 16. The jury recommended that he be sentenced to life in prison without any chance for parole because he had a prior conviction for a similar crime. The case began when a young girl named R.F. reported that Throneberry had molested her while she was sleeping on a couch. The events happened in August 2015 when R.F. and her mother were staying at a family friend's house, where Throneberry was also visiting. One night, while R.F. was sleeping, Throneberry was found standing too close to her and had his hand under her blanket. The next morning, R.F. woke up to find Throneberry touching her inappropriately. During the trial, Thorneberry argued that some testimonies regarding R.F.'s behavior after the incident should not have been allowed, claiming that it unfairly impacted the jury. However, the court ruled that this evidence was relevant to show the credibility of R.F.'s testimony. Throneberry also challenged the admission of testimony from another victim, D.W., who had been molested by him when she was seven years old. The court allowed this testimony as it demonstrated Throneberry's pattern of behavior. Despite Throneberry's claims, the court found that the testimony was relevant and important for the case. Throneberry's argument that his life sentence without parole was unconstitutional was also denied. The court stated that the sentence was not excessively harsh compared to the serious nature of the crime and Throneberry's history of similar offenses. The judge noted that sentencing is ultimately a matter for the legislature, and in these kinds of cases, severe punishments are justified. In summary, the court upheld Throneberry's conviction and life sentence, finding no errors in the trial or the evidence presented. The judgment was affirmed, with one judge expressing a different opinion.

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F-2018-835

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ANTHONY BRUCE HENSON, SR.,** Appellant, **V.** **THE STATE OF OKLAHOMA,** Appellee. Case No. F-2018-835 Summary Opinion FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN - 9 2020 **OPINION** *LEWIS, PRESIDING JUDGE:* Anthony Bruce Henson, Sr., Appellant, was tried by jury and found guilty on Counts 1 through 6 for sexual abuse of a child under twelve (12) years, violating 21 O.S.Supp.2014, § 843.5(F); and Count 7 for child abuse, violating 21 O.S.Supp.2014, § 843.5(A), in the District Court of Tulsa County, Case No. CF-2017-3127. The jury sentenced the Appellant to life imprisonment and a $1,000.00 fine for each of Counts 1 through 6, and six (6) years imprisonment for Count 7. The sentences were ordered to run consecutively, though the court did not impose the fines. The State dismissed Count 8, charging child abuse, prior to trial. The jury deadlocked on Counts 9 and 10, also charging sexual abuse of a child under twelve, leading the State to dismiss those counts. Mr. Henson raises the following propositions of error on appeal: 1. The District Court erred in admitting bad act evidence of pornography, violating provisions of the Oklahoma Evidence Code and denying due process and a fair trial under the Fourteenth Amendment. 2. The jury instruction concerning the other crimes evidence was erroneous, as it did not limit its admission purpose. 3. The consecutive life sentences are excessive and should be modified. 4. Appellant was denied effective assistance of counsel per the Sixth and Fourteenth Amendments. **Proposition One:** Appellant argues the trial court erred in admitting evidence of his possession of child pornography on a cell phone, which counsel did not object to at trial, waiving all but plain error. As established in *Simpson v. State*, Appellant must demonstrate that this plain error affected the trial's outcome. The Court finds no error in the admission of this evidence to show motive or intent for the charged crimes. **Proposition Two:** Appellant contends the trial court used an incorrect limiting instruction for the other crimes evidence of child pornography. The request for this instruction constituted a waiver of the standard error analysis. Although the court erred in using a modified instruction, it did not compromise the fairness or integrity of the judicial proceedings, thus, relief is unwarranted. **Proposition Three:** Appellant claims his six consecutive life sentences are excessive. The Court will not alter sentences within statutory limits unless they are so excessive that they shock the court’s conscience. The sentences here do not shock the conscience and are within legal limits. **Proposition Four:** The Appellant argues ineffective assistance of counsel for failing to object to inadmissible evidence and not requesting a proper limiting instruction. Following *Strickland v. Washington*, the Court finds no reasonable probability that the outcomes would have differed due to trial counsel's performance. **DECISION** The judgment and sentence are AFFIRMED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. --- **APPEARANCES** **AT TRIAL** Richard Koller, Attorney for Appellant Barbara Woltz **ON APPEAL** Nicole Dawn Herron, Attorneys for Defendant Katie Koljack, Mike Hunter, Mark Morgan, Asst. District Attorneys Sheri M. Johnson, Asst. Attorney General **OPINION BY:** Lewis, P.J. Kuehn, V.P.J.: Concur Lumpkin, J.: Concur in Results Hudson, J.: Concur Rowland, J.: Concur [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-835_1735212413.pdf)

