Okla. Stat. tit. 21 § 421

F-2018-989

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ARNULFO CAMPOS GONZALES, Appellant,** **V.** **THE STATE OF OKLAHOMA, Appellee.** **Case No. F-2018-989** **File Date: January 2020** **OPINION BY: ROWLAND, JUDGE** Appellant Arnulfo Campos Gonzales appeals his Judgment and Sentence from the District Court of Haskell County, Case No. CF-2017-197. He was convicted for Trafficking in Illegal Drugs, Conspiracy to Traffic Methamphetamine, and Conspiracy to Distribute Methamphetamine. His sentences included twenty-five years imprisonment for Count 1 and ten years each for Counts 2 and 3, ordered to be served consecutively. Gonzales raises several issues on appeal: 1. Denial of effective assistance of counsel due to a conflict of interest. 2. Double punishment for Counts 2 and 3. 3. Violation of the Fourth Amendment regarding the search of his car. 4. Deficient jury instructions on conspiracy. 5. Ineffective assistance of counsel due to failure to suppress and object to instructions. 6. Abuse of discretion in consecutive sentencing. **1. Conflict of Interest** Gonzales argues that he was denied his Sixth Amendment right to effective assistance of counsel due to defense counsel’s prior representation of a co-defendant, Samantha Johnson, who testified against him. The court examined whether an actual conflict arose during representation, determining that Gonzales failed to demonstrate that the former representation affected counsel's performance. The court found that Johnson’s testimony largely did not implicate Gonzales and that counsel's representation was sufficient. **2. Multiple Punishment** Gonzales contends that sentencing him for conspiracy to traffic and conspiracy to distribute methamphetamine violates the prohibition against multiple punishments for the same act. The court found both counts stemmed from a single agreement concerning the same methamphetamine and that the convictions constituted a violation of Section 11. The court remanded the case for dismissal of Count 3. **3. Fourth Amendment** Gonzales did not properly contest the legality of the search of his car and thus the court reviewed this claim for plain error. The court concluded that Gonzales had not demonstrated that the timeline of events during the traffic stop violated his rights, as he consented to the search prior to its execution. **4. Jury Instructions** Gonzales argued that jury instructions were insufficient as they failed to name the conspirators. However, the court determined the instructions, when read as a whole, properly conveyed the necessary information. Gonzales did not establish any plain error regarding jury instructions. **5. Ineffective Assistance of Counsel** This claim was evaluated under the standard set by Strickland v. Washington. The court found no prejudice affecting the outcome as Gonzales could not demonstrate ineffective assistance. **6. Consecutive Sentences** Gonzales claims the district court abused its discretion in imposing consecutive sentences. The prosecutor’s remark about a presumed policy did not demonstrate that the district court failed to exercise discretion. The court affirmed its decision as the record supported the imposition of consecutive sentences. **DECISION** The Judgment and Sentence is AFFIRMED for Counts 1 and 2. Count 3 is DISMISSED. Gonzales’s Application for Evidentiary Hearing is DENIED. **APPEARANCES** *AT TRIAL* Roger Hilfiger, Counsel for Defendant *ON APPEAL* Ariel Parry, Appellate Counsel Christina Burns, Assistant District Attorney Mike Hunter, Attorney General of Oklahoma **OPINION BY: ROWLAND, J.** **LEWIS, P.J., KUEHN, V.P.J., LUMPKIN, J., HUDSON, J.:** Concur. [PDF Download Link](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-989_1734871593.pdf)

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F-2018-562

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

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F-2018-586

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Here is a summary of the court's decision in the case of Traevon Dontyce Harbert: **Case Overview:** Traevon Dontyce Harbert was convicted by a jury in Oklahoma County for First Degree Murder (Count 1), Felon in Possession of a Firearm (Count 2), and Conspiracy to Commit Murder (Count 3). He received a life sentence for murder, two years for possession of a firearm, and four years for conspiracy, with sentences running consecutively. **Propositions of Error:** Harbert appealed his conviction, arguing two main points: 1. **Insufficient Evidence:** He contended that the evidence presented was insufficient to establish his identity as the shooter and that he had acted with malice. The court analyzed the evidence under the standard asserted in *Jackson v. Virginia*, determining that there was sufficient circumstantial evidence for a reasonable jury to conclude his guilt beyond a reasonable doubt. 2. **Exclusion of Evidence:** Harbert argued that the trial court improperly excluded evidence regarding an arrest warrant for another suspect, which he felt was important for his defense. The court reviewed the trial court’s decision for abuse of discretion, concluding that the trial court acted reasonably, as the excluded evidence was based on hearsay from witnesses rather than facts within the detective's personal knowledge. The court found that the defense was still able to effectively question the detective and present alternative theories. **Decision:** The Oklahoma Court of Criminal Appeals denied both propositions, affirming the judgment and sentence against Harbert. The decision indicated that the evidence sufficiently supported the jury's conclusions and that the trial court did not abuse its discretion in its evidentiary rulings. **Opinion Author:** Judge Lumpkin. **Final Note:** The court's rulings underscore the importance of both the sufficiency of evidence required for a conviction and the adherence to procedural rules regarding evidence admission. For further details or to download the full opinion, visit [this link](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-586_1735313750.pdf).

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F-2017-1232

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In OCCA case No. F-2017-1232, Adrian Luis Walker appealed his conviction for second-degree murder and robbery by two or more persons. In an unpublished decision, the court decided to reverse the conviction on the robbery charge because it violated the law against being punished for the same crime more than once. The court affirmed the other parts of the sentence. One judge dissented.

