Plain Error

F-2018-814

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-814** **MELINDA GAYLE HENRY,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. --- **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** Appellant, Melinda Gayle Henry, was convicted by jury of Embezzlement, in violation of 21 O.S.Supp.2012, § 1451, in the District Court of Nowata County Case Number CF-2016-71. The jury recommended a punishment of five years imprisonment and a fine of $10,000.00, which the trial court imposed. Appellant now appeals this judgment and sentence. **Propositions of Error:** 1. **Ineffective Assistance of Counsel:** Appellant contends trial counsel was ineffective for failing to secure necessary discovery. 2. **Failure to Request Continuance:** Appellant also asserts counsel was ineffective for not seeking a continuance for trial. 3. **Plain Error:** Lastly, Appellant claims the trial court committed plain error by proceeding to trial with unprepared counsel. **Analysis:** **Propositions One and Two (Ineffective Assistance of Counsel):** Under the Strickland v. Washington framework, Appellant must show (1) that counsel's performance was deficient and (2) that the deficiency prejudiced the defense. There is a strong presumption that counsel's conduct falls within a range of reasonable professional assistance. In Proposition One, Appellant argues that her counsel did not obtain critical records from the victim, The Woodshed convenience store, potentially impacting her defense. Counsel did request the records but believed they were destroyed. The trial court found that the State had offered access to the records, which the defense did not utilize. Appellant's assertion lacks evidence that obtaining these records would have changed the outcome of her trial; thus, this claim is speculative and fails to demonstrate prejudice. In Proposition Two, Appellant claims counsel was ineffective for not requesting a continuance due to the lack of records. However, the trial court's history with the case and previous findings suggested a request for a continuance would have been denied. Therefore, counsel would not be ineffective for abandoning a baseless motion. **Proposition Three (Plain Error):** Appellant's final claim of plain error regarding the trial being held without sufficient preparation fails under Rule 3.5(A)(5) of the Oklahoma Court of Criminal Appeals, which requires specific citations to the record. This assertion is superficial and unsubstantiated, leading to its waiver from appellate review. **Decision:** The judgment and sentence are **AFFIRMED**. **Mandate Ordered.** --- **APPEARANCES:** **AT TRIAL:** - **Mark Kane, Counsel for Appellant** - **Mike Hunter, Attorney General of Oklahoma; Kevin Buchanan, Assistant District Attorney for the State** **ON APPEAL:** - **Kevin D. Adams, Counsel for Appellant** - **Katherine R. Morelli, Assistant Attorney General for the State** **OPINION BY:** **LUMPKIN, J.** **LEWIS, P.J., KUEHN, V.P.J., HUDSON, J., ROWLAND, J.:** Concur in Result [Download Full Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-814_1735213396.pdf)

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F-2018-624

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**Case Summary: Bryon Lynd Gordon v. The State of Oklahoma** **Court:** Oklahoma Court of Criminal Appeals **Case No.:** F-2018-624 **Date Filed:** October 3, 2019 **Judges:** Lumpkin (Majority Opinion), Lewis (Partial Concurrence and Dissent), Kuehn (Partial Concurrence and Dissent) **Background:** Bryon Lynd Gordon was convicted by a jury in the District Court of Bryan County for Forcible Oral Sodomy (Count 1), and the jury recommended a ten-year prison sentence. Gordon appealed the conviction, raising several points of error relating to the trial proceedings. **Key Propositions Raised on Appeal:** 1. **Competency of Witness:** Gordon argued the trial court abused its discretion by ruling the alleged victim, R.S., competent to testify without an inquiry into his ability to distinguish between truth and fiction. The court found that R.S. demonstrated competency and the ruling was not an abuse of discretion. 2. **Preliminary Hearing Testimony:** Gordon contended that the magistrate abused discretion by allowing R.S. to testify at the preliminary hearing without confirming his competency. However, the court ruled that the failure to file a motion to quash before trial waived this claim. 3. **Admission of Hearsay Evidence:** Gordon claimed that the trial court erred by admitting unreliable hearsay statements made by R.S. without a required reliability hearing. The court recognized the error but deemed it harmless, asserting that the statements were inherently trustworthy based on available evidence. 4. **Sufficiency of Evidence:** Gordon argued that R.S.’s testimony was inconsistent and required corroboration. The court ruled that the victim's testimony was sufficient to sustain the conviction without the need for corroboration as the testimony was clear and coherent regarding the acts committed. 5. **Jury Instructions:** Gordon contended that the jury should have been instructed on how to handle R.S.’s prior inconsistent statements. The court found this omission did not affect the outcome of the trial. 6. **Vouching for Credibility:** Gordon argued that a witness, Palmore, impermissibly vouched for R.S.’s credibility. The court acknowledged this was error but did not rise to the level of plain error as it did not affect the trial's outcome. 7. **Ineffective Assistance of Counsel:** Gordon claimed his counsel failed to request certain jury instructions and did not object to Palmore's testimony. The court found no basis for an ineffective assistance claim as Gordon failed to show a reasonable probability that the trial outcome would have been different with better representation. 8. **Cumulative Errors:** Gordon finally argued that the accumulation of errors deprived him of a fair trial. The court concluded that since the individual errors were found to be harmless, their cumulative effect did not warrant relief. **Decision:** The Oklahoma Court of Criminal Appeals affirmed the judgment and sentence of the trial court, stating that after reviewing the entire record, no reversible errors were found that affected Gordon's substantial rights. **Outcome:** Judgment and sentence affirmed. **Dissenting Opinions:** Judges Lewis and Kuehn provided partial dissent regarding the handling of preliminary hearing procedures and the application of plain error review, suggesting that certain errors and the lack of timely objections should still be considered under principles of fairness and justice. For the full opinion, you can [download the PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-624_1735226692.pdf).