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F-2018-302

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In OCCA case No. F-2018-302, Jorge R. Medina appealed his conviction for Lewd or Indecent Acts to a Child Under 16. In an unpublished decision, the court decided to affirm Medina's conviction and sentence. One judge dissented. The case involved Medina being found guilty by a jury of a serious crime against a young child. The court imposed a severe sentence of forty years imprisonment. Medina raised several arguments in his appeal, claiming he did not receive a fair trial due to prosecutorial misconduct, issues with his confession, introduction of evidence regarding his past behavior, and ineffective assistance of his attorney. First, Medina argued that the prosecutor made incorrect statements during the trial and suggested that the jury should assume certain things rather than find them to be true based on evidence. However, the court reviewed the prosecutor's comments and determined they did not misstate the law or unfairly influence the jury. Next, Medina claimed he did not fully understand his rights when he confessed, which should have meant that his confession was not valid. But the court found that Medina had waived this right and that the confession was given voluntarily after he understood his rights. Medina also contested the admission of evidence about his past bad acts. The court found that the prosecution had properly notified Medina of this evidence beforehand, so it was admissible. Regarding hearsay statements made by the victim, which were brought up as evidence at the trial, Medina’s team did not object to this during the trial. The court observed that since the defense had been aware of the basis for these statements and did not raise any objections, it affected their ability to contest them later. Moreover, Medina argued his attorney did not provide effective legal help because they did not object to issues during the trial. The court concluded that the alleged deficiencies of the attorney did not impact the outcome of the case due to the strength of the evidence against Medina. Finally, Medina claimed that the accumulation of errors throughout his trial added up to a denial of his rights. However, the court found that the trial did not have enough significant errors to justify this claim. In conclusion, the court upheld Medina's conviction and sentence, emphasizing that the errors he pointed out did not meet the threshold to alter the jury's decision.

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F-2018-36

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In OCCA case No. F-2018-36, Robert Eugene Brewer appealed his conviction for Sexual Abuse of a Child Under 12. In a published decision, the court decided to affirm Brewer's conviction. One judge dissented. Brewer was tried in Tulsa County for sexually abusing a child under the age of 12. He was convicted by a jury and sentenced to seven years in prison. He was also ordered to serve three years of supervision after his prison term. Brewer appealed the decision, arguing that the trial court made a mistake by allowing evidence related to other crimes that he believed had not been proven. The court reviewed the evidence and arguments presented. The main issue was whether the trial court had the right to let in evidence that showed Brewer had a pattern of behavior related to sexual abuse. This type of evidence is sometimes called propensity evidence. Brewer argued that the trial court should have held a special hearing before allowing this evidence and should have required witnesses to testify in person. However, the court found that the trial judge had done a thorough job. The judge had held multiple hearings and considered the evidence carefully. The judge did not make a mistake by allowing the evidence because they had enough information to decide it was relevant and necessary for the case. Even though Brewer did not object to the evidence when it was presented during the trial, the court considered whether there was a serious mistake that affected the fairness of the trial. After reviewing everything, the court concluded that the trial judge acted correctly. In summary, the court believed that the evidence presented was acceptable and did not harm Brewer's case. Therefore, Brewer’s conviction was upheld, but the court also instructed the district court to make some corrections to its legal documents regarding the correct law that applied to Brewer's actions at the time of the crime. The decision was to keep Brewer's sentence in place while correcting the legal documentation properly.

