Okla. Stat. tit. 22 § 2002

F-2018-805

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY EARL JONES,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-805** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN - 9 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LUMPKIN, JUDGE:** Appellant, Johnny Earl Jones, was convicted by jury of Child Neglect, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2014, § 843.5(C), in the District Court of Tulsa County, Case Number CF-2017-1887. The jury recommended a sentence of forty years imprisonment and a $5,000 fine, which the trial court imposed. Jones appealed from this judgment and sentence. 1. **Trial by Ambush:** Appellant contends that he was subjected to trial by ambush when the State called Corporal Eric Leverington as a witness without prior endorsement. However, the defense did not seek a continuance despite this late endorsement, and defense counsel had access to relevant materials, including Leverington's cell phone extraction report. Thus, the trial court’s decision to allow Leverington to testify was not an abuse of discretion, and appellant was not prejudiced. 2. **Ineffective Assistance of Counsel:** Appellant claims counsel was ineffective for opening the door to the cell phone evidence. The record indicates that defense counsel reviewed the report and made a strategic decision to call Leverington as a witness, which provided support for part of Appellant's narrative. The evidence against Appellant was substantial, and thus he could not demonstrate that but for counsel’s actions, the outcome would have been different. 3. **Admissibility of In-Life Photograph:** Appellant argues that a photograph of K.O. while alive was admitted in error. He did not object at trial, leading to a plain error review. The photograph was relevant to the defense that Appellant did not recognize the need for medical attention, and its probative value was not substantially outweighed by prejudicial effect. 4. **Prosecutorial Misconduct:** Appellant claims instances of prosecutorial misconduct, including misstatements regarding Appellant seeing Smith beat K.O. and regarding K.O.'s suffering. The evidence supports that Appellant knew of the abuse; thus, these claims did not deprive him of a fair trial. 5. **Admission of Pen Pack:** Lastly, Appellant characterizes prejudicial details in his previous offenses as grounds for error. However, under established law, pen packs are generally admissible to prove prior convictions, making their inclusion appropriate. **DECISION:** The judgment and sentence are AFFIRMED. **OPINION BY:** **LUMPKIN, J.** **LEWIS, P.J.:** Concur in Results **KUEHN, V.P.J.:** Concur in Results **HUDSON, J.:** Concur **ROWLAND, J.:** Concur in Results **KUEHN, V.P.J., CONCURRING IN RESULT:** While I agree with the affirmation of Appellant's conviction and sentence, I express concern regarding the prosecutor’s late endorsement of a witness which, while not resulting in prejudice, strays close to trial by ambush. I caution against such practices that may circumvent fair trial standards. [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-805_1735213973.pdf)

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F-2014-46

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In OCCA case No. F-2014-46, Bradley appealed his conviction for possession of a controlled dangerous substance (cocaine base) in the county jail. In an unpublished decision, the court decided to affirm the judgment of the district court but modified Bradley's sentence from thirty years to twenty years. One judge dissented. Bradley was found guilty by a jury in Garvin County. The jury decided his punishment would be thirty years in prison because he had previously committed felonies. The judge in his case sentenced him accordingly and this new sentence would be served at the same time as sentences from other cases he had. Bradley raised several issues in his appeal. First, he argued that the district court should have allowed him more time to prepare for his trial, but the court did not agree. They believed he did not meet the requirements needed for a continuance. Second, he wanted a new trial because of new evidence, but the court found that the evidence wouldn’t change the trial's outcome. He also claimed that his lawyer did not help him as much as they should have. However, the court found that he could not show how this lack of assistance changed the trial result. Additionally, he argued that the state did not share important information before the trial, but the court ruled that the information was not crucial. Bradley was concerned about comments made by the prosecutor regarding his right to remain silent. The court found no serious mistakes in this regard. Claims of prosecutorial misconduct were also rejected since the comments made were considered harmless in the context of the trial. One key issue was about Bradley's past felony convictions. The state had shown more convictions than were necessary, which the court admitted was a mistake. The court concluded that the jury might have been influenced by the extra information about Bradley's past and decided to lessen his sentence to twenty years, believing this was a fair correction. The judgment of the district court was affirmed, indicating they found no major errors in the trial process that would affect fairness, except for the over-exposure to extraneous felony convictions which led to a reduced sentence. The dissenting judge argued that the error did not greatly affect Bradley's rights and believed the original thirty-year sentence was appropriate.

