Sentence

F-2021-123

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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 In an unpublished decision, the court decided to affirm the conviction.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.

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C-2020-691

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In OCCA case No. C-2020-691, Raheem Travon Walker appealed his conviction for Assault and Battery on an Employee of a Juvenile Detention Facility. In an unpublished decision, the court decided to grant Walker's request to withdraw his guilty plea and go to trial. One judge dissented. To explain further, Walker was 17 years old when he pleaded guilty to the crime. He entered into a deal, thinking he would be part of a special program for young adults where his sentence would be delayed. However, later it was discovered that he was not eligible for this program due to a past juvenile record for robbery. Because of this ineligibility, the judge gave him a different sentence, which he believed was not what he had agreed to. After realizing that he did not get what he had bargained for, Walker asked if he could change his mind about the plea. A hearing took place, but his request was denied. He then appealed the decision, arguing that he was not helped properly by his lawyer during the process. The court found that he had a valid point since he entered the agreement expecting specific benefits, which were not provided. Because of this, the court decided he should have another chance and allowed him to withdraw his guilty plea. The dissenting opinion argued that Walker had not raised the issue of not having a proper plea form and thus had waived that right. They believed there was no mistake about the plea agreement and questioned whether Walker's claim had enough basis to warrant this new decision. Regardless, the majority found that Walker’s concerns about his plea and the sentence should be addressed by allowing him to go to trial.

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F-2020-291

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In OCCA case No. F-2020-291, Christopher Alan Vaughn appealed his conviction for Trafficking in