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F-2018-248

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In OCCA case No. F-2018-248, Mosi Abasi Dennis appealed his conviction for first degree murder and conspiracy to commit robbery with a dangerous weapon. In an unpublished decision, the court decided to affirm the verdict. One member dissented. Mosi Abasi Dennis was found guilty by a jury of first degree murder and conspiracy related to a robbery. The jury sentenced him to life in prison without the possibility of parole for the murder and ten years for conspiracy, with both sentences to be served one after the other. Dennis was involved in a plan to rob Antonio Walker. He and others went to Walker's house under the false pretense of purchasing drugs. When they arrived, Dennis refused to abandon the plan, even when it became clear that others were present in the house. Things escalated, and during the robbery attempt, Dennis shot Walker's father, Kenneth, who had entered the room to see what was happening. On appeal, Dennis raised several arguments. First, he claimed that there was unfair treatment in jury selection because a minority juror was removed while a white juror, who had similar issues, was allowed to stay. The court found no evidence of racial bias and held that the reasons given for removing the juror were fair. Second, Dennis argued that the prosecution made unfair comments during closing arguments, asking jurors to sympathize with a co-conspirator. The court ruled that this did not unfairly influence the jury as the statements were part of explaining the witness's behavior. Third, he contested the admission of graphic photographs of the victim, believing they were too prejudicial. The court decided that the images were relevant to the case and helped explain the events that unfolded during the crime. Dennis also claimed that the evidence presented was not enough to prove his guilt beyond a reasonable doubt. However, the court disagreed, stating that the evidence adequately demonstrated that Dennis shot the victim during the robbery. Furthermore, Dennis believed he should have been given instructions for a lesser offense of second-degree murder, but the court found that there was no solid evidence supporting such a charge. Finally, Dennis argued that the combination of errors during the trial warranted a reversal of the conviction. The court concluded there were no significant errors that would have affected the trial's outcome. The court ultimately upheld the conviction and sentencing, stating that there were no legal errors that warranted overturning the jury’s decision.

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J-2019-0092

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**Summary of the Case: Jeremy Dwayne Lavorchek v. State of Oklahoma** **Court:** Oklahoma Court of Criminal Appeals **Case Number:** F-2018-263 **Decision Date:** June 13, 2019 **Overview:** Jeremy Dwayne Lavorchek was convicted by a jury in Garvin County for multiple crimes associated with an armed robbery at a pharmacy. The jury found him guilty on all counts, which included First Degree Robbery, Use of a Firearm in the Commission of a Felony, Conspiracy to Commit a Felony, multiple counts of Kidnapping, and multiple counts of Assault with a Dangerous Weapon. Following these convictions, the jury recommended life sentences on all counts. **Key Crimes Committed (Counts):** 1. First Degree Robbery 2. Use of a Firearm in the Commission of a Felony 3. Conspiracy to Commit a Felony 4-6. Kidnapping (3 counts) 7-9. Assault with a Dangerous Weapon (3 counts) **Sentencing:** The trial court, upon sentencing, ordered the sentences for counts 2 through 9 to run concurrently but consecutively to Count 1, which meant that Lavorchek must serve 85% of the life sentence for the robbery before becoming eligible for parole. **Propositions of Error Raised on Appeal:** Lavorchek raised eight propositions, primarily focusing on claims of double punishment, denial of self-representation, ineffective assistance of counsel, errors in sentencing, and cumulative effect of errors. 1. **Double Punishment Allegations:** Lavorchek argued that his convictions for robbery and the various assaults and kidnappings constituted double punishment. The court rejected these claims, emphasizing that the crimes were distinct and occurred sequentially, and separate punishments were authorized. 2. **Self-Representation:** He contended he was denied the right to represent himself. However, the court upheld the trial judge's discretion, stating Lavorchek's request was made after the trial had already commenced, which could be seen as an abuse of the privilege. 3. **Ineffective Assistance of Counsel:** Lavorchek claimed a continuance was wrongly denied, affecting his counsel's performance. The court found no constitutional deficiency as the counsel performed effectively under the circumstances. 4. **Fair Sentencing Hearing:** He alleged improper consideration of aggravating evidence at sentencing. The court found that the information presented was appropriate. 5. **Consecutive Sentencing:** Lavorchek argued the trial court abused its discretion by ordering consecutive sentences, but the court ruled this was within the judge's authority and not excessive. 6. **Cumulative Error:** The court ruled there was no error to accumulate since all propositions were denied. **Outcome:** The Oklahoma Court of Criminal Appeals affirmed the trial court's judgment and sentence, indicating that Lavorchek received a fair trial and proper sentencing under the law. **Legal Principles Involved:** - Double jeopardy protections - Right to self-representation - Effective assistance of counsel - Sentencing discretion of trial courts - Cumulative error doctrine The case underscores the judicial principles guiding the implications of multiple charges arising from a single criminal event and the procedural safeguards in criminal trials. **Link:** For further reference, the full opinion can be found at [Oklahoma Court of Criminal Appeals](https://opinions.wirthlawoffice.com/wp-content/uploads/J-2019-0092_1734447399.pdf).