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RE-2018-348

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In the case of Darrin Wayne Culley v. The State of Oklahoma, the Court of Criminal Appeals reviewed the appellant's appeal from the partial revocation of his suspended sentence. Culley had initially entered a plea of nolo contendere to a charge of Child Abuse and was sentenced to fifteen years imprisonment, which was suspended. However, after a motion to revoke his suspended sentence was filed due to new charges of Domestic Abuse, Culley stipulated to the allegations against him and accepted a plea agreement. Culley raised two main propositions of error in his appeal: 1. He argued that the revocation hearing violated his due process rights because his stipulation was not made knowingly and voluntarily. He claimed that he felt rushed and pressured into making his stipulation and that he had not been adequately informed about potential defenses to the allegations against him. 2. He contended that he received ineffective assistance of counsel, resulting in a poor decision to stipulate to the State's revocation application. The court addressed both propositions together. They noted that Culley did not claim that he was deprived of the minimum due process rights established in Morrissey v. Brewer but instead argued that counsel’s actions made his stipulation invalid. The court emphasized that the trial judge had thoroughly questioned Culley regarding his stipulation, confirming that he was acting voluntarily and understood the implications of his decision. The court concluded that his stipulation was indeed made knowingly and voluntarily. Regarding the claim of ineffective assistance, the court applied the Strickland v. Washington standard, which requires showing that the lawyer's performance was deficient and that this deficiency prejudiced the defendant. The court found that Culley did not establish that his counsel's performance was objectively unreasonable or that he was prejudiced by his representation. Ultimately, the Court affirmed the partial revocation of Culley's suspended sentence, finding no merit in his claims. The ruling highlights the importance of thorough questioning and confirmation by the court to ensure that a defendant's rights are protected during such proceedings.

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F-2018-964

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In the case of Robert Paul Lockner, Sr. v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals reviewed Lockner's conviction for assault and battery against police officers. Lockner was sentenced to four years in prison for each of the two counts, to be served consecutively. He raised several arguments on appeal, which the court addressed. 1. **Self-Defense Instruction**: Lockner contended that the trial court erred by not providing a jury instruction on self-defense. However, the court upheld that the trial court acted within its discretion, asserting that Lockner did not demonstrate entitlement to such an instruction as per the law governing use of force by police officers in effecting an arrest. 2. **Other Crimes Evidence**: Lockner argued that the introduction of evidence showing methamphetamine in his system at the time of arrest was improper because the state failed to notify him beforehand. The court found that this evidence was part of the res gestae of the charged offense, meaning it was closely connected to the events of the crime. Therefore, it was not subject to the notice requirement. They ruled that the evidence’s probative value outweighed any prejudicial effect. 3. **Cumulative Error Doctrine**: Lockner claimed that the combined effect of multiple alleged errors warranted a new trial. The court determined that since no individual error was sustained, there was no basis for a cumulative error claim. Ultimately, the court affirmed the judgment and sentence of the district court, concluding that Lockner's rights had not been violated and he had not demonstrated any errors that would warrant reversal of his conviction. In a special concurrence, Judge Kuehn elaborated on the inadmissibility of the drug test results in the state’s case-in-chief, but agreed that their eventual admission did not affect Lockner’s substantial rights due to the potential for impeachment in his own testimony. The decision from the Oklahoma Court of Criminal Appeals ensures that Lockner's conviction stands, as all claims for relief were denied.

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F-2018-893

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The case presented involves D'Angelo Landon Burgess, who appealed the acceleration of his deferred sentence stemming from a guilty plea to Grand Larceny. The Oklahoma County District Court had originally awarded him a five-year deferred sentence in 2013. However, in 2017, the State sought to accelerate this sentence due to new offenses, including a high-speed chase and the resulting charges. The appeal centers around a claim of a lack of diligent prosecution by the State, which Burgess argued deprived him of his due process rights. However, the court determined that there was no plain error, meaning that the proceedings followed legal protocols adequately and Burgess had not demonstrated harm from the timing of the acceleration hearing. The court affirmed the district court's decision, stating that accelerations of deferred sentences do not require the same level of due process protections as full criminal proceedings. The decision also referenced a related case in which Burgess faced serious charges, including first-degree murder, which is currently under appeal. The court's opinion concluded with affirming the order of the district court to accelerate Burgess's deferred sentence. In conclusion, the Oklahoma Court of Criminal Appeals upheld the acceleration of Burgess's sentence, ruling there was no violation of due process and that the district court acted within its discretion.

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F-2018-629

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**IN THE COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **BRIAN KEITH FULLERTON,** Appellant, vs. **THE STATE OF OKLAHOMA,** Appellee. **No. F-2018-629** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA SEP 26 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Brian Keith Fullerton, was convicted by a jury in Oklahoma County District Court, Case No. CF-2016-4430, of four counts of Lewd Acts with a Child Under Sixteen. The Honorable Bill Graves, District Judge, sentenced him in accordance with the jury's recommendation to life imprisonment on each count, with the sentences to be served as follows: two pairs of life terms to run concurrently, with one pair served consecutively to the other. Appellant must serve 85% of each sentence before being considered for parole. Appellant raises four propositions of error in support of his appeal: **PROPOSITION I:** The evidence is insufficient to sustain a conviction for both Count 1 and Count 2 Lewd Acts with a Child Under the Age of Sixteen because the State failed to prove Mr. Fullerton touched L.D. on the vagina more than once. **PROPOSITION II:** The information filed in this case was insufficient as it failed to apprize Mr. Fullerton of what he was charged with and was not specific enough to allow him to plead former jeopardy should the State seek to file other charges, in violation of the due process clauses of the Federal and State Constitutions. **PROPOSITION III:** The prosecutors invoked improper sympathy toward the victim, L.D., and appealed to the jury's emotions, violating Mr. Fullerton's right to a fair trial. **PROPOSITION IV:** Trial errors, when considered in an accumulative fashion, warrant a new trial. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. **Analysis of Propositions:** 1. **Proposition I:** Appellant claims the victim's statements were too vague for the jury to reasonably find he committed the acts described in Counts 1 and 2 more than once. However, the Court found the victim's consistent statements to family, the forensic interviewer, and her anatomical drawing support the conviction on both counts. The evidence was deemed sufficient as per precedent. 2. **Proposition II:** The Court noted that since Appellant did not challenge the specificity of the Information at trial, this complaint was waived except for plain error. The factual allegations of the Information were sufficient for Appellant to prepare a defense and to advance a plea of former jeopardy for similar subsequent charges. No error was found. 3. **Proposition III:** Appellant argued that the prosecutor's closing remarks improperly invoked sympathy for the victim. With no objection raised at the time of the closing argument, the Court reviewed for plain error and found no basis for relief, as the comments were grounded in the evidence presented at trial. 4. **Proposition IV:** The Court determined that since no errors were identified in the prior propositions, there could not be cumulative error. **DECISION:** The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. --- **APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE BILL GRAVES, DISTRICT JUDGE** **ATTORNEYS AT TRIAL** KENDA MCINTOSH MELTEM KARLA TANKUT ASST. PUBLIC DEFENDER OKLAHOMA COUNTY **ATTORNEYS ON APPEAL** HALLIE ELIZABETH BOVOS ASST. PUBLIC DEFENDER OKLAHOMA COUNTY **COUNSEL FOR DEFENDANT** **COUNSEL FOR APPELLEE** MEREDITH EASTER MIKE HUNTER MCKENZIE MCMAHAN ASST. DISTRICT ATTORNEYS OKLAHOMA COUNTY --- **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR IN RESULTS** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR**

