Plain Error Archives - OCCA Opinions

F-2021-1220

Post author:Staff
Post published:February 16, 2023
Post category:F

In OCCA case No. F-2021-1220, Aaron Struble appealed his conviction for Domestic Assault and Battery by Strangulation, After Former Conviction of Two or More Felonies. In an unpublished decision, the court decided to affirm the judgment but remand the case for resentencing to fifty years imprisonment, as originally assessed by the jury. One judge dissented. Struble was found guilty by a jury, which sentenced him to fifty years in prison. However, the trial court changed this sentence to life in prison, stating that the fifty years exceeded the maximum allowed. This was incorrect, as the fifty-year sentence was valid. The court acknowledged that the jury did not exceed the legal limits, and that the trial court’s change to life imprisonment was a mistake. Therefore, the case was sent back for proper sentencing. Struble also claimed that the prosecutor’s questions aimed at making the victim seem more sympathetic affected his right to a fair trial. However, since there were no objections during the trial to these questions, the court only looked for plain error. They determined that no major error had occurred in this matter. In summary, the court upheld the jury's conviction but pointed out the wrongfulness of the life sentence imposed by the trial court, sending the case back for the jury's original sentence to take effect.

RE-2021-1202

Post author:Staff
Post published:November 10, 2022
Post category:RE

In OCCA case No. RE-2021-1202, Jimmy Dale Jackson, Jr. appealed his conviction for violating the terms of his probation. In a published decision, the court decided to modify the revocation of his suspended sentence to six months instead of a longer term. One judge dissented. Here’s a summary of the case: Jimmy Dale Jackson, Jr. had a suspended sentence from a previous conviction for Lewd Molestation, which means he was not in prison but had to follow certain rules. In 2021, the State of Oklahoma accused him of breaking those rules. They said he did many things wrong, such as driving with a gun, using drugs, not paying the fees he needed to, and talking to a girl who was a minor, which he was told not to do. When Jackson went to the court for a hearing, the judge decided that he had indeed broken the rules, and as a result, revoked his suspended sentence completely. Jackson then appealed this decision. He argued that the judge's decision was too harsh and that he should not have been punished so severely for what he called technical violations. He also claimed that the judge improperly used the results of a lie detector test (polygraph) against him during the hearing. The court had to consider whether the judge had made a real mistake. They found out that Jackson's violations were mostly technical, meaning they were not serious crimes but rather rule-breaking issues. According to Oklahoma law, if a person on probation has technical violations for the first time, the judge can only revoke their suspended sentence for up to six months. The court decided that Jackson's violations did not include breaking any serious laws because he had never been told to follow specialized rules for sex offenders, which would have been more serious. They noted he was only accused of violating standard probation rules. Since the judge revoked his sentence for a period longer than what the law allows for technical violations, the court agreed that was a mistake. Regarding the polygraph results, Jackson's team had talked about them first, so the court said that Jackson could not complain about that now. They concluded that even without the polygraph, there were enough other reasons to revoke his probation. In the end, the court said Jackson's sentenced revocation would be adjusted to six months, meaning he would have to follow the suspension rules for just that amount of time instead of facing a longer prison term. The court emphasized that everyone must understand the rules when they are on probation and that following proper legal steps is important to ensure fairness. So, in summary, the court reduced Jackson's punishment because they found he was not given proper notice about the rules he had to follow and that he should not have been penalized so harshly for technical violations alone.

F-2021-522

Post author:Staff
Post published:October 6, 2022
Post category:F

In OCCA case No. F-2021-522, Trevor Leif Toppah appealed his conviction for Aggravated Assault and Battery, After Former Conviction of Three Felonies (Count 1), and Conspiracy to Commit Assault and Battery (Count 2). In an unpublished decision, the court decided to affirm the judgment and sentence of the district court but modified the indigent defense fee. One judge dissented regarding the evidence for the conspiracy conviction.

F-2021-49

Post author:Staff
Post published:August 18, 2022
Post category:F

In OCCA case No. F-2021-49, the Appellant appealed his conviction for using a vehicle to facilitate intentional discharge of a weapon, assault and battery with a deadly weapon, and feloniously pointing a firearm. In a published decision, the court decided to affirm the conviction for using a vehicle to facilitate the discharge of a firearm and for pointing a firearm but reversed and remanded the conviction for assault and battery with a deadly weapon with instructions to dismiss. One judge dissented regarding the interpretation of the statutes involved.