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RE-2018-232

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**Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-232** **Summary Opinion** **Appellant:** Courtney Quillen **Appellee:** The State of Oklahoma **Decided on:** May 30, 2019 **Judge:** Kuehn, Vice Presiding Judge **Background:** Courtney Quillen appealed the revocation of her concurrent seven-year suspended sentences issued by Judge Gregory D. Pollard. She had been convicted in two cases for several counts of Uttering a Forged Instrument. **Key Dates:** - **August 25, 2016:** Quillen entered nolo contendere pleas in two cases. - **March 3, 2017:** The State filed a motion to revoke her suspended sentences for failing to pay fees. - **February 26, 2018:** A revocation hearing was held, leading to the decision to revoke her sentences. **Charges and Allegations:** The State alleged that Quillen committed additional crimes (robbery and conspiracy) while on probation, which constituted violations of her probation terms. **Decision:** The court concluded that: - The alleged procedural errors regarding the twenty-day rule did not affect the court's ability to revoke the sentences from Case No. CF-2015-817 since it had jurisdiction over that case. - The evidence presented established that Quillen had participated in a robbery, thus justifying the revocation of her suspended sentences. **Propositions of Error:** 1. **Jurisdiction challenge** - Denied; revocation in Case No. CF-2015-817 upheld. 2. **Validity of waiver regarding twenty-day rule** - Moot. 3. **Insufficient evidence for robbery** - Denied; evidence supported the involvement in robbery and conspiracy. 4. **Insufficient evidence for conspiracy** - Denied; Quillen was shown to have conspired with co-defendants. 5. **Ineffective assistance of counsel** - Moot due to affirming the revocation based on other factors. 6. **Abuse of discretion in revocation** - Denied; trial court acted within its discretion. **Final Order:** The Court affirmed the decision of the District Court of Pontotoc County to revoke Quillen’s concurrent suspended sentences. **Mandate Issued.** [Full opinion and details available here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-232_1734699237.pdf).

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F-2018-202

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In OCCA case No. F-2018-202, the appellant appealed her conviction for robbery with a dangerous weapon, possession of a firearm in the commission of a felony, conspiracy to commit a felony, kidnapping, and possession of a controlled dangerous substance. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. The case involved Katherine Marie Houser, who was found guilty by a jury for several serious crimes. The jury gave her a variety of sentences, including five years for robbery, two years for possession of a firearm during a felony, and six months for kidnapping. Some of these sentences were set to run at the same time, which is called concurrent sentences. Katherine argued that her lawyer did not represent her well, especially by not challenging one of the counts against her (the possession of a firearm). Although this count was eventually dismissed by the state, she felt that just being tried for it affected the jury’s decisions on other counts. The court looked at this claim and decided that even if the lawyer made a mistake, it wouldn’t have changed the outcome. The evidence against her for the other charges was strong, and the jurors weren’t likely swayed by having one extra charge against her. In her second argument, Katherine said that a fine imposed on her should not count because the judge did not mention it during the sentencing, even though she hadn’t complained about it at that time. The court found that since she didn’t raise an issue at the right time, she had a harder time proving there was an error worth correcting. Ultimately, both of Katherine's arguments were denied, and the court decided to uphold her convictions and sentences.

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F-2018-359

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In OCCA case No. F-2018-359, Antonio Tiwan Taylor appealed his conviction for robbery with a firearm, conspiracy to commit a felony, and being a felon in possession of a firearm. In an unpublished decision, the court decided to affirm his convictions. One judge dissented. Taylor was found guilty of robbing a home along with two other men. During the robbery, they used guns and threatened the residents, forcing them to the floor and taking their belongings. After the robbery, one of the witnesses, Felicia Alvarado, identified Taylor as one of the robbers. Alvarado explained that even though Taylor wore a bandanna over his face, she saw his face clearly when it fell off for a moment. A couple of weeks later, the police found jewelry that had been taken during the crime in Taylor's possession. Another accomplice in the robbery, who had pleaded guilty, also testified against Taylor, naming him as a participant. Although that person changed his story during Taylor's trial, the court still considered his initial statement as evidence. Taylor raised multiple points in his appeal. He argued that the evidence wasn’t enough to prove he was guilty. The court disagreed, stating that the witness's strong identification of him and the jewelry found with him provided enough evidence. Taylor also argued that the trial court should have instructed the jury to be cautious about eyewitness testimony. The court ruled that since there was solid evidence, the instruction wasn't necessary. Next, Taylor claimed it was unfair to convict him for both robbery and gun possession since they were connected to the same crime. The court found no issue with this and explained that the laws allowed for separate convictions in these cases. Finally, Taylor argued that all these points together should lead to a new trial. However, since the court found no errors in the points raised, they denied this request as well. In conclusion, the court upheld the original sentences of thirty years for the robbery counts and ten years for the other charges.

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F-2018-339

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In OCCA case No. F-2018-339, Gary Julian Gallardo, Jr., appealed his conviction for Trafficking in Illegal Drugs (Methamphetamine) and Conspiracy to Commit Trafficking. In an unpublished decision, the court decided to affirm the judgment and sentence. One member of the court dissented. Gary Gallardo was found guilty of two serious crimes related to drugs. This happened in Jackson County. The jury decided to give him a very long sentence of 40 years in prison for each crime, and these sentences would happen one after the other. When Gallardo appealed, he pointed out a few reasons he believed he should not have been convicted. First, he claimed that the court did not have the right to try him in Jackson County because he believed the crime happened somewhere else. However, the court explained that the issue was actually about where the trial should be held, not whether the court had the power to judge the case. Next, Gallardo said there wasn't enough evidence to prove he was involved in the drug trafficking. The court disagreed after looking at all the evidence and decided that it was enough to show he was part of the crime, even though he was in prison at the time. Gallardo also thought that his trial wasn’t fair because the jury heard about other bad things he had done. The court said this evidence was important to understand his ability to carry out the crime in question. He raised concerns about the way the prosecutors behaved in court, but the court found that their actions did not make the trial unfair or wrong. Gallardo argued that the long sentences he received were too harsh but the court affirmed that his punishments were right given his previous criminal record. Lastly, Gallardo claimed that all the errors during the trial together made it unfair. The court stated that because they didn’t find any actual errors in the trial, there was no unfairness. In summary, the court upheld Gallardo's conviction and sentence, stating there was sufficient evidence, no unfair trial conditions, and that the sentences were appropriate based on his prior convictions.