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F-2018-616

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **HEATHER SUZANNE BARBEE, Appellant,** **vs.** **THE STATE OF OKLAHOMA, Appellee.** **No. F-2018-616** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 26, 2019** SUMMARY OPINION **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Heather Suzanne Barbee, was convicted by a jury in Muskogee County District Court, Case No. F-2017-190, of Sexual Exploitation of a Child. On June 14, 2018, the Honorable Michael Norman, District Judge, sentenced her to thirty-three years imprisonment, in accordance with the jury's recommendation. She must serve 85% of her sentence before parole consideration. Appellant raises six propositions of error in support of her appeal: **PROPOSITION I:** THE TRIAL JUDGE ERRED BY HOLDING A TWO-STAGE TRIAL INSTEAD OF A ONE-STAGE TRIAL. **PROPOSITION II:** THE STATE'S DECISION TO PROCEED WITH A TWO-STAGE TRIAL WITHOUT ANY PROOF OF FORMER FELONIES CAUSED HARM TO Ms. BARBEE. **PROPOSITION III:** PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION IV:** INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION V:** THE SENTENCE WAS EXCESSIVE. **PROPOSITION VI:** CUMULATIVE ERROR DEPRIVED Ms. BARBEE OF A FAIR TRIAL. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was charged with sexually exploiting her minor sister for financial gain. The State charged two counts, but the jury found her guilty of only one. As to Propositions I and II, the record indicates that (1) Appellant had prior convictions used to enhance the sentence on one of the two charges she faced; (2) the trial was bifurcated as to both charges; but (3) the jury acquitted Appellant of the enhanced count. Thus, the jury sentenced Appellant as a first offender on the remaining charge, and never heard about the prior convictions. The procedure used was entirely proper, and Appellant fails to show any prejudice from it. *Wisdom v. State*, 1996 OK CR 22, 99 17-20, 918 P.2d 384, 390; *Marshall v. State*, 2010 OK CR 8, I 58, 232 P.3d 467, 481. Propositions I and II are denied. In Proposition III, Appellant alleges six instances of prosecutorial misconduct. Because she did not object to these comments below, we review them only for plain error - an actual error, that is plain or obvious, and that affects a defendant's substantial rights and the outcome of the trial. *Bosse v. State*, 2017 OK CR 10, 9 82, 400 P.3d 834, 863. We find no error. First, the prosecutor did not impermissibly comment on Appellant's failure to testify simply by arguing that the jury had received absolutely nothing to contradict the testimony of the State's primary witnesses. Such general comments about the totality of the evidence (and lack of controverting evidence) differ from directly suggesting that the defendant must be guilty because she did not take the stand. *Id.*, 2017 OK CR 10, I 85, 400 P.3d at 863. The prosecutor never shirked her burden to prove all elements of the crime. Second, the prosecutor did not vouch for the credibility of complaining witnesses by pointing to their demeanor and the consistency in their accounts; these comments were properly based on evidence presented to the jury. *Taylor v. State*, 2011 OK CR 8, I 57, 248 P.3d 362, 379; *Bland v. State*, 2000 OK CR 11, I 97, 4 P.3d 702, 728. Third, the prosecutor's assessment of the defense strategy as smoke and mirrors and intellectually disingenuous, and her statement, Ladies and gentlemen, she is guilty, were also fair inferences from the evidence presented. *Harris v. State*, 2000 OK CR 20, I 35, 13 P.3d 489, 498. Fourth, assertions of the defendant's guilt are not improper if they are made with reference to the evidence presented. *Williams v. State*, 2008 OK CR 19, I 107, 188 P.3d 208, 228. Fifth, asking the jury to consider the long-term effects of the defendant's conduct on the victim when assessing the sentence was not plainly erroneous. *Carol v. State*, 1988 OK CR 114, I 10, 756 P.2d 614, 617. We note that the jury recommended a sentence less than the 40-year sentence requested by the prosecutor. Finally, the prosecutor's reference in the punishment stage to acquitted conduct (Count 2, the charge on which the jury found Appellant not guilty in the first stage of the trial) was not improper. The jury was still free to consider that conduct, because it was not an element the State had to prove beyond a reasonable doubt with regard to sentencing on Count 1. *See Dowling v. United States*, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). We find no error in the prosecutor's comments such as would warrant any relief. Proposition III is denied. In Proposition IV, Appellant faults trial counsel for not making objections to the issues raised in Propositions I, II, and III. To show trial counsel was ineffective, she must show both deficient performance and prejudice. *Strickland v. Washington*, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); *White v. State*, 2019 OK CR 2, I 23, 437 P.3d 1061, 1070. Because we found no merit to these substantive complaints, trial counsel was not ineffective. *Jackson v. State*, 2016 OK CR 5, I 13, 371 P.3d 1120, 1123. Proposition IV is denied. As to Proposition V, given Appellant's conduct in this case, the sentence recommended by the jury (less than what the prosecutor requested) was not shocking to the conscience, and the trial court's order that the sentence be served consecutively to Appellant's sentence in an unrelated case was not an abuse of discretion. *White*, 2019 OK CR 2, I 29, 437 P.3d at 1072. As to Proposition VI, because no error has been identified above, there can be no relief for cumulative error. *Engles v. State*, 2015 OK CR 17, I 13, 366 P.3d 311, 315. Proposition VI is denied. **DECISION** The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY THE HONORABLE MICHAEL NORMAN, DISTRICT JUDGE **ATTORNEYS AT TRIAL** DAN MEDLOCK MEDLOCK LAW 620 WEST BROADWAY MUSKOGEE, OK 74401 **COUNSEL FOR DEFENDANT** **ATTORNEYS ON APPEAL** LISBETH L. MCCARTY INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR APPELLANT** NALANI CHING ASST. DISTRICT ATTORNEY DISTRICT ATTORNEY'S OFFICE KEELEY L. MILLER ASST. ATTORNEY GENERAL 220 STATE STREET MUSKOGEE, OK 74401 **COUNSEL FOR THE STATE** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-616_1735230080.pdf)