F-2021-636

Post author:Staff
Post published:August 4, 2022
Post category:F

In OCCA case No. F-2021-636, the appellant appealed his conviction for possession of explosives, possession of a stolen vehicle, using a security camera or system while committing a felony, and possession of a firearm after a former conviction of a felony. In an unpublished decision, the court decided to reverse and remand for a new trial on the charge of using a security camera while committing a felony. The court affirmed the judgment on all other counts. One judge dissented. Eric Casey Zeiset was found guilty after the jury trial in Grady County. He was sentenced to a total of 620 years in prison for multiple offenses, including possession of explosives and firearms. Zeiset challenged several aspects of the trial, specifically arguing there was not enough proof of his intent or possession of the explosives. He also claimed the trial court made mistakes in jury instructions and that his long sentence was excessive. The court examined the evidence presented during the trial. Four improvised explosive devices were found in Zeiset's home. Experts testified that the way the explosives were packaged suggested they were intended to be used harmfully. The court noted that Zeiset had a history of being armed and had surveillance cameras around his house, which supported the jury's decision on his intent to use the explosives for illegal purposes. The court addressed errors in jury instruction regarding one of the charges, ruling that the absence of required instructions on using a security camera was a significant mistake that needed to be corrected. However, the other convictions, including possession of explosives, were upheld based on the evidence provided. Overall, the court found that while there were significant points raised in the appeal, the conviction for possession of explosives was supported by enough evidence. The decision emphasized the importance of appropriate jury instructions for fair trials.

F-2021-512

Post author:Staff
Post published:August 4, 2022
Post category:F

In OCCA case No. F-2021-512, Trevor Leif Toppah appealed his conviction for Burglary in the Second Degree and Obstructing an Officer. In an unpublished decision, the court decided to affirm his judgment and sentence, except for modifying the fee assessed for his indigent defense. One judge dissented. Toppah was found guilty of second degree burglary and obstructing an officer by a district court. The burglary charge was based on the fact that he broke into a parked automobile with the intent to commit theft. During his trial, the judge considered if there was enough evidence to support the burglary conviction, focusing on whether Toppah used force to enter the vehicle and if he had the intention of stealing anything. The court reviewed the evidence and determined that it was enough for a reasonable person to believe Toppah was guilty of burglary. They noted that breaking into a car, even by just opening the door, is considered a form of breaking necessary for a burglary charge. The court also mentioned that proving intent could be done through either direct or indirect evidence, which they found sufficient in Toppah's case. Toppah raised some issues regarding money charged for his defense costs. He argued that the court charged him too much and that it should be less, as stated in the law. Although his lawyer didn’t object to this during the trial, the court noticed that they had made a mistake. They admitted that the fee should have been $250 instead of the $500 that was charged. Lastly, Toppah argued that a series of errors during his trial caused him not to receive a fair trial. However, the court found that the only error that needed correcting was the higher fee, and that this error did not affect the overall fairness of his trial. In summary, the court upheld Toppah's conviction for burglary but corrected the amount he had to pay for the public defense.

F-2021-123

Post author:Staff
Post published:July 7, 2022
Post category:F

In OCCA case No. F-2021-123, Airick William Fuller appealed his conviction for kidnapping and first-degree robbery. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Fuller was found guilty by a jury in Custer County for two counts of kidnapping and one count of robbery, having prior felony convictions. The jury gave him sentences of ten years for each kidnapping count and thirty years for the robbery, all to be served concurrently, meaning he would serve them at the same time. Fuller argued that the evidence used in the trial was not enough to prove he committed first-degree robbery and that the trial court did not inform the jury about a lesser crime, second-degree robbery. The court carefully reviewed the entire case, including the evidence and arguments from both sides. Regarding the first argument, the court stated that there was enough evidence to show that Fuller threatened a victim, Jason White, with serious harm during the robbery. Even though White did not actually see a gun, the court noted that he had reason to fear for his safety because of what had happened earlier. The court concluded that the jury could justifiably find Fuller guilty based on this evidence. For the second argument, the court explained that since Fuller did not ask for the jury to consider the lesser charge of second-degree robbery, it was difficult for him to claim a mistake was made. The court found that no errors that would have changed the outcome of the trial were made. The court confirmed the original sentences but also instructed the District Court to make sure that the official record reflected that the sentences were to be served concurrently if that had not already been done. Overall, the court affirmed the conviction and rejected Fuller’s arguments.

RE-2020-501

Post author:Staff
Post published:May 26, 2022
Post category:RE

In OCCA case No. RE-2020-501, Kaylen Harrison Rice appealed his conviction for the revocation of his suspended sentences. In a published decision, the court decided to affirm the revocation but vacated the portion that required him to remain under supervision. One judge dissented. Kaylen Harrison Rice had previously been given suspended sentences for his crimes. He was supposed to follow certain rules instead of serving time in jail, but the rules changed to make his crime less serious. A new law stated that if someone is being revoked for a crime that is now seen as less serious, their punishment must follow the new law's limits. Kaylen argued that his one-year revocation was too long given the new law. However, the court found that the existing rules and his situation didn’t allow for the changes he suggested. During his revocation hearing, Kaylen raised concerns about being supervised after his jail time, saying that the law did not allow for that kind of supervision for his crime. The State acknowledged this point but later dropped the argument, which meant the court didn't consider it. The court decided that since the State had waived its right to challenge this part, it could not revisit it in Kaylen's appeal. In conclusion, the court upheld the decision to revoke Kaylen's suspended sentences but overturned the requirement that he be supervised, which was not allowed under the new law.