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F-2018-39

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In OCCA case No. F-2018-39, Robert Ephriam Smith appealed his conviction for two counts of Child Sexual Abuse. In an unpublished decision, the court decided to affirm the conviction and sentencing of life imprisonment on both counts, which were to run consecutively. One judge dissented. Robert Ephriam Smith was found guilty by a jury for abusing two children. The jury suggested that he should spend his life in prison for the acts he committed. The trial judge agreed and stated that Smith would serve his sentences one after the other. Smith raised several points in his appeal. He claimed that the instructions given to the jury were confusing. He believed they did not clearly explain what the jury needed to decide for his charges. He also said that evidence presented against him was unfair because it included things that weren't related to the case and might have made the jury feel negatively toward him. The judge's comments during the trial were also a point of concern for Smith. He thought the judge showed support for the young witnesses, which might have influenced the jury’s opinion unfairly. Moreover, he argued that notes from the forensic examiner and testimonies from his former step-daughter, who said he abused her when she was young, should not have been allowed as they added to the unfairness of the trial. Smith also argued that the way the prosecutor spoke during the trial was not appropriate and might have made it harder for him to get a fair trial. He thought that these methods used by the prosecutor could have led the jury to make a decision out of anger instead of focusing only on the facts. When it came to his lawyer, Smith claimed that his defense was weak and did not raise objections when they should have. He thought this lack of action harmed his case. However, the court decided that since no major errors were found in the trial, his lawyer’s performance could not be considered ineffective. In the end, the court found no grounds to change the original decision. They determined that the trial was fair despite Smith's complaints, and his life sentences would remain. The mandate for this decision was ordered to be issued immediately.

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F-2018-284

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In OCCA case No. F-2018-284, Carl Wayne Gundrum, Jr. appealed his conviction for first-degree rape and lewd acts with a child under 16. In an unpublished decision, the court decided to affirm his convictions and sentences. One judge dissented. Gundrum was found guilty by a jury in Cleveland County and received a 30-year sentence for the rape and a 20-year sentence for the lewd acts. Both sentences are to be served consecutively, meaning he must serve them one after the other. Before the appeal, he argued several things regarding his trial. First, he claimed that his right to a speedy trial was violated because there was a delay of about 21 months from his arrest to the trial. The court looked at four things to decide if his right was violated: how long the delay was, why it happened, whether he asked for a speedy trial, and whether he was hurt by the delay. The court found that the delay was not enough to violate his speedy trial rights. Second, Gundrum argued that the court made a mistake by allowing evidence of another child molestation case to be shown in his trial. His lawyer objected to this evidence being used, and the court said that it was appropriately admitted, so they found no error here. Third, Gundrum claimed there was bad behavior from the prosecutors that made his trial unfair. Many of these actions were not objected to during the trial, so the court only looked at the ones that were considered plain errors. They decided that the prosecutor's actions did not change the outcome of the trial significantly enough to cause an unfair result. Fourth, he argued that his lawyer did not do a good job by not objecting to the prosecutor's misconduct. The court reviewed this situation and found that Gundrum could not prove that he was harmed by this lack of action, so his claim did not work out. Finally, Gundrum sought relief by stating that all these errors together made his trial unfair. However, since the court found no individual errors, they concluded that there could not be an accumulation of errors either. In the end, the court affirmed Gundrum's conviction and stated that he must serve a significant portion of his sentences before he could be considered for parole.

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F-2014-22

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In OCCA case No. F-2014-22, Padillow appealed his conviction for rape and sexual offenses. In an unpublished decision, the court decided to affirm the convictions but reversed a citation for direct contempt of court and vacated the associated sentence. One judge dissented. Earnest Eugene Padillow faced serious charges in two cases related to the sexual abuse of young girls. The first case involved the abuse of his nine-year-old great-niece, S.G., during a single day in August 2007, and the second case involved the sexual assault of his 11-year-old niece, D.P., in 2011. In both instances, Padillow was accused of serious crimes, including rape and inappropriate sexual contact. During the trial, Padillow had a tumultuous relationship with his attorneys. He expressed dissatisfaction with their defense strategies and at times chose to represent himself. This led to a chaotic scene in the courtroom where Padillow violently attacked one of his attorneys, resulting in his removal from the courtroom. Despite his outbursts, the trial proceeded, and he was found guilty. The court sided with the trial judge's decision that Padillow waived his rights to be present during certain trial stages due to his disruptive conduct. Padillow also claimed that his constitutional right to testify was violated when he was removed from the courtroom. However, the court ruled that his violent actions constituted a waiver of that right. In another point of contention, Padillow argued that he should have been given the chance to respond to a direct contempt charge when the judge found him guilty of contempt for his outburst. Although the court acknowledged he did not have the opportunity to be heard, they decided to reverse the contempt finding rather than require a new hearing given the context of his other convictions. Lastly, it was determined that some of the judgment documents contained errors regarding sentences, which the court directed to be corrected. Overall, the court upheld the significant portions of Padillow's convictions while addressing some procedural errors related to his contempt citation and record-keeping in the judgments.