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F-2018-477

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In OCCA case No. F-2018-477, Gerald L. Taylor appealed his conviction for Robbery with a Firearm and Unlawful Possession of a Firearm by a Convicted Felon. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Gerald L. Taylor was found guilty of serious crimes, including robbery using a firearm and having a firearm when he was not allowed to have one due to past convictions. The trial took place in Oklahoma County, where the judge sentenced Taylor to a total of thirty-five years in prison. Taylor raised several issues on appeal. First, he argued that his incriminating statements should not have been allowed in court because he wanted to remain silent. The court looked at whether he had clearly stated this right. It found that even though he initially said he didn’t want to talk, he later chose to answer questions. Therefore, the court believed he willingly spoke to police after being informed of his rights and upheld the decision to admit his statements. Second, Taylor claimed that the trial judge made a mistake by not allowing the removal of a juror who he thought could not understand English well enough to participate in the trial. However, the judge questioned the juror and decided she was competent. Since Taylor had not properly objected to the juror's presence and even invited the situation, this issue was not considered a strong point for his appeal. Third, Taylor stated that his lawyer did not help him effectively, especially concerning the juror issue. However, the court found that despite any possible mistakes, the evidence against Taylor was very strong. His lawyer’s actions did not cause him to lose a fair trial. Lastly, Taylor claimed that even if no single error was enough to change his conviction, the overall combination of issues should lead to a new trial. The court ruled that there were no errors significant enough to warrant a new trial or change in his sentence. In conclusion, the court upheld the original judgment and Taylor's sentences, indicating that he received a fair trial despite his complaints.

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F-2018-341

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In OCCA case No. F-2018-341, Anthony Kejuan Day appealed his conviction for several charges. In a published decision, the court decided to affirm the judgment and sentence against him. One judge dissented. Mr. Day was convicted of assault and battery on a police officer, conspiracy to cause violence, possession of a firearm after a felony conviction, obstructing an officer, and resisting an officer. The trial court sentenced him to a total of twenty-five years for the first charge, with additional long sentences for the others. Mr. Day argued that the trial court made several mistakes. He claimed that the prosecution unfairly excluded African-American jurors, that changes to the charges against him were wrong, that he was punished too harshly for similar actions, and that his sentences should not have run one after the other but rather together. The court examined each argument. For the claim about jurors, it decided that the trial court acted properly and that there was no discrimination. Regarding the changes to the charges, the court found no clear mistakes that would have harmed Mr. Day's case. The court also rejected his argument about facing double punishment for similar offenses. Finally, it determined that the trial court was correct in allowing the sentences to be served consecutively. In conclusion, the court upheld the decision of the trial court and affirmed Mr. Day's convictions and sentences.

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F-2018-36

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

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F-2018-940

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In the case of LeJeanna Sue Chronister v. State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed several appeals raised by the appellant following her conviction for Aggravated Manufacture of a Controlled Substance (Methamphetamine) and her subsequent sentencing to twenty years in prison. The appellant raised three primary propositions of error: 1. **Violation of Rights Regarding the 85% Rule**: The appellant contended that her sentence was unconstitutional because she was not informed that the 85% Rule (requiring her to serve 85% of her sentence before becoming eligible for parole) applied to her case. The court concluded that this argument did not hold merit in a non-jury trial setting, stating that the judge, not a jury, was responsible for sentencing and presumed to know the law. The court found no plain error as the sentence was within the statutory range and was the minimum allowed. 2. **Ineffective Assistance of Counsel**: The appellant claimed her counsel was ineffective for not informing her about the 85% Rule, impacting her decision-making during her trial. The court applied the Strickland standard to evaluate the ineffectiveness claim, concluding that the appellant did not demonstrate how the alleged deficiency in counsel's performance prejudiced her case or altered the outcome. 3. **Cumulative Error**: The appellant argued that the combination of errors denied her a fair trial. The court determined that since none of the individual claims of error warranted relief, the cumulative error argument also lacked merit. Ultimately, the court affirmed the judgment and sentence imposed by the District Court of LeFlore County, stating that the appellant had not demonstrated any error that would necessitate modifying the sentence or overturning the conviction. The ruling emphasizes the distinction between non-jury trials and jury trials concerning informing defendants about parole-related laws and the importance of counsel's performance under the criteria established by the Strickland case.