F-2019-950

Post author:Staff
Post published:October 21, 2021
Post category:F

In OCCA case No. F-2019-950, Shilow Lynn Dumas appealed his conviction for Child Abuse by Injury. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court, except for a $1,000.00 fine imposed, which was stricken from the record. One judge dissented. Dumas was found guilty of injuring a child and was sentenced to five years of imprisonment after a jury trial. He raised several errors for appeal, including issues regarding jury instructions, the imposition of a fine, the sufficiency of evidence, ineffective assistance of counsel, and cumulative errors. The court reviewed the trial process and found that the jury instructions, while not ideal, did not impact Dumas's rights enough to be considered a plain error since he did not object to them during the trial. They noted Dumas's defense did not argue that his discipline was reasonable, which weakened his claims about how he should have been instructed on the law regarding discipline. The court found the trial court had made a plain error by imposing a fine after the jury did not recommend one, and thus they vacated the fine. Next, the court examined the evidence that was presented, ruling that enough evidence was available to support the jury's finding that Dumas had willfully injured the child. When looking at claims of ineffective assistance of counsel, the court decided that since Dumas did not show how he was harmed by his lawyer’s performance, his claims were unconvincing. The cumulative errors claim was also denied, as the court found no significant harmful errors besides the fine issue. Therefore, the overall decision upheld the conviction while correcting one aspect concerning the fine.

F-2019-37

Post author:Staff
Post published:June 24, 2021
Post category:F

In OCCA case No. F-2019-37, Suggs appealed his conviction for first-degree burglary. In a published decision, the court decided to reverse and remand for a new trial on that count due to an instructional error, while affirming the convictions on the other counts. One judge dissented.

F-2019-369

Post author:Staff
Post published:March 4, 2021
Post category:F

In OCCA case No. F-2019-369, Collins appealed his conviction for assault with a dangerous weapon. In a published decision, the court decided to affirm the conviction and sentence of twenty-five years imprisonment but vacated and remanded the restitution and fees due to errors in their assessment. One judge dissented. Joseph Willis Collins was found guilty by a jury for committing assault with a dangerous weapon. He faced this trial in Comanche County where he was sentenced to spend twenty-five years in prison and was ordered to pay restitution and court costs. Collins claimed that several things went wrong during his trial that justified overturning his conviction. First, Collins argued that when he asked police if he could go back downstairs, it meant he wanted to stop talking to them, and police should have immediately respected that request. He believed this request was an important part of his rights, which should not have been pushed aside during the questioning. However, the court decided that even though admitting his statements without considering his right not to speak was a mistake, it was not significant enough to change the outcome of the case because there was a lot of clear evidence proving he was guilty. Next, Collins argued that some embarrassing information from his cellphone should not have been used against him during the trial. He thought that this evidence made it hard for him to get a fair trial because it focused on his relationships in a negative way. However, the court did not find this evidence to be unfairly prejudicial, as it was used to help explain details relevant to the case. Collins also believed that his lawyer did not competently defend him, especially regarding the use of the testimony linked to the cellphone and the earlier statements made to police after he asked to stop being questioned. The court looked at all these claims and found that there were no significant mistakes made by Collins’s lawyer that affected the trial's outcome. The other issues Collins raised were about financial matters from his sentencing. Collins was ordered to pay $7,504 in restitution for the victim’s losses, but the court admitted this amount wasn't properly justified, so they decided it should be determined again. The court also acknowledged a mistake in charging Collins a $1,500 indigent defense fee instead of the maximum allowed of $1,000. There was also a dispute about the juror fees that Collins thought were incorrectly calculated, but since he did not raise this objection during the trial, the court decided not to change this part of the decision. In the end, the court upheld the conviction and the lengthy sentence Collins received. They ordered the lower court to redo the calculations for restitution and the indigent defense fee to comply with the law and ensure a fair process. The judgment of conviction and the twenty-five-year prison sentence were upheld, while the restitution and indigent fees were vacated and remanded for further action.