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F-2013-1199

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In OCCA case No. F-2013-1199, Gene Douglas Graham appealed his conviction for lewd molestation. In a published decision, the court decided to reverse his conviction and order a new trial. One judge dissented. Gene Douglas Graham was found guilty by a jury for lewd molestation, which is against the law. The jury decided that he should spend twenty-five years in prison. However, the judge took some time off his sentence and said he would only have to serve thirteen years and pay a fine. During the trial, Gene's arguments for appeal included that there wasn't enough evidence to prove he did something wrong, that he couldn't present a defense, and that he didn’t get a fair trial. Specifically, he said the judge made a mistake by not letting him talk about an eviction notice he received, which he thought was important to show that he knew about the accusations before he made a statement to the police. The court decided that the judge had made a mistake by not allowing Gene to talk about the eviction notice and that it was important for his defense. They believed that not being able to mention it could have affected the jury's decision. Even though the State had a strong case, the jury was still confused because they found him not guilty on two other counts related to the same victim. The judge also mentioned that talking about Gene's right to stay silent when the police questioned him was wrong and should not have happened. Gene’s lawyer didn’t object to this at the trial, so it complicated the case. However, since they found other problems, they reversed the conviction and decided he needed a new trial. In the end, the court agreed that Gene had not been treated fairly during his trial, leading them to reverse the decision and start over. This means they felt important evidence was wrongfully kept out and that he was not given a fair chance to defend himself.

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F-2012-721

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In OCCA case No. F-2012-721, Deshaunte Devon Coulter appealed his conviction for Robbery with a Dangerous Weapon. In an unpublished decision, the court decided to affirm Coulter's conviction and sentence but vacated the restitution order, directing a new determination of the victim’s loss. One judge dissented. Coulter was found guilty by a jury and sentenced to thirty years in prison, along with an order to pay $2,300 in restitution. He raised several issues on appeal, including claims of unfair trial due to the admission of other crimes evidence, DNA evidence issues, prosecutorial misconduct, and excessive sentencing. The court looked closely at each of Coulter’s arguments. For the first claim about other crimes evidence, the court found there was no actual error because the officers’ testimonies did not specifically reference other crimes involving Coulter. Since Coulter did not challenge this during the trial, he could only appeal on the grounds of plain error, which the court ruled did not occur. In the second argument about DNA evidence, the court noted that Coulter had not shown that the State had erred. The evidence was timely provided, and the court did not find a Brady violation regarding the lack of lab notes since Coulter did not request them in time. For the third claim of prosecutorial misconduct, the court found that there was no actual error. The prosecutor’s comments during the trial were not improper, and thus did not violate Coulter's rights. In the fourth argument, regarding the claim that his sentence was excessive, the court concluded that the sentence fell within the legal limit and was not shockingly inappropriate under the circumstances. In the fifth claim, which concerned the assessment of restitution, the court found that the trial court did not follow proper procedures. The evidence presented at the sentencing didn’t adequately prove the victim's financial losses, so the restitution order was vacated. Finally, Coulter claimed that the cumulative effect of all errors deprived him of a fair trial, but the court found that wasn't the case. The decision affirmed Coulter's conviction and sentence while remanding the restitution matter for proper evaluation.

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S-2011-543

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In OCCA case No. S-2011-543, the State of Oklahoma appealed its conviction for suppressing evidence against DAREN LEVI GEYER. In a published decision, the court decided to affirm the lower court's order. The judges noted that the trial court was correct in determining that the State had violated rules regarding evidence disclosure and imposed sanctions on the State for not following these rules. The court found that the State's failures warranted these sanctions, and the imposition of a jury instruction against the State was also upheld. One judge dissented, emphasizing the importance of fair play in the discovery process during trials.

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F-2000-1156

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In OCCA case No. F-2000-1156, Randy Scott Bucsok appealed his conviction for lewd molestation and rape by instrumentation. In a published decision, the court decided to reverse the lower court's judgment and remand the case for a new trial. One judge dissented. Bucsok was found guilty of multiple charges, including lewd molestation and rape by instrumentation. The jury sentenced him to a total of 60 years in prison, with some sentences running consecutively while others were partially suspended. Following his conviction, Bucsok raised several arguments in his appeal regarding mistakes made during the trial. First, he argued that the trial court made a mistake by not allowing two witnesses, Shell and Kemble, to testify. The court found this was a serious error because their testimony could have been important to Bucsok's defense. The judges believed that excluding this evidence hurt Bucsok's chance for a fair trial. Bucsok also claimed that the trial court wrongly allowed hearsay testimony from other witnesses. However, the court decided that this part of the trial was handled correctly and that the testimony was admissible. Additionally, Bucsok expressed concern about unfair evidence being presented to the jury regarding uncharged crimes, but the court determined that there was no plain error in how this evidence was managed. Finally, he disagreed with the trial court’s decision to bar testimony about the victim's behavior that could explain injuries. In conclusion, the court found that the trial court had made critical mistakes, particularly in not allowing key witnesses to testify, which warranted a new trial for Bucsok.

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