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S-2018-6

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** Court Case No: S-2018-51 and S-2018-6 **STATE OF OKLAHOMA,** Appellant, **V.** **SHELLEY MARIE BRADLEY,** Appellee. **STATE OF OKLAHOMA,** Appellant, **V.** **DYLAN THOMAS BRODIE,** Appellee. **SUMMARY OPINION** **ROWLAND, JUDGE:** 1. The State of Oklahoma, Appellant, appeals from an order affirming the ruling of the magistrate, sustaining the defendants' demurrers to evidence on Counts 1 and 2, and denying the State's request to amend the Informations, in Case Nos. CF-2017-445 and CF-2017-446 in the District Court of Wagoner County. **STATEMENT OF THE CASE** 2. Appellees, Shelley Marie Bradley and Dylan Thomas Brodie, were charged with intimidation of a witness and conspiracy to commit a felony. The magistrate sustained the demurrers to the evidence and denied amendments to include additional charges. 3. The matter was assigned to Judge Mark L. Dobbins as the reviewing judge, who affirmed the magistrate's ruling. 4. The State appealed; on August 9, 2018, this Court held oral arguments, after which the ruling was reversed. **SUMMARY OF FACTS** 5. The Appellees are related to Jacob Ode, charged with several offenses following a police pursuit. Hawkins, a relative of the Appellees, was a passenger and initially provided a statement implicating Ode. 6. Later, Hawkins was approached by the Appellees and persuaded to change her statement to indicate Ode was not the driver during the pursuit. 7. The magistrate found no evidence demonstrating that Hawkins was threatened or coerced into altering her testimony. **ANALYSIS** ### I. Intimidation of Witness 8. The State argued sufficient evidence existed for the charge of witness intimidation. However, the records demonstrated no evidence of Hawkins being prevented from testifying or coerced through force or fear. 9. The judges did not err in finding there wasn’t enough evidence to support the claim of intimidation. ### II. Conspiracy to Commit Intimidation 10. The State similarly could not provide sufficient evidence to show any conspiracy between the Appellees to intimidate Hawkins, as no threats or coercion were substantiated. ### III. Conspiracy to Commit Perjury by Subornation 11. The State argued it presented sufficient evidence to show a conspiracy to commit perjury by subornation. The appellate judges found sufficient cause to remand for the trial on this charge. ### IV. False Preparation of Exhibits 12. The evidence presented indicated that Hawkins’ second statement was prepared under the Appellees' guidance with the intent to be submitted as evidence. 13. The failure to include this evidence as a charge of False Preparation of Exhibits was deemed an error by the appellate judges. **DECISION** 14. The order of the District Court sustaining the magistrate's decisions is REVERSED. The case is remanded to the District Court with instructions to proceed to trial for the charges of Conspiracy to Commit Perjury by Subornation and False Preparation of Exhibits. **APPEARANCES** - **For the State:** Douglas G. Dry, Assistant District Attorney - **For the Appellees:** Michon Hastings Hughes & Clinton C. Hastings, Attorneys at Law **OPINION BY: ROWLAND, J.** - LUMPKIN, P.J., LEWIS, V.P.J., HUDSON, J., and KUEHN, J., concur. --- **[Download PDF of Full Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/S-2018-6_1734333945.pdf)**

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RE-2018-357

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CASE NO. RE-2018-357** **JAMES MONROE JONES, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** --- **SUMMARY OPINION** **LUMPKIN, JUDGE:** James Monroe Jones (Appellant) appeals from the revocation of his suspended sentences in Case Nos. CF-2008-7440, CF-2010-130, CF-2010-290, and CF-2013-6519, adjudicated by the Honorable Timothy R. Henderson, District Judge, in the District Court of Oklahoma County. On June 16, 2010, Appellant pled guilty in Cases CF-2008-7440, CF-2010-130, and CF-2010-290, receiving concurrent sentences with significant portions suspended. Specifically, in CF-2008-7440, he was convicted of two counts of Concealing Stolen Property and sentenced to fifteen years on each count, with the first five years served. Similar sentences were imposed for offenses stemming from the other cases. On May 1, 2015, Appellant entered a negotiated nolo contendere plea in CF-2013-6519 for an amended count of Concealing Stolen Property, resulting in a ten-year sentence with the first year served. On August 26, 2016, the State filed applications to revoke Appellant's suspended sentences due to reported violations, including failure to report, change of address, and new criminal activity related to Domestic Assault and Battery. Enhanced allegations were added on March 7, 2018, encompassing additional crimes attributed to Appellant. A hearing was conducted on April 2, 2018. Appellant's counsel objected to the State's evidence, citing inadequate discovery. The trial court, however, noted Appellant had received relevant documents previously, and dismissed the objections after reviewing the evidence. Judge Henderson ultimately found Appellant had violated his probation through specific new criminal conduct and revoked his suspended sentences in full. Appellant presents two propositions of error on appeal: **PROPOSITION I:** The trial court violated Jones's right to due process and a fair trial under the Fourteenth Amendment and Article II § 7 of the Oklahoma State Constitution. **PROPOSITION II:** Defense counsel failed to prepare adequately for trial, resulting in ineffective assistance of counsel. **ANALYSIS** In addressing Proposition I, Appellant contends that the overruling of his objections regarding discovery violations deprived him of due process. It is established that defendants have minimal due process rights in revocation hearings, including evidence disclosure. However, since Appellant’s counsel did not request discovery prior to the hearing, the burden falls on them for preparation. The trial court did not deny Appellant the opportunity to defend—therefore, Proposition I is denied. Regarding Proposition II, Appellant asserts his counsel's ineffectiveness based on a lack of preparedness stemming from unrequested discovery. The Strickland standard evaluates ineffective assistance claims through performance deficiency and resultant prejudice. Appellant has not substantiated claims that better-prepared counsel would have altered the outcome, as evidence showed several violations were confirmed. Thus, Proposition II is also denied. **DECISION** The order from the District Court of Oklahoma County revoking Appellant's suspended sentences in Case Nos. CF-2008-7440, CF-2010-130, CF-2010-290, and CF-2013-6519 is **AFFIRMED**. --- **APPEARANCES:** **AT TRIAL** Katie Samples, Assistant Public Defender Marva A. Banks, Assistant Public Defender **ON APPEAL** David Nichols, Assistant District Attorney Mike Hunter, Attorney General Keeley L. Miller, Assistant Attorney General **OPINION BY:** LUMPKIN, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. **[Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-357_1734695459.pdf)**