F-2019-588

Post author:Staff
Post published:January 14, 2021
Post category:F

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

F-2019-605

Post author:Staff
Post published:September 10, 2020
Post category:F

In OCCA case No. F-2019-605, Jerome Matthew McConell appealed his conviction for Obtaining Merchandise by False Pretenses. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court, except for certain parts which were stricken. One member of the court dissented. McConell was found guilty after a bench trial in the District Court of McCurtain County. He was sentenced to thirty months in prison, but he argued that his trial was unfair for three main reasons. First, he claimed he was not allowed to confront some witnesses properly because hearsay evidence was permitted. Hearsay is when someone testifies about what another person said outside of court, which usually isn't allowed as direct evidence. However, the court found no real error in this situation because McConell's lawyer brought up the same issues during questioning. Therefore, the court did not see a violation of his rights. Second, McConell argued that evidence from another incident should not have been allowed by the court because the state did not give proper notice about it. However, the court decided that the evidence was relevant and no mistakes were made in permitting it. Lastly, McConell noted that the written sentence and conditions after his trial did not match what was discussed in court. The judge had ordered conditions that he should not enter a casino and also mentioned costs for prosecution that were not allowed under the law. The court agreed that these parts of the judgment were incorrect and decided to strike them from his sentence. In summary, the appeals court did affirm McConell's conviction, meaning they upheld the trial's decision, but they corrected some errors in how his sentence was recorded and ordered the lower court to make those changes.

F-2019-82

Post author:Staff
Post published:August 27, 2020
Post category:F

In OCCA case No. F-2019-82, Spencer Thomas Cato appealed his conviction for various crimes including possession of a controlled drug with intent to distribute and possession of a firearm after a felony. In a published decision, the court decided to affirm most of the convictions but reversed and dismissed one count against Cato. A judge dissented regarding the dismissal of that count. Cato had been found guilty of several offenses, including having a controlled substance and firearms while being a convicted felon. During the trial, the jury sentenced him to a total of several years in prison along with fines. The judge decided some of these sentences would be served at the same time, while others would be served one after the other. Cato appealed, arguing that his rights were violated because he was punished twice for what he saw as the same action. Specifically, he felt the charges of possessing a firearm after a felony and possessing a firearm while committing a felony were not separate. Cato believed that the law should prevent him from being punished for both crimes since they stemmed from the same act of possessing the same gun with no significant break in time between the two actions. Upon reviewing the case, the court agreed with Cato’s argument. They found that there was no new evidence that suggested he had used the firearm for a different purpose at different times. The trial revealed that Cato had the gun and drugs at the same time which led to the conclusion that punishing him for both counts was not appropriate. The court decided to reverse the lesser charge and direct that it be dismissed. In summary, while some of Cato's convictions and their sentences were confirmed, the court found that he could not be punished for both possessing a firearm after a felony and possessing it while committing another felony under the circumstances of his case. Hence, they instructed the lower court to dismiss the one charge.

F-2019-417

Post author:Staff
Post published:July 30, 2020
Post category:F

In OCCA case No. F-2019-417, Henry Warren Kwe Kwe appealed his conviction for Conjoint Robbery, Shooting with Intent to Kill, Possession of a Sawed-Off Shotgun, and Leaving Scene of a Collision Involving Injury. In an unpublished decision, the court decided to affirm Kwe Kwe's convictions on all counts except for the Victim Compensation Assessment for Count 4, which was vacated. Kwe Kwe dissented. Kwe Kwe was found guilty of several serious crimes stemming from an incident involving a robbery and a shooting. The trial revealed that he, along with accomplices, confronted the victim, demanding her money while one of them displayed a weapon. When the victim attempted to call for help, she was shot in the back with a shotgun. Following this, the robbers took her purse and fled. On appeal, Kwe Kwe raised numerous issues regarding his convictions. He argued that being convicted for both robbery and shooting violated laws against multiple punishments for a single act. However, the court found that the robbery and the shooting were distinct actions. The shooting was meant to prevent the victim from escaping and to eliminate her as a witness, rather than to take possession of her belongings. Kwe Kwe also challenged the sufficiency of the evidence against him, claiming he wasn't the shooter. However, the jury had enough circumstantial evidence to conclude he aided in the crime, as he orchestrated the robbery and knew one accomplice was armed. Also, he was found in possession of a sawed-off shotgun shortly after the incident. The court held that the evidence supported the conclusion he was culpable for aiding and abetting the shooter. Another argument from Kwe Kwe revolved around the legality of the sawed-off shotgun itself. He claimed the prosecution didn't prove the shotgun's barrel was less than 18 inches, which would classify it as sawn-off under the law. Nevertheless, the officer testified that the weapon was a modified sawed-off shotgun and that the jury could determine this after examining it. Moreover, Kwe Kwe claimed that the court’s language when discussing the victim's injuries went against the norms of a fair trial. However, the court found this testimony relevant, as it demonstrated the severity of the attack and the intent behind the actions taken by Kwe Kwe and his accomplices. Lastly, he argued that his legal counsel did not perform adequately by failing to raise certain legal defenses and objections during the trial. Yet, the court determined that any such failures did not adversely affect his rights or the outcome of the case. In summary, Kwe Kwe's convictions remained intact, and while some procedural missteps were noted, none were sufficient to reverse the verdict aside from the correction regarding the Victim Compensation Assessment linked to his charge. The appellate court affirmed the lower court's decision overall, while rectifying the single financial aspect.