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F-2018-867

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BILLIE WAYNE BYRD,** Appellant, vs. **THE STATE OF OKLAHOMA,** Appellee. **No. F-2018-867** **Not for Publication** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **SEP 19 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Billie Wayne Byrd was tried by jury and convicted of Child Sexual Abuse - Under 12 in violation of 21 O.S.Supp.2014, § 843.5(F), in the District Court of Muskogee County, Case No. CF-2017-621. Following the jury's recommendation, the Honorable Norman D. Thygesen sentenced Appellant to twenty-five (25) years imprisonment, with a three-year term of post-imprisonment supervision. Appellant appeals this conviction and sentence. **Propositions of Error:** 1. Plain error occurred when the jury sought to see the judge but was directed to submit any question in writing. 2. Prosecutorial misconduct deprived Appellant of a fair trial. **Analysis:** After thorough consideration of the entire record, including the original record, transcripts, exhibits, and briefs, we find that the law and evidence do not require relief. **Proposition I: Jury Communication** We find that the trial court's failure to follow the mandatory procedure set forth in 22 O.S.2011, § 894 did not prejudice Appellant. He did not object to the use of written communication, so we review for plain error. Plain error must be an actual error that is evident and affects the defendant's substantial rights (Thompson v. State, 2018 OK CR 5). Jurors seeking information during deliberations must require the officer to conduct them into court, and answers must be given in the presence of, or after notice to, counsel and the defendant. The written response to a juror question is a plain violation of the statute (Nicholson v. State, 2018 OK CR 10). While we presume prejudice due to this error, it can be rebutted by demonstrating there was no actual prejudice. Here, the jury's questions were addressed accurately and appropriately. The judge's written response to the jurors' first inquiry did not prejudice Appellant. The second question resulted in a prompt indication for further written inquiries, which indicates communication continued rather than being foreclosed. Ultimately, no actual prejudice against the Appellant is evident on the face of the record. The minimum sentence imposed and lack of indications of serious jury concerns further support no shown prejudice. Thus, we find no error requiring reversal. **Proposition II: Prosecutorial Misconduct** The arguments presented in closing did not amount to prosecutorial misconduct. Attorneys have latitude in arguing evidence and its inferences unless such arguments negatively affect trial fairness (Barnes v. State, 2017 OK CR 26). Appellant did not object to the statements raised on appeal, so we review for plain error (Mathis v. State, 2012 OK CR 1). One contested statement asserted the victim's trustworthiness, which was in response to defense claims of inconsistency. While prosecutors should refrain from personal endorsements of credibility, the context mitigated the impact of this statement. In analyzing the comments regarding the victim's emotional struggles, the remarks were reasonable inferences drawn from evidence presented in trial. The overall context did not compromise the trial's fairness. **Decision:** The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ordered issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY** **THE HONORABLE NORMAN D. THYGESEN** --- **Attorneys on Appeal:** **Counsel for Defendant:** Dan Medlock **Counsel for Appellant:** Jeremy Stillwell **Counsel for the State:** Morgan Muzljakovich, Mike Hunter (Assistant District Attorney), Julie Pittman (Assistant Attorney General) --- **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR

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F-2018-749

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **RALPH WILLIAM SISCO, JR.,** ) Appellant, ) vs. ) **THE STATE OF OKLAHOMA,** ) Appellee. ) **Case No. F-2018-749** ) **FILED** ) **IN COURT OF CRIMINAL APPEALS** STATE OF OKLAHOMA ) **SEP 19 2019** ) **SUMMARY OPINION** JOHN D. HADDEN CLERK ROWLAND, JUDGE: Appellant Ralph William Sisco, Jr. appeals his Judgment and Sentence from the District Court of Nowata County, Case No. CF-2017-123, for Lewd Molestation (Counts 1 and 2), in violation of 21 O.S.Supp.2015, § 1123. The Honorable Curtis L. DeLapp, District Judge, presided over Sisco's jury trial and sentenced him, in accordance with the jury's verdict, to twenty-five years imprisonment on each count, ordered to be served consecutively. The trial court also imposed three years of post-imprisonment supervision. Sisco raises several issues on appeal: 1. **Sufficiency of Evidence**: He questions whether the evidence presented was sufficient to convict him beyond a reasonable doubt for Lewd Molestation in Count 2. The court holds that the State proved each element of the crime beyond a reasonable doubt. 2. **Preliminary Hearing**: Sisco challenges his binding over at the preliminary hearing due to the introduction of hearsay evidence. The court finds he waived his right to challenge this by failing to object during the hearing. 3. **Admission of Other Crimes Evidence**: He contends that the trial court erred by allowing evidence of other crimes and bad acts. The court concludes that the evidence was part of the res gestae of the charged offenses and was properly admissible. 4. **Jury Instructions**: Sisco claims the court erred in not instructing the jury on lesser offenses, including child abuse. The court finds no error; the lack of evidence to support such an instruction means it was not warranted. 5. **Effective Assistance of Counsel**: He argues that he received ineffective assistance of counsel for various reasons, including failure to object to hearsay and other crimes evidence. The court holds that there were no deficiencies in counsel’s performance affecting the trial's outcome. 6. **Consecutive Sentences**: He contends the trial court abused its discretion in ordering his sentences to be served consecutively. The court finds no abuse of discretion in this decision. 7. **Cumulative Errors**: Sisco asserts cumulative errors warrant a new trial. The court finds no individual errors that, taken together, deprived him of a fair trial. **DECISION**: The Judgment and Sentence of the district court is **AFFIRMED**. **OPINION BY**: ROWLAND, J. **LEWIS, P.J.**: Concur **KUEHN, V.P.J.**: Specially Concur **LUMPKIN, J.**: Concur in Results **HUDSON, J.**: Concur **KUEHN, V.P.J., SPECIALLY CONCUR**: I agree that the convictions should be affirmed but note that as to Count II, the evidence does not support an instruction on a lesser offense due to the nature of the charge and the evidence presented. --- **[Full Text Document PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-749_1735218036.pdf)**