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F-2016-843

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DAVID RUBLE, II,** **Appellant,** **VS.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2016-843** **FILED DEC 14 2017** **SUMMARY OPINION** *KUEHN, JUDGE:* David Ruble II was tried by jury and convicted of Count I, Felony Murder with the predicate Attempted Robbery by Firearm in violation of 21 O.S.2011, § 701.7; and Count III, Conspiracy to Commit Robbery with a Firearm in violation of 21 O.S.2011, § 421, in the District Court of Tulsa County, Case No. CF-2014-2691. Following the jury's recommendation, the Honorable William D. LaFortune sentenced Ruble to life imprisonment (Count I) and ten (10) years imprisonment (Count III), to run consecutively. Ruble appeals from these convictions and sentences. Ruble raises five propositions of error in support of his appeal: I. The trial court's erroneous rulings on challenges for cause deprived Appellant of his full complement of peremptory challenges to use at his discretion and prevented his ability to remove objectionable jurors. II. The cumulative effect of prosecutorial misconduct constituted plain error and deprived Appellant of a fair trial. III. The trial judge erred in not instructing the jury on lesser offenses. IV. Mr. Ruble was deprived of the effective assistance of counsel. V. The accumulation of errors deprived Mr. Ruble of a fair trial and the due process of law secured to him. **DECISION:** After thorough consideration of the entire record, we deny Ruble's propositions of error. 1. **Proposition I:** The trial court did not abuse its discretion in denying Ruble's challenges for cause. The record does not support that the jurors were biased, nor was there a showing that trial counsel properly preserved this issue. 2. **Proposition II:** Ruble's claims of prosecutorial misconduct were not substantiated. Many of his complaints were unobjected to and reviewed for plain error, which was not found. 3. **Proposition III:** There was no error in failing to instruct the jury on lesser included offenses, as Ruble's defense was that he was not involved in the crime. 4. **Proposition IV:** Trial counsel's performance was not deficient. Ruble did not demonstrate that he was prejudiced by counsel's actions. 5. **Proposition V:** With no fundamental error established, the claim of cumulative error fails. The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. **MANDATE:** Ordered issued upon the delivery and filing of this decision. **ATTORNEYS AT TRIAL:** Michael Manning 624 South Denver, Ste. 201 Tulsa, OK 74119 **ATTORNEYS ON APPEAL:** Rhiannon Sisk Homicide Direct Appeals Div. Oklahoma Indigent Defense System P.O. Box 926 Norman, OK 73070 **COUNSEL FOR THE STATE:** Becky Johnson Mike Hunter Benjamin Fu 500 S. Denver, Ste. 900 Tulsa, OK 74103 **OPINION BY:** KUEHN, J.; LUMPKIN, P.J., CONCUR IN RESULTS; LEWIS, V.P.J., CONCUR; HUDSON, J., CONCUR; ROWLAND, J., CONCUR. **[Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2016-843_1734264868.pdf)**

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RE-2015-206

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In OCCA case No. RE-2015-206, Akers appealed his conviction for Burglary in the Second Degree, Knowingly Concealing Stolen Property, Conspiracy to Commit Burglary II, and Possession of a Controlled Dangerous Substance (Methamphetamine). In an unpublished decision, the court decided to reverse the revocation order against him. One judge dissented. In this case, Akers had entered pleas of no contest to several charges after a plea agreement. He was sentenced to serve time in prison, but part of his sentence was suspended, meaning he wouldn’t have to serve it right away if he followed certain rules. However, a few months later, a judge revoked part of his suspended sentence because of a violation. Akers argued that the court did not follow the rules properly during the revocation process. Specifically, he claimed that the court didn’t hold a required hearing within 20 days after he entered a plea of not guilty to the motion for revocation. According to the law, if this time frame is not followed, the court loses the authority to revoke the suspended sentence. The record showed that the state filed a motion to revoke Akers' suspended sentence, and although he entered a plea of not guilty, he did not receive a hearing within the 20-day period. Akers' lawyer pointed out this issue during the hearing, claiming the court should not have moved forward with the revocation as it did not meet the required timeframe. The dissenting judge had a different opinion, but the majority agreed that Akers was right. Because the required hearing was not held on time, they decided to reverse the revocation order and told the lower court to dismiss the state’s motion, meaning Akers’ rights were upheld, and he would not face the consequences of the revocation. Thus, the decision was made to give Akers another chance by reversing the revocation.