RE-2018-1233

Post author:Staff
Post published:March 5, 2020
Post category:RE

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

J-2019-620

Post author:Staff
Post published:February 6, 2020
Post category:J

This document is a court opinion from the Oklahoma Court of Criminal Appeals regarding the case of C.G., who was charged with First Degree Murder, First Degree Burglary, and Conspiracy to Commit Second Degree Burglary. The case revolves around the denial of C.G.'s motion to be certified as a juvenile or youthful offender, which would have allowed for a different legal treatment due to his age at the time of the offense (14 years old). Here is a summary of the key points: 1. **Background of the Case**: - C.G. was charged as an adult for serious crimes, and he filed a motion for certification as a juvenile or youthful offender. - The preliminary hearing and certification hearing took place, with conclusions drawn about C.G.'s amenability to treatment and public safety considerations. 2. **Court's Decision**: - The trial court denied C.G.'s request for certification, stating that the public could not be adequately protected if C.G. was treated as a youthful offender. - C.G. appealed this decision, raising several claims including abuse of discretion, evidentiary errors related to interrogation, and ineffective assistance of counsel. 3. **Ruling by the Court of Criminal Appeals**: - The appellate court affirmed the trial court's decision, agreeing that there was no abuse of discretion. - It also found that certain evidentiary claims were not properly presented for appeal. 4. **Dissenting Opinions**: - Two judges dissented, arguing that the evidence did not support the trial court's conclusion about public safety. - They contended that C.G. was amenable to treatment and that the trial court could still have ensured public protection through existing safeguards while classifying him as a youthful offender. - The dissenters also criticized the majority's handling of evidentiary issues, arguing that the ability to challenge the decision not to certify C.G. should include a review of the evidence that influenced that decision. 5. **Final Notes**: - The decision underscores the complexities involving juveniles charged with serious crimes and the judicial considerations balancing public safety and the potential for rehabilitation. - It emphasizes the potential limitations in appealing certain evidentiary matters in the context of certification hearings for juvenile offenders. Overall, the court affirmed the trial court's decision, while dissenting opinions highlighted concerns regarding the treatment of juvenile defendants.

F-2018-1267

Post author:Staff
Post published:February 6, 2020
Post category:F

**Case Summary: Shelley Jo Duncan's Appeal** **Court:** Oklahoma Court of Criminal Appeals **Judge:** Rowland, Judge **Case Number:** CF-2017-31 **Verdict:** Affirmed **Background:** Shelley Jo Duncan, a teacher, was charged with Lewd Acts with a Child. Her trial was conducted in Cleveland County after a change of venue due to pre-trial publicity. Duncan was sentenced to six years in prison in accordance with the jury's recommendation. **Issues Raised on Appeal:** 1. The denial of a motion to strike two jurors for cause. 2. Claims of improper commentary on her right to remain silent. 3. The credibility of the alleged victim and sufficiency of evidence for conviction. 4. Admission of other crimes evidence regarding past drug use. 5. Allegations of ineffective assistance of counsel. 6. Claims of prosecutorial misconduct during closing arguments. 7. Challenge to the excessive nature of her sentence. 8. Cumulative errors affecting the fairness of the trial. **Findings:** 1. **Jurors for Cause:** The court did not err in denying the motion to strike jurors S.M. and J.S. Duncan did not preserve her claim regarding J.S. since a peremptory challenge was successfully used to remove her from the jury. 2. **Right to Remain Silent:** Testimony regarding the investigation did not comment on Duncan’s post-arrest silence. Any potential error was cured by the court's action in sustaining objections. 3. **Credibility of Victim:** The court found the victim's testimony credible and sufficient, supporting the conviction based on the preponderance of evidence, even without corroboration. 4. **Other Crimes Evidence:** Duncan’s argument related to drug use was denied as she had introduced this evidence herself. Inviting error prevented relief. 5. **Ineffective Assistance of Counsel:** Duncan could not demonstrate that her counsel's performance was deficient or that it prejudiced her case sufficiently to impact the outcome. 6. **Prosecutorial Misconduct:** Claims of improper comments were denied, as the prosecutor’s comments did not exceed the acceptable limits of argument during closing statements. 7. **Excessive Sentence:** The six-year sentence was within statutory limits and did not shock the conscience of the court, thus it was upheld. 8. **Cumulative Effect of Errors:** The court found no cumulative errors that would necessitate a new trial or modification of the sentence, as no individual error was identified. **Conclusion:** The Oklahoma Court of Criminal Appeals affirmed the judgment and sentence of the district court. Duncan was denied relief on all issues raised in her appeal, with the court finding no significant errors affecting her right to a fair trial. **Access the full opinion:** [Download PDF of the Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1267_1734782177.pdf)