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F-2018-622

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The opinion you provided appears to be a detailed court ruling from the Oklahoma Court of Criminal Appeals regarding the case of Jasmine Michelle Irvin, who was convicted of First Degree Murder. Below is a summary of the key points from the opinion: ### Case Summary - **Appellant**: Jasmine Michelle Irvin - **Appellee**: State of Oklahoma - **Case Number**: F-2018-622 - **Court**: Oklahoma Court of Criminal Appeals - **Judge**: Cynthia Ferrell Ashwood - **Verdict**: Convicted of First Degree Murder - **Sentence**: Life in prison without the possibility of parole ### Facts of the Case - The victim, Robert Godwin, was found shot to death in a secluded area. - Evidence indicated that Appellant had expressed a desire to have the victim killed and had made attempts to recruit others to help. - Appellant contacted the victim, leading him to the location where he was killed. - The victim suffered multiple gunshot wounds to the back, and information from cell phone data supported the timeline of events leading to the murder. ### Legal Propositions 1. **Waiver of Jury Trial**: Appellant challenged whether she knowingly and intelligently waived her right to a jury trial. The court found that the waiver was clear and the trial court had adequately assessed her understanding of the waiver. 2. **Victim Impact Testimony**: Appellant contended that her due process rights were violated due to the admission of victim impact testimony from a non-family member. The court acknowledged the error but did not find it sufficient to warrant relief since the trial judge was presumed to consider only competent evidence in sentencing. 3. **Ineffective Assistance of Counsel**: Appellant alleged her counsel was ineffective for not ensuring her waiver of the jury trial was valid and for failing to object to the victim impact testimony. The court found no deficiency in counsel's performance. 4. **Accumulation of Errors**: The court addressed Appellant's claim that the cumulative errors denied her a fair trial. It was determined that since no reversible errors were found, the cumulative error claim lacked merit. ### Conclusion - The court affirmed the judgment and sentence of the district court, concluding there were no reversible errors present. - An additional concurrence discussed the standard of review for the waiver of jury trial but ultimately supported the affirmation of the conviction. For more details or to read the full opinion, you may refer to the link provided in your original text.

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F-2018-552

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In the Court of Criminal Appeals of the State of Oklahoma, Tommy Lynn Berry appealed the termination of his participation in Drug Court after admitting to violations. The court reviewed Berry's claims and ultimately affirmed the termination. 1. **Involuntary Stipulation**: Berry argued that his stipulation to the allegations was involuntary and that the trial court erred by accepting it without meeting the standard for a guilty plea. However, the court found that no legal precedent required the same standards for stipulations in Drug Court as for guilty pleas. The court established that Berry was aware of the consequences of his stipulation, which was made in exchange for the dismissal of additional charges. 2. **Abuse of Discretion in Termination**: Berry contended that the trial court should have imposed progressively increasing sanctions before terminating him. The court clarified that while graduated sanctions are generally preferred, the statute also allows for immediate termination if warranted. Since Berry had committed new offenses while participating in the program, the court found no abuse of discretion in his termination. 3. **Ineffective Assistance of Counsel**: Berry claimed he did not receive effective representation. The appellate court utilized the Strickland standard to evaluate this claim, requiring proof of both deficient performance and resulting prejudice. The court noted that Berry's counsel had negotiated a favorable outcome—dismissing the new drug charges—thereby showing that the counsel's actions were reasonable and resulted in no detriment to Berry. Ultimately, the court concluded that Berry's termination from Drug Court was justified and affirmed the lower court's decision.

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F-2018-446

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In OCCA case No. F-2018-446, Byron Craig Herd appealed his conviction for First Degree Burglary. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Byron Craig Herd was found guilty by a jury for breaking into someone's home. The court sentenced him to life in prison because he had a history of other convictions. During the trial, Herd's defense claimed that the prosecutor acted unfairly, which made it hard for him to get a fair trial. Herd argued two main points in his appeal. First, he said the prosecutor made the trial unfair by trying to make the jury feel sorry for the victims. The prosecutor did this by asking the jury about their feelings as potential victims of a burglary, which led to emotional comments during the trial. Secondly, Herd believed his life sentence was too harsh. The court looked carefully at the trial and the evidence. They noted that while some of the prosecutor's comments may have been too emotional, the evidence against Herd was very strong. There were recordings of him inside the victims' house, and he was caught shortly after the crime. The court concluded that, despite some mistakes made by the prosecutor, these did not significantly affect the fairness of the trial because the evidence of guilt was overwhelming. They also determined that Herd's sentence was appropriate given his past crimes and the seriousness of his current crime. In the end, the court denied Herd’s appeal, meaning he would stay in prison for life.

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F-2018-401

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In OCCA case No. F-2018-401, Collins appealed his conviction for Felon in Possession of a Firearm. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Martino L. Collins was found guilty of having a gun even though he had previous felony convictions. He was sentenced to fourteen years in prison. Collins claimed that the trial was unfair because there was too much evidence about a shooting that he was not charged with, that certain expert testimony was wrong, and that he deserved credit for time spent in jail before the trial. The court looked at the evidence and decided that the shooting information was important for understanding why Collins was found with a gun. The jurors needed all the facts to make a fair decision. They found that there wasn't a mistake made by the trial court and that no one was unfairly harmed by this information. Collins also argued against certain things that witnesses said in court, but he didn't object to most of it during the trial, which meant he couldn’t complain about it later. Even when the court looked into the testimony by a ballistic expert, they found that it was okay for the expert to talk about his own findings. Lastly, the court said the law didn’t allow him credit for time he spent in jail before the trial began. Overall, after looking closely at everything, the court found no issues that would change Collins's conviction or sentence, so they kept the original decision.