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C 2014-920

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In OCCA case No. C 2014-920, John Edward Oxford appealed his conviction for several serious crimes including robbery, burglary, and conspiracy. In a published decision, the court decided to deny his appeal but also ordered a hearing to review the amount of restitution he was ordered to pay. Oxford was charged with multiple counts and, on July 10, 2014, he entered a blind plea, which means he pleaded guilty without negotiating a deal, to all the charges. The court sentenced him to a total of over 70 years in prison and ordered him to pay about $67,539 in restitution to the victims. After his sentencing, Oxford tried to withdraw his guilty plea, claiming he did not understand the charges and was not fully informed about his rights. The trial court held a hearing on this and ultimately denied his request. Oxford then appealed this decision, arguing several points. First, he believed he should not have been sentenced for certain counts because it violated laws against double punishment. However, the court noted that his arguments about double jeopardy were not raised in the earlier stages and thus were not considered. Second, he argued there wasn't enough evidence to support the restitution amount, but again the court found this issue had not been raised before and rejected it. Oxford also claimed he did not receive effective legal help during his plea and the hearing to withdraw it. The court agreed that there were problems with how his attorney handled the restitution order, focusing mainly on the lack of detailed documentation justifying the restitution amount. This lack of evidence meant the restitution order was not valid. While the court found that Oxford's guilty plea was made voluntarily, it did acknowledge inadequate support for the restitution order. Therefore, it denied his appeal regarding the guilty plea but vacated the restitution order, sending the case back to the lower court for a proper review of how much compensation was truly owed to the victims. One judge dissented, noting that the case should have been looked at more closely regarding the earlier claims. So, in summary, the appeal was mainly denied except for the part about restitution, which was sent back to the lower court for further review.

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C-2014-584

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In OCCA case No. C-2014-584, Gilbert Paz appealed his conviction for First Degree Felony Murder, Shooting with Intent to Kill, Conspiracy, Attempted Robbery with a Firearm, and Possession of a Firearm After Conviction of a Felony. In an unpublished decision, the court decided to vacate the District Court's denial of Paz's Motion to Withdraw Plea and remanded the case for further proceedings. One member of the court dissented. Gilbert Paz was involved in a serious crime case where he initially pleaded guilty to multiple charges. After some time, he wanted to take back his guilty pleas, claiming that he didn’t fully understand what he was doing when he agreed to the plea deal. He felt confused and believed his lawyer wasn't helping him properly. The case started when a burglary went badly, resulting in one person being killed and another being hurt. After his guilty pleas were accepted in court, Paz tried to withdraw them, but the judge said no. The judge continued to give him time to get a new lawyer but did not allow him to take back his pleas. Paz argued five main points in his appeal. He claimed that the judge helped too much during his plea negotiations, that his guilty plea was not made knowingly or intelligently, that he was denied his right to have a lawyer present during important parts of the trial, and that his lawyer did not provide effective help. He also claimed that all these issues together made it unfair for him. The court reviewed everything and determined that the main issue was that Paz did not receive the help of a lawyer when trying to withdraw his guilty pleas. Both Paz and the State agreed that he should have had a lawyer to assist him in this situation. The court recognized that without proper counsel, Paz's claim that his pleas were not voluntary could not be dismissed as harmless. As a result, the court decided to vacate the previous decision and send the case back to the District Court so they could properly address Paz's request to withdraw his pleas.

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F-2012-703

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In OCCA case No. F-2012-703, Heather Ann Jones appealed her conviction for Second Degree Murder, Robbery Committed by Two or More Persons, Conspiracy to Commit Robbery, and Child Neglect. In an unpublished decision, the court decided to reverse the conviction for Robbery but otherwise affirmed the Judgment and Sentence from the District Court. One judge dissented. Heather Ann Jones was found guilty after a jury trial in Sequoyah County. The jury sentenced her to fifteen years for Second Degree Murder, five years for Robbery, a fine for Conspiracy to Commit Robbery, and one year in jail for Child Neglect, with all sentences running at the same time. Jones raised several issues on appeal. First, she questioned whether there was enough evidence to support her convictions. The court found that the evidence was sufficient to support the jury's decisions, as it showed that Jones knew her accomplices intended to commit robbery. Even though initially the victim let them in, it was shown that they used deception to gain entry, which made their actions unlawful. Second, Jones argued that it was wrong for the trial court to allow testimony about her behavior during a TV interview after her daughter was shot. The court found that while the video of the interview was inadmissible, the investigator’s testimony about her demeanor did not count as hearsay and did not unfairly affect the trial. Jones also claimed that statements made by a witness to the police were wrongly admitted, claiming it deprived her of a fair trial. Despite the admission being deemed an error, the court ruled that since the witness testified in court about the same things, the error did not impact the outcome significantly. Jones's objection to some character evidence used against her related to her behavior following her daughter’s shooting was dismissed, as the court believed it directly supported the charge of Child Neglect. She also argued that being convicted for both Robbery and Second Degree Murder was unfairly punishing her twice for the same act. The court agreed, finding that the acts were part of the same crime, so they reversed her conviction for Robbery. In terms of ineffective assistance of counsel, Jones claimed her lawyer should have objected to several pieces of evidence, including the TV interview, police statements, and character evidence. The court ruled that her lawyer's performance did not prejudicially affect the outcome because the decisions were matters of which objections would not have made a difference. Finally, Jones asked for a review of all issues together, hoping that their combined impact on her trial would show that she did not receive a fair trial. However, the court found the errors were not enough to change the outcome. Overall, the court reversed Jones's conviction for Robbery but affirmed the rest of her convictions and sentences.