F-2018-1072

Post author:Staff
Post published:February 6, 2020
Post category:F

The document is a summary opinion issued by the Court of Criminal Appeals of Oklahoma in the case of D'Angelo Keiyawn Threatt. The appellant, Threatt, was convicted of being a felon in possession of a firearm and sentenced to eight years in prison. The opinion addresses three propositions of error raised by Threatt on appeal: 1. **Admission of Prior Felony Conviction**: Threatt contended that the trial court abused its discretion by allowing the State to name his specific prior felony conviction (forcible oral sodomy) despite his offer to stipulate that he had a felony conviction. He cited the case Old Chief v. United States to support his argument. The Court ruled that Threatt did not preserve this issue adequately for appeal due to the timing and nature of his objections and ultimately found that there was no plain error affecting his substantial rights. 2. **Prosecutorial Misconduct**: Threatt claimed that the prosecutor's closing argument included highly prejudicial statements that unfairly influenced the jury. The Court examined the statements and determined they were reasonable comments based on the evidence presented at trial. Thus, they did not constitute prosecutorial misconduct that would warrant relief. 3. **Cumulative Effect of Errors**: Threatt argued that the combined effect of the alleged errors warranted a new trial. The Court disagreed, noting that the individual errors did not affect the overall outcome of the trial and therefore did not justify relief. In conclusion, the Court affirmed the judgment and sentence imposed by the District Court of Oklahoma County, finding no reversible error in the trial proceedings. The opinion underscores the importance of proper procedural objections and the evaluation of trial conduct in the context of the entire trial. For more detailed information, a PDF of the full opinion can be downloaded from the provided link.

F-2018-114

Post author:Staff
Post published:February 6, 2020
Post category:F

In OCCA case No. F-2018-114, Andrew Huff appealed his conviction for four counts of Child Neglect and one count of Child Sexual Abuse. In a published decision, the court decided to affirm his conviction and sentence. One judge dissented. Andrew Huff was convicted of neglecting his children and sexually abusing a minor. He was sentenced to a total of twenty-five years for the neglect charges and thirty years for the sexual abuse, with all sentences running concurrently. He raised several arguments against his conviction, claiming his rights were violated through various means. First, Huff stated that his video-recorded statements to an investigator should not have been allowed in court because he didn't properly waive his right to counsel. The court found no error in admitting the statement, stating that Huff’s questioning did not clearly indicate he wanted a lawyer at that moment. Next, Huff argued that hearsay evidence was incorrectly allowed, which hurt his chance of a fair trial. However, the court found that any hearsay used was not harmful to the case since other clear evidence proved the charges. Huff also claimed improper admission of other crimes evidence during his police interview, but again, the court concluded there was enough evidence for a verdict regardless of those statements. Regarding jury instructions, Huff felt the jury did not receive proper guidance on the laws for child sexual abuse, which the court acknowledged but deemed harmless since overwhelming evidence supported the verdict. Huff’s claim of insufficient evidence was denied as the court found that evidence presented allowed for rational conclusions supporting the guilty verdicts on both child neglect and sexual abuse. He also brought up issues regarding prosecutorial misconduct during the trial. The court examined these claims and determined any alleged misconduct was not severe enough to warrant a reversal of the conviction. Huff argued that his counsel was ineffective for not objecting to the introduction of certain evidence and not properly advising him during the trial. The court disagreed, stating that the counsel's performance, while being scrutinized, did not affect the overall outcome of the trial as there was sufficient evidence against him. Lastly, Huff believed that his sentence was excessive, but the court noted that the punishment was within legal limits and that the nature of the crimes warranted the sentence imposed. The overall decision confirmed that there were no reversible errors during the trial, and the affirmance upheld Andrew Huff’s conviction and sentences.