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F-2018-241

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In OCCA case No. F-2018-241, Mario Darrington appealed his conviction for Trafficking in Illegal Drugs (Marijuana and Methamphetamine) and related drug charges. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court. One judge dissented. Darrington was arrested after police executed a search warrant at a home in Tulsa. Officers found a large quantity of marijuana and methamphetamine in the house. Darrington was linked to this evidence through various items found at the scene, including drugs located in a suit pocket with his name on prescription bottles and documents. He was charged with trafficking and other felonies due to having a prior criminal record. During his trial, Darrington requested that evidence obtained from the search be suppressed, arguing that the search warrant was not valid. He believed that the warrant did not show enough information to justify the search. The court reviewed his claim and determined that the affidavit supporting the search warrant provided sufficient evidence for a judge to find probable cause. The police officer had personal observations and corroborated information that indicated illegal drug activity was happening at the residence. The court also found that the timing of the information was relevant and not too old to be dismissed. Additionally, Darrington sought to know the name of an unnamed informant who provided information to the police for the search. The court ruled that this informant was not a material witness, meaning their identity did not significantly affect Darrington's case. As a result, the court affirmed Darrington's conviction and upheld the district court's decisions regarding the suppression of the search evidence and the request for the informant's identity.

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F-2018-313

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In OCCA case No. F-2018-313, Juan Jose Nava-Guerra appealed his conviction for Aggravated Trafficking in Illegal Drugs and Conspiracy to Commit Aggravated Trafficking in Illegal Drugs. In an unpublished decision, the court decided to affirm the judgment and sentence but modified it to lower the fees assessed. One judge dissented. Nava-Guerra was found guilty by a jury and sentenced to a total of 105 years in prison for each count, which would run at the same time. He argued that his rights were violated during the trial due to several reasons. First, he claimed the trial court allowed hearsay statements that should not have been presented as evidence. However, the court found that since Nava-Guerra himself had introduced similar evidence in his defense, he could not claim there was an error in allowing the State's evidence. Second, he argued that the search of the vehicle he was in was unlawful, claiming that the officer did not have a valid reason to stop the car. The court reviewed the details of the stop and found that there was a valid reason based on the car following too closely behind another vehicle, which justified the officer's actions. Third, he contested the admission of a specific exhibit, which was a transcription of audio from the car. The court decided that, like the first issue, since he used nearly the same exhibit in his defense, he could not argue it was wrong for the State to use it. Finally, Nava-Guerra challenged the fee for his defense attorney, saying it was too high. The court agreed that the fee assessed was higher than allowed by law and modified it to the correct amount. In summary, the court found no significant errors in the trial except for the fees, which needed to be reduced. The final decision was to uphold the conviction but change the fees owed.

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F-2018-309

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In OCCA case No. F-2018-309, Adrian Escajeda appealed his conviction for Murder in the First Degree. In an unpublished decision, the court decided to affirm his conviction and sentence. One judge dissented. Adrian Escajeda was found guilty of first-degree murder by a jury and sentenced to life in prison. He was also convicted earlier of two drug possession charges, but those were not part of his appeal. During his trial, Escajeda claimed there were several errors that negatively impacted his case. First, he argued that it was wrong to have both his murder case and a separate child neglect case tried together in front of the same jury. He believed this made it hard for the jury to be fair. However, the court found that he didn't show how this joined trial actually harmed him because the jury had acquitted him of the child neglect charge. Additionally, the evidence against him for murder was very strong and unrelated to the child neglect, making the combined trial harmless. Escajeda also said his lawyer did not do a good job by not objecting to the charges being joined for trial. However, the court decided that his lawyer's performance wasn’t ineffective because there wasn’t any real prejudice; the outcome was not affected. The next point Escajeda raised was about some statements made during the trial. He believed hearsay was wrongly admitted, which violated his right to confront witnesses. The court looked into this and concluded that the statements in question were not hearsay, as they were used to explain the detective's investigation and did not assert the truth of those statements. Finally, Escajeda claimed that the prosecutor made unfair comments during the trial that made it hard for the jury to be impartial. The court examined these comments and found they were reasonable and based on the evidence presented. Since the comments did not create an unfair trial, the court dismissed this argument as well. In conclusion, the court reviewed all of Escajeda’s claims and found none of them warranted a change to his conviction or sentence. As a result, his conviction for first-degree murder remained in place, and he will serve the majority of his sentence in prison.

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F-2018-194

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In OCCA case No. F-2018-194, the appellant appealed his conviction for sexual abuse of a child under twelve and child sexual abuse. In an unpublished decision, the court decided to affirm the convictions. One judge dissented. The appellant, William Harold Pittman, was convicted by a jury for serious crimes against children. The jury gave him a punishment of thirty years in prison for each crime, and both sentences were meant to be served one after the other. The judge who oversaw the trial also ordered the appellant to pay various costs and fees. Pittman appealed his conviction, claiming that the trial court made a mistake by allowing expert testimony about something called the Child Sexual Abuse Accommodation Syndrome (CSAAS). He argued that this evidence was not relevant and should not have been allowed, saying it was not proven to be reliable. The court explained that the decision to allow expert evidence is usually up to the trial judge. If a specific objection is made during the trial, then the appeal cannot rely on a different argument later. Pittman did not object during the trial to the CSAAS evidence based on its relevance or reliability, which made his chance for appeal more difficult. To win an appeal based on a plain error, the appellant needs to show three things: that there was a real error, that it was obvious, and that the error affected the case's outcome. The court found that Pittman could not prove any such errors in this case. The court stated that previously, CSAAS had been accepted as reliable evidence in prior cases. This evidence can help explain why some children might take a long time to talk about the abuse or might change their statements after initially making claims. In this case, the court confirmed that the CSAAS evidence was relevant to the victim's delay in talking about the abuse. Pittman also claimed that there wasn't enough data to prove CSAAS was reliable and asked the court to reconsider accepting it as reliable evidence. However, the court refused to change its stance, stating that it would not revisit this issue. Lastly, Pittman argued that the CSAAS testimony was too supportive of the victim's story and could not be considered harmless. The court pointed out that this evidence was permissible because it only served to support what the victim and other witnesses testified about. The court ultimately found no errors in the trial regarding the way CSAAS evidence was handled, and therefore affirmed the judgments and sentences against Pittman.