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F-2013-36

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In OCCA case No. F-2013-36, Jasper appealed his conviction for Conspiracy, Kidnapping, Attempted First Degree Rape, and First Degree Robbery. In an unpublished decision, the court decided to affirm Jasper's convictions but modify the sentence for First Degree Robbery. One judge dissented. Jasper was found guilty by a jury of four serious crimes. For Conspiracy, he was sentenced to ten years and fined $5,000. For Kidnapping, he received a 20-year sentence. Attempted Rape meant he was sentenced to 22.5 years, and for First Degree Robbery, he was given ten years. The sentences were supposed to be served one after the other, which made his total time in prison very long. Jasper raised several arguments on why he thought his convictions should be changed. He argued that the evidence didn't prove he was part of a conspiracy to commit rape, meaning there wasn't enough proof of an agreement to commit a crime. He also claimed that he shouldn't have been punished for both Kidnapping and Attempted Rape because they were connected to the same act. He believed this meant he faced double punishment for the same offense, which should not happen. Regarding his robbery conviction, Jasper contended that he shouldn't be punished for it because of double jeopardy, a rule that stops someone from being tried for the same crime twice. He also claimed the judge made a mistake when telling the jury about the sentence they could give him for robbery, which he believed went against his rights. Another argument was that some evidence presented during the trial wasn't fair and made him look bad but was not relevant to the case. He asserted that a lot of hearsay evidence was introduced that made his trial unfair and that his lawyer didn’t help him properly. After review, the court found that Jasper's conviction for Conspiracy was supported enough by evidence for the jury to make its decision. They ruled that the convictions for Kidnapping and Attempted Rape were also valid because they were considered separate crimes, meaning he could be punished for both. The claim of double jeopardy concerning his robbery conviction was rejected because the crimes he committed had different elements, making each punishment lawful. When it came to the sentencing instructions for First Degree Robbery, the court recognized a clear error since the jury was told wrong information about the possible sentence. They found that the minimum prison term should have been five years instead of ten. Because of this mistake, Jasper’s sentence for First Degree Robbery was modified. Other claims by Jasper about unfair evidence and the effectiveness of his lawyer did not convince the court to overturn his other convictions. The court believed that, aside from the sentencing issue, his trial was fair overall. At the end, the court kept Jasper’s convictions for Conspiracy, Kidnapping, and Attempted First Degree Rape as they were but changed his sentence for First Degree Robbery to five years. Thus, the court’s decision was mostly in favor of maintaining the original verdict and just correcting the sentencing issue.

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F-2013-327

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In OCCA case No. F-2013-327, Claude M. Byrd, III appealed his conviction for conspiracy to commit robbery, robbery with a firearm, and kidnapping. In an unpublished decision, the court decided to reverse the conviction for kidnapping in Count 9 while affirming all other judgments and sentences. One judge dissented. In this case, Byrd was found guilty in a trial without a jury. He had several charges against him, which included conspiracy to commit robbery, robbery, and kidnapping. The court sentenced him to serve five years for conspiracy, fifteen years for robbery (with part of that suspended), and ten years for each kidnapping charge, all to be served at the same time. Byrd argued that the evidence against him was not enough to prove he committed robbery against two people and that he was unjustly punished for multiple kidnapping charges. He claimed that his lawyer didn’t do a good job defending him and that some evidence used in his trial should not have been allowed. When the court looked at the evidence, they decided that Byrd was involved in the crimes even if he wasn't the one who took the items. His actions during the robbery could hold him responsible for the other crimes that happened afterward, like kidnapping people in the apartment. Regarding his claims of double punishment, the court found that Byrd's actions involved separate victims and crimes that did not violate the law against multiple punishments. However, they agreed that one of his kidnapping charges was too closely related to a robbery charge for Gonzalez, leading to the reversal of that specific conviction. The court concluded Byrd's lawyer did not fail in a significant way that would change the outcome of the trial. They also determined that the trial judge had not made mistakes in allowing certain evidence or in sentencing him. In the end, Byrd lost his appeal for most charges, but the court reversed the kidnapping conviction for one of the victims.

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F-2012-1126

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In OCCA case No. F-2012-1126, Kevon Andra McLaren appealed his convictions for robbery with a firearm and conspiracy to commit robbery with a firearm, among other charges. In a published decision, the court decided to reverse one of the counts of kidnapping while affirming the other convictions. One judge dissented. In the case, McLaren was found guilty of several serious crimes, including robbery, kidnapping, and shooting with intent to kill. The court focused on multiple offenses he committed against several people, determining that some of the convictions did not violate laws against double punishment because they were for different acts against different victims. However, they found one of the kidnapping charges was too similar to a robbery charge; thus, they reversed that particular conviction. Additionally, McLaren challenged the trial court’s decision to order restitution, claiming it did not follow proper procedures. However, the court ruled that he did not raise this issue correctly and that there was enough evidence to support the restitution ordered for the victims. Overall, while the court reversed one conviction, most of McLaren's convictions and sentences were upheld.

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F-2012-167

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In OCCA case No. F-2012-167, Bryan Decheveria Aragon appealed his conviction for robbery with a firearm, assault and battery with a dangerous weapon, conspiracy to commit a felony, burglary in the first degree, kidnapping, and possession of a firearm in the commission of a felony. In an unpublished decision, the court decided to affirm some of Aragon's convictions but reversed others. One judge dissented. Aragon was found guilty of several serious charges, including robbery, assault, and kidnapping, after a jury trial in the District Court of Cleveland County. The jury handed down various sentences, adding up to a long term in prison. Aragon argued that errors occurred during his trial, including the prosecution calling co-defendants who refused to testify, which he claimed violated his rights. He also pointed out concerns about the prosecutor’s conduct and whether he faced multiple punishments for the same criminal act. The court found that the prosecutor’s decision to call the co-defendants did not require a reversal. Even though the co-defendants didn’t answer every question, they provided some responses and were available for cross-examination. Therefore, this did not infringe upon Aragon’s rights. The court also ruled that any claims regarding prosecutorial misconduct did not significantly impact Aragon's fair trial. However, the court acknowledged that Aragon’s conviction for possessing a firearm during a felony had to be dismissed, as it did not comply with legal standards. The kidnapping charge was also reversed because it arose from the same act as the robbery, which meant that it violated rules against double punishment. On the other hand, the charges for robbery and assault were allowed to stand since they were considered separate actions. In summary, the decision affirmed most of the judgment and sentences but reversed those related to kidnapping and possession of a firearm.