F-2018-1186

Post author:Staff
Post published:January 30, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DOMINICK JAVON SMITH, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** **Case No. F-2018-1186** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN 30 2020** --- **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **LUMPKIN, JUDGE:** Appellant, Dominick Javon Smith, was tried by jury and convicted of Child Neglect, After Former Conviction of a Felony, 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 punishment of forty years imprisonment and payment of a $5,000.00 fine. The trial court sentenced Appellant accordingly; she will serve 85% of her sentence before becoming eligible for parole consideration. From this judgment and sentence, Appellant appeals, raising three propositions of error: **I.** The trial court erred in permitting the State to cross-examine Dominick Smith in the punishment stage on matters not relevant to her alleged prior felony conviction. **II.** Prosecutorial misconduct deprived Appellant of a fair trial. **III.** Appellant was deprived of effective assistance of counsel. After thorough consideration of the record, including the original documents and briefs, we find that under the law and evidence, Appellant is not entitled to relief. In her first proposition, Appellant claims that the trial court improperly allowed the prosecutor to question her about matters irrelevant to her prior felony conviction. While defense counsel objected multiple times, only two objections referenced relevance. Therefore, the remainder is assessed under plain error review. Under the Simpson test, we assess actual error that is plain or obvious and that affects substantial rights. The trial court's limitations on cross-examination are generally reviewed for abuse of discretion. During the punishment phase, Appellant testified on direct that she had a prior felony conviction for child abuse. On cross-examination, the prosecutor questioned Appellant about conflicting statements made to police, thereby attempting to impeach her credibility. Given that Appellant opened the door to her prior conviction and explanation, there was no error in allowing such cross-examination. Proposition I is denied. In Proposition II, Appellant contends prosecutorial misconduct occurred during closing arguments when the prosecutor suggested that Santa Claus may have caused the victim's injuries and discussed how Appellant's actions deprived K.O. of life experiences. As Appellant failed to object, we review these claims for plain error. The prosecutor's remarks were within acceptable boundaries as they focused on the evidence and reasonable inferences. Appellant's claim that the argument improperly sought sympathy for K.O. does not render it improper. The remarks about the consequences of Appellant's actions are relevant and permissible. Thus, Proposition II is denied. Lastly, in Proposition III, Appellant claims ineffective assistance of counsel for failing to object to the prosecutor's cross-examination and closing argument. Under the Strickland test, the claims of ineffectiveness can be dismissed due to lack of demonstrated error in the prosecutor’s conduct. Since neither allegation resulted in plain error, the claim of ineffective assistance fails. Thus, Proposition III is denied. **DECISION** The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. --- *Counsel for Appellant: Richard Koller, Richard Couch, Rebecca Newman* *Counsel for the State: Mike Hunter, Andrea Brown, Keeley L. Miller* **OPINION BY: LUMPKIN, J.** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur [Download Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1186_1734785732.pdf)

F-2018-1061

Post author:Staff
Post published:January 30, 2020
Post category:F

**Court of Criminal Appeals of the State of Oklahoma** **Case Summary: Joshua Loyd Bullard v. The State of Oklahoma** **Case No.: F-2018-1061** **Date Filed:** January 30, 2020 --- **Overview:** Joshua Loyd Bullard was convicted in the District Court of Stephens County for several offenses, including Petit Larceny, Resisting a Peace Officer, and Assault and Battery on a Police Officer. The jury determined sentences for each count, ultimately resulting in consecutive sentences totaling eight years, along with fines. Bullard appealed on two grounds: ineffective assistance of counsel and prosecutorial misconduct. --- **Propositions of Error:** 1. **Ineffective Assistance of Counsel:** - Claim: Bullard contended that his attorney failed to request a third competency evaluation. - Analysis: The court assessed this claim based on the two-pronged test from *Strickland v. Washington*. It determined that defense counsel did not provide deficient performance, noting that two prior evaluations had confirmed Bullard's competency. There was no evidence suggesting a change in Bullard's mental state warranting further evaluation. Thus, the court ruled that there was no ineffective assistance. 2. **Prosecutorial Misconduct:** - Claim: Bullard argued that improper comments by the prosecutor regarding his prior suspended sentence during closing arguments prejudiced his trial. - Analysis: The court found that without objection from Bullard's counsel, review was limited to plain error. The court determined that the prosecutor’s references were permissible as they pertained to relevant evidence of prior convictions. Furthermore, the outcome of the sentencing showed that the jury's verdict was reasonable and not influenced by any improper statements. --- **Decision:** The appeals court affirmed the judgment and sentence imposed by the District Court, finding no merit in either of Bullard's propositions for appeal. **Judgment: AFFIRMED.** --- **Note:** The decision referenced case law and standards concerning competency evaluations and prosecutorial conduct during trials, underscoring the adherence to procedural norms. **For the Full Text Access:** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1061_1734859049.pdf)