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F-2011-1062

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In OCCA case No. F-2011-1062, Scott Allen Phillips appealed his conviction for Lewd Molestation. In an unpublished decision, the court decided to affirm Phillips' conviction and sentence, but remanded the case for consideration of whether Phillips' sentence should be suspended. One judge dissented. Scott Allen Phillips was found guilty by a jury of Lewd Molestation, which is a serious crime involving inappropriate touching of a child. He was sentenced to 25 years in prison, during which he must serve at least 85% before he can be considered for parole. Phillips claimed there were several errors during his trial that should lead to his conviction being overturned. Phillips argued that the prosecutor presented too many instances of inappropriate touching without clearly stating which one he was being accused of for the charge. He also believed there wasn't enough evidence to support the conviction. Additionally, he stated that the judge's decision not to consider a less severe punishment for him was unfair because he exercised his right to a jury trial. Phillips raised multiple issues during the appeal. The court looked at arguments closely and decided that the prosecutor's actions were correct and that they followed the law. They found that there were enough facts for the jury to conclude that Phillips had molested the child. The judges pointed out that the jury's role is to decide who they believe and what evidence to trust. Regarding the sentencing process, the judges noted that the trial judge didn't consider Phillips' request for a lesser sentence. This became important because a judge is expected to think about such requests carefully, regardless of whether the defendant went to trial. This is why the court decided to give the case back to the lower court for a fresh look at Phillips' request for a suspended sentence. Another major point Phillips raised was his concern about how the trial was handled. He asked to speak with jurors after the trial ended, hoping to gather more insight about their decision. However, the court said this was not allowed because jurors cannot discuss their deliberations or decisions after the trial is over. The court also examined the use of videotaped evidence during the trial. Phillips complained that the videos of the alleged victim’s statements should not have been shown again to the jurors while they were discussing. However, the judges felt the decision to show the videos was acceptable and did not harm Phillips' chances at a fair trial. Ultimately, the judges concluded that they would not disturb Phillips' conviction since there was sufficient evidence and no significant errors during the trial that affected the outcome. However, they did want the lower court to look again at Phillips' request for a suspension of his sentence, ensuring he had a fair chance at having that request reviewed properly. In conclusion, the court affirmed the conviction and sentence while allowing the opportunity for reconsideration regarding the potential suspension of the sentence, which shows that even in serious cases, there are processes in place to ensure fair treatment under the law.

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F-2008-1199

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In OCCA case No. F-2008-1199, Cody Robert Grenemyer appealed his conviction for Rape in the First Degree and Lewd Molestation. In an unpublished decision, the court decided to affirm the convictions but modified the sentences to life imprisonment with the possibility of parole for two counts. One judge dissented. Grenemyer was found guilty of committing serious sexual crimes against his daughters, including rape and lewd molestation. The abuse happened over a period of time and was described by multiple victims. Despite Grenemyer's denial of the allegations, the testimony of his daughters was consistent and compelling enough for the jury to convict him. During the trial, Grenemyer wanted to introduce evidence that the younger victims had been molested by another man earlier. However, the trial court decided that this information wasn't relevant to the case at hand. The judge recognized that while the evidence could have some bearing, it also risked confusing the jury and unfairly prejudicing the victims. Grenemyer argued that his sentences were too harsh, claiming that life imprisonment without parole was not appropriate under the law effective at the time of his offenses. However, this was found to be without merit as the law allowed for such sentences. The appeals court found an issue with how much past behavior information was shared during the trial, particularly focusing on the testimonies of older siblings who spoke of their own experiences of abuse. The amount of such information might have led the jury to concentrate more on past actions rather than the specific charges brought against Grenemyer. The judges agreed that while the evidence did not affect the jury's determination of guilt, it likely influenced the sentences they recommended. Thus, Grenemyer’s sentences for the first-degree rape charges were modified to ensure he would have the possibility for parole after serving a portion of his sentence. In conclusion, while the convictions were upheld based on the strong testimony of the victims, the sentence was adjusted to reflect the concerns regarding the fairness of the trial and the overwhelming amount of past abuse information presented.