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F-2011-866

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In OCCA case No. F-2011-866, Emanuel D. Mitchell appealed his conviction for Murder in the First Degree and Conspiracy to Commit a Felony (Robbery with a Dangerous Weapon). In a published decision, the court decided to reverse his convictions and remand the case for a new trial where Mitchell may have the chance to represent himself. One judge dissented. Mitchell was found guilty of serious crimes and was sentenced to life imprisonment for murder and additional years for conspiracy. He felt he was not being properly defended by his attorney and had asked multiple times to have his attorney replaced. Eventually, he requested to represent himself, expressing dissatisfaction with his legal counsel. The court found that Mitchell’s request to represent himself was clear and that he understood the risks of doing so. The court concluded that he had the constitutional right to self-representation, which had been violated when his request was denied. Although the court addressed other issues raised in Mitchell’s appeal, the main reason for the reversal was the denial of his right to represent himself. The dissenting opinion argued that the trial court acted correctly by not allowing Mitchell to self-represent due to his disruptive behavior during the trial process. In summary, the decision allows Mitchell another opportunity to conduct his own defense, considering that he properly requested this right before the trial proceedings were fully underway.

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F-2011-656

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In OCCA case No. F-2011-656, Jason Kenneth Dimaggio, Jr. appealed his conviction for multiple crimes, including robbery and assault. In an unpublished decision, the court decided to reverse one conviction but affirmed all others. One judge dissented. Jason Dimaggio was found guilty of several offenses that occurred during a violent crime spree in two Oklahoma counties. His crimes included robbery with a weapon, assault with a dangerous weapon, and other charges. He received lengthy sentences, with some of them being consecutive, meaning he would serve them one after another. During the appeal, Dimaggio argued that he didn't get a fair trial for several reasons. He claimed that some evidence about other crimes should not have been allowed, and that he was denied the chance to confront witnesses due to hearsay evidence. His main points included: 1. Other-crimes evidence was presented improperly. 2. Hearsay evidence was used against him. 3. The trial court allowed irrelevant photographs of him to be shown to the jurors. 4. There was misconduct by the prosecutor. 5. The jury was incorrectly instructed about his flight after crimes. 6. The combined effect of errors denied him a fair trial. 7. The court should not have ordered his sentences to be served consecutively. 8. He was unfairly punished multiple times for the same conduct. 9. The evidence did not support some of his convictions. The court reviewed all these claims and found that the evidence about earlier crimes was acceptable as part of the overall story of the events. Although there were issues with some evidence, like the photographs, the judges felt the impact on the trial was not significant enough to change the outcome because there was strong evidence against Dimaggio from witnesses. Regarding the prosecutor’s comments during the trial, the court noted that errors weren’t severe enough to matter because they were not objected to at the time. They also agreed that the jury's instruction about flight wasn't appropriate, but again, it didn't affect the strong evidence of guilt. Dimaggio’s claims of double jeopardy (being punished twice for the same crime) regarding his convictions for assault and fleeing from a police officer were not supported. The court ruled that the crimes were separate and had different elements. However, the court did agree that he should not be convicted for possession of a controlled substance because it was part of the robbery and should not have been counted as a separate crime. Thus, that conviction was reversed. In conclusion, except for the reversed conviction, the court upheld Dimaggio's multiple sentences and affirmed the trial court’s decisions in all other respects.

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C-2010-695

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In OCCA case No. C-2010-695, Marcus Jermaine Christon appealed his conviction for multiple charges including burglary and possession of drugs. In an unpublished decision, the court decided to grant his petition for certiorari and remanded the case for a new hearing. One judge dissented.

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C-2010-1179

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In OCCA case No. C-2010-1179, Donnell Devon Smith appealed his conviction for multiple crimes including robbery, sexual battery, and others. In an unpublished decision, the court decided to deny his appeal. One judge dissented. Smith was charged with various offenses in multiple cases and pleaded guilty to all charges on October 19, 2010. He received several sentences, some of which were life sentences, and others ranged from ten to twenty years. After entering his pleas, Smith requested to withdraw them, saying he felt coerced and that he had not been properly informed about the punishments he faced for his crimes. The court looked at three main points raised in Smith's appeal: 1. Smith argued he should be allowed to withdraw his plea for one count of attempted robbery because the ten-year sentence he received was too long. The court found that his sentence was actually five years too long and modified it to the correct five-year maximum. 2. Smith claimed he did not understand the range of sentences for some charges and that this lack of understanding meant his pleas were not voluntary. The court decided that while he had been misadvised, the pleas still appeared to be valid overall because he benefitted from how the sentences were set up to run concurrently. 3. He asserted that he was punished twice for some of the same actions and that some of his pleas lacked enough factual support. The court concluded that the evidence supported the different charges, and there were no double jeopardy issues. The court ultimately affirmed his convictions for all cases besides modifying the sentence that was too long and correcting a minor paperwork mistake regarding how sentences should run together. The court ruled that his plea was knowingly and voluntarily made despite the confusion around sentencing ranges. The decision closed by affirming the ruling of the lower court regarding Smith's attempt to withdraw his pleas, confirming most of the sentences while adjusting the one that exceeded the maximum allowed by law.

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