F-2018-975

Post author:Staff
Post published:January 30, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MICKEY JOE EDWARD RICHARDSON,** **Appellant,** **VS.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-975** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN 30 2020** --- **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Mickey Joe Edward Richardson, was convicted by a jury in Haskell County District Court, Case No. CF-2016-91, of several crimes, receiving the following sentences: - **Assault and Battery on a Police Officer**, After Conviction of a Felony (Count 1) - **5 years** - **Larceny of an Automobile**, After Conviction of a Felony (Count 2) - **20 years** - **Feloniously Pointing a Firearm**, After Conviction of a Felony (Count 4) - **30 years** - **Felon in Possession of a Firearm**, After Conviction of a Felony (Count 5) - **Life** - **Escape from Detention** (Count 8) - **1 year** On September 11, 2018, the trial court, presided by the Honorable Brian C. Henderson, Associate District Judge, imposed the jury-recommended sentences to be served consecutively. This appeal followed. Appellant raises six propositions of error: 1. **Misinstruction on Sentencing Range** for Possession of a Firearm After Conviction of a Felony. 2. **Violation of Fourteenth Amendment Due Process** regarding jury instructions. 3. **Improper Victim Impact Statements** affecting the fairness of the sentencing hearing. 4. **Abuse of Discretion** with respect to the policy of consecutive sentencing. 5. **Ineffective Assistance of Trial Counsel** violating constitutional rights. 6. **Cumulative Errors** affecting the fairness of the proceedings. After thorough consideration of the propositions, briefs, and the entire record, we affirm. Appellant was convicted after attacking a sheriff’s deputy, stealing a patrol car, and attempting to evade other officers. ### Analysis of Propositions: **Proposition I: Misinstruction on Sentencing Range** Appellant claims misinstruction regarding the sentencing range for Count 5, asserting it should be one to ten years under 21 O.S. 2011, § 1284. However, the jury was properly instructed on the sentencing range pursuant to 21 O.S.2011, §§ 51.1(A)(2) and 1284. **Proposition II: Jury Instruction on Statement Voluntariness** Appellant argues the trial court erred by not instructing the jury on the voluntariness of his statement to police. As Appellant testified and did not claim the statements were involuntary, this contention lacks merit. **Proposition III: Victim Impact Statements** Appellant objected to victim impact statements, claiming they were inadmissible since the crimes were not violent. However, one conviction (Pointing a Firearm) was classified as a violent crime, making the inclusion of the statements appropriate. **Proposition IV: Consecutive Sentencing Policy** Appellant alleges the trial court enforced a policy of consecutive sentencing for defendants who exercise their right to a jury trial. The record indicates the trial court exercised discretion properly, adhering to the statutory default for consecutive sentences. **Proposition V: Ineffective Assistance of Counsel** Appellant contends his trial counsel was ineffective for not objecting to previous claims. As we found those claims meritless, trial counsel cannot be faulted for failing to raise meritless objections. **Proposition VI: Cumulative Errors** No errors were identified in prior propositions, thus, there are no cumulative errors to evaluate. ### Decision The Judgment and Sentence of the District Court of Haskell County is **AFFIRMED**. Pursuant to Rule 3.15, the MANDATE is ordered issued upon the delivery and filing of this decision. --- **Appeal from the District Court of Haskell County** **The Honorable BRIAN C. HENDERSON, Associate District Judge** **Attorneys for Appellant: ROGER HILFIGER, SARAH MACNIVEN** **Attorneys for Appellee: CHRISTINA BURNS, MIKE HUNTER, ASHLEY L. WILLIS** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-975_1734872271.pdf)

F-2018-957

Post author:Staff
Post published:January 30, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DUSTIN SCOTT PATTON,** Appellant, Case No. F-2018-957 **V.** **STATE OF OKLAHOMA,** Appellee. **SUMMARY OPINION** **HUDSON, JUDGE:** Dustin Scott Patton was convicted in the District Court of Kay County, Case No. CF-2017-258, of Assault and Battery with a Deadly Weapon, violating 21 O.S.2011, § 652(C). A jury recommended a ten-year sentence, and Honorable David Bandy, District Judge, imposed the sentence as per the jury's verdict. Patton appeals with two propositions of error. 1. **The modified jury instruction improperly relieved the State of proving an essential element of the crime charged.** 2. **Appellant was deprived of a fair trial due to numerous pleas for sympathy for the victim during trial.** Upon thorough review of the record and arguments presented, we find no grounds for relief. Patton's judgment and sentence are **AFFIRMED**. **Proposition I:** Patton concedes he did not object to Instruction No. 24 at trial, necessitating plain error review. To establish plain error, Patton must show an actual error that is obvious and affects his substantial rights. Previous case law indicates that certain weapons, like knives, are per se deadly weapons. Instruction No. 24, which classified a knife as a deadly weapon, was not erroneous, and thus Proposition I is **denied**. **Proposition II:** For prosecutorial misconduct claims, relief is granted only if the misconduct renders the trial fundamentally unfair. Patton only objected to the display of the victim’s scars. The presentation of the victim’s injuries primarily served to illustrate the crime's severity and the use of force, which was pertinent to the charges against Patton. This evidence was not unduly prejudicial, and thus, Proposition II is also **denied**. **DECISION:** The District Court's Judgment and Sentence are **AFFIRMED**. *Issued upon the delivery and filing of this decision.* **OPINION BY:** HUDSON, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. --- For further details, you can download the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-957_1734873972.pdf).

F-2018-823

Post author:Staff
Post published:January 30, 2020
Post category:F

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