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F-2017-1176

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In OCCA case No. F-2017-1176, Anthony Dean Wilkerson, Jr., appealed his conviction for seven counts of Child Sexual Abuse. In an unpublished decision, the court decided to affirm the judgment and sentence given to him. One judge dissented. Wilkerson was convicted by a jury for serious crimes against a child. The jury decided on the punishments for each count, giving him long sentences, including life imprisonment for some of the counts. The trial court judge sentenced him to serve these sentences one after the other, meaning he would spend a long time in prison. Wilkerson raised several issues in his appeal, saying that his trial was not fair. He argued that he was punished too harshly for the same crime (double punishment), that the trial court made mistakes during the trial, and that the total effect of these mistakes made it unfair for him. The court looked at all the evidence and decided that Wilkerson's arguments were not strong enough to change the original decision. For his first point about double punishment, the court noted that the crimes were separate acts, so it was okay for him to be convicted on all counts without violating laws against multiple punishments. For his second and third points, the court said the trial judge was allowed to let the state ask questions that helped the young victim, J.W., remember her experiences better and to clarify her testimony about what happened to her. Regarding the length of his sentences and how they were administered (running consecutively), the court found no reason to change what the jury and trial judge decided. The punishments fell within legal limits, and the court didn't find that they were too harsh when considering the seriousness of the crimes. Wilkerson also claimed there was an error about a fine that was not mentioned at his sentencing. The court agreed that it was a simple mistake and ordered the lower court to correct this. Finally, the court did not find any combined errors that affected the fairness of the trial, so they rejected his last claim about cumulative error. In conclusion, the court upheld the original decision and confirmed Wilkerson's convictions, but instructed the lower court to fix the written sentencing document to remove the fine.

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F-2018-793

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **MARTIN OCHOA MEDINA,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-793** **FILED AUG 29 2019** JOHN D. HADDEN, CLERK --- **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Martin Ochoa Medina appeals his Judgment and Sentence from the District Court of Beckham County, Case No. CF-2017-275, for Assault and Battery with a Deadly Weapon, After Former Conviction of a Felony in violation of 21 O.S.2011, § 652. The Honorable Doug Haught, District Judge, presided over Medina's jury trial and sentenced him, in accordance with the jury's verdict, to life imprisonment. Medina raises a single issue on appeal: whether he was denied a fair sentencing proceeding because of prosecutorial misconduct throughout the second stage of his bifurcated trial. **1. Prosecutorial Misconduct Claim** Medina contends he was denied a fair sentencing proceeding due to prosecutorial misconduct during the second stage of his trial. He specifically argues that the prosecutor improperly introduced details of his prior conviction, appealed to sympathy for the victim, and wrongly commented on the potential for him to commit future crimes. However, Medina failed to object to these comments during the trial, waiving review of this claim for all but plain error. **Reviewing for plain error**, the Court finds that Medina has not shown that any alleged prosecutorial misconduct affected the outcome of the trial. Arguments made during closing are considered within the context of the entire trial. While the prosecutor did make improper comments regarding future crimes, reviewing the totality of the circumstances, such comments did not significantly impact the fairness of the sentencing proceeding. **DECISION** The Judgment and Sentence of the district court is **AFFIRMED**. --- **OPINION BY: ROWLAND, J.** **CONCURRING IN PART/DISSENTING IN PART:** **HUDSON, J.:** I write separately to dissent regarding the finding of plain error related to the prosecutor's comments about the potential for future offenses. The majority's reference to prior case law does not fully support their conclusion, as the prosecutor's comments were grounded in the evidence presented during trial and were relevant to the discussion of Medina's history and behavior. The prosecutor's arguments were appropriate and based on the evidence regarding Medina's prior violent acts, which warranted discussion in the context of sentencing. There was no misuse of the argument to stir societal alarm but rather a legitimate consideration of the defendant's recidivism. Recidivism has always been a recognized basis for enhanced sentencing, and the defendant's past conviction of a violent crime aligns with the evidence presented during this trial. Therefore, I believe the prosecutor's comments were within the permissible bounds and the majority has incorrectly labeled this as error. I concur with the denial of relief for the remaining arguments but dissent regarding the assessment of error concerning the comments about future conduct. --- For further details, you can [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-793_1735216324.pdf).

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F-2018-502

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In OCCA case No. F-2018-502, Randall Patrick Molloy appealed his conviction for Child Abuse by Injury. In an unpublished decision, the court decided to affirm Molloy's conviction. One justice dissented. Molloy was found guilty by a jury in Tulsa County for hurting a child, which is a serious crime. The jury decided he should go to prison for sixteen years and pay a fine of $5,000. However, the judge agreed to lessen his sentence by taking away three years, meaning he would only have to serve thirteen years in prison. Molloy raised two main problems with his trial. First, he argued that he didn't get a fair trial because the state didn't share an agreement with a co-defendant that might have helped his case. Second, he felt that instructions given to the jury were confusing and didn't help them understand the facts related to the co-defendant's earlier statements. The court reviewed all the evidence and listened to the arguments from both sides. They pointed out that for Molloy to get a new trial based on not receiving a fair trial, he had to show that there was a clear mistake that changed how the trial turned out. Ultimately, they found that there were no clear mistakes or errors in the trial. The court noted that the information about the co-defendant was known to Molloy's lawyer during the trial, and therefore, it did not affect the outcome negatively. Regarding the jury instructions, the court also concluded that those instructions did not clearly cause any problems that could change the trial's result. The jury had enough information to make a fair decision about Molloy's guilt based on the evidence presented. In summary, because the court found that there were no serious mistakes during the trial, they decided to uphold the original decision made against Molloy.

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F-2018-322

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In OCCA case No. F-2018-322, Juan Carlos Renovato-Juaregui appealed his conviction for assault and battery with intent to kill and domestic assault and battery resulting in great bodily harm. In an unpublished decision, the court decided to affirm the judgment and sentence. Judge Drummond merged the two counts into one, sentencing him to fifteen years in prison with credit for time served. The court found that the claims of ineffective assistance of counsel and prosecutorial misconduct did not require reversal of the conviction. No judges dissented.

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