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F-2007-909

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In OCCA case No. F-2007-909, Val Wilkerson appealed his conviction for Rape by Instrumentation. In an unpublished decision, the court decided to affirm the judgment but modified his sentence from thirty years to fifteen years imprisonment. One judge dissented. Val Wilkerson was found guilty by a jury in Haskell County for a serious crime. The jury decided on a punishment of thirty years in prison. After the trial, Wilkerson felt that things went wrong and he raised several points to appeal. First, he argued that the State used too much unfair evidence from other incidents that made him look bad. He thought this made the trial unfair. Second, he believed it was wrong for the prosecutors and police to mention that he had stayed quiet when asked questions. Third, he said the court did not give the jury the correct instructions. Lastly, he claimed that all these mistakes together made his trial unfair. The Court looked over everything carefully and agreed that the way other crimes were presented was a problem. They found that even though some earlier actions of Wilkerson were similar to what he was accused of, the older incidents happened a long time ago and should not have been brought up so much in his trial. The Court determined that while some bad evidence was allowed, the main evidence against Wilkerson was enough for the jury to find him guilty. However, the additional bad evidence likely influenced the length of the sentence because the prosecutor asked the jury to consider these past actions when deciding on punishment. Since the Court believed that the jury was distracted by this unfair evidence while deciding on the punishment, they changed the sentence to fifteen years instead of thirty. They also concluded that other issues raised by Wilkerson either did not affect the trial’s fairness or were fixed by the trial court’s instructions. In summary, the court upheld the conviction but agreed that the punishment was too harsh and lowered it. One judge disagreed and believed the case should be tried again.

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F-2008-381

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In OCCA case No. F-2008-381, Cecil Ray Johnson appealed his conviction for kidnapping. In an unpublished decision, the court decided to reverse the conviction and remand for a new trial. One judge dissented. Cecil Ray Johnson was found guilty of kidnapping and received a 20-year prison sentence. He argued that there was not enough evidence to prove he committed the crime of kidnapping. He also said that evidence of other crimes should not have been allowed in the trial because it did not have a clear connection to the kidnapping charges. The court agreed with Johnson on the second point. They explained that evidence of other crimes can sometimes be used, but it must be relevant to the case at hand. In this situation, the evidence of Johnson’s past acts was too old and did not clearly connect to the kidnapping charge. The court said that using this evidence could unfairly influence the jury against Johnson. Because of the problems with the evidence, the court found that Johnson did not receive a fair trial. Even though they thought there was enough evidence for his conviction, they had to reverse the decision because it was unfair to include the other crimes evidence. In conclusion, the judgment was reversed, and the case was sent back for a new trial to ensure Johnson gets a fair chance in court. One judge disagreed with this decision, believing that the evidence of other crimes was relevant to show Johnson’s intent.

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F-2007-993

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In OCCA case No. F-2007-993, the appellant appealed his conviction for First Degree Rape and Rape by Instrumentation. In a published decision, the court decided that the failure of defense counsel to call the appellant to testify, after promising the jury he would, constituted ineffective assistance of counsel, which significantly impacted the trial's fairness. The court also found that the admission of other-crimes evidence related to previous molestation was improperly admitted and prejudicial. Because of these reasons, the appellant was granted a new trial. One judge dissented, arguing that the decision to not testify was the appellant's choice and did not affect the trial's outcome.

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F-2006-348

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In OCCA case No. F-2006-348, Charles Terrell appealed his conviction for Lewd Molestation. In an unpublished decision, the court decided to affirm the conviction but modified his sentence from twenty years to ten years. One judge dissented. Charles Terrell was found guilty by a jury for molesting a young girl. The jury decided he should spend twenty years in prison. During the trial, evidence about other crimes was brought up, which included testimony from Terrell's former step-daughter who said Terrell had abused her too. Terrell argued that this testimony was unfair and should not have been allowed, as it could make the jury think he was guilty of more than just the crime he was accused of in this case. The court agreed that mentioning the other crimes was not handled well, as it wasn't properly limited. However, they also believed the main evidence from the victim in this case was strong and enough to show he was guilty. They found that allowing the other testimony did not change the fact that Terrell was guilty, so his conviction stood. On the topic of his sentence, the court thought about how the other crimes evidence might have led the jury to give him a much longer sentence than they would have otherwise. Because of this, they decided to reduce his sentence to ten years instead of twenty. The court concluded that the main evidence was solid, but the details about his past accusations were overly prejudicial and affected the severity of his punishment. The judge also noted that a photograph of the victim was properly allowed into evidence and was not seen as too harmful. In the end, while the conviction remained, the court decided to lessen the time Terrell would spend in prison, trimming it down to ten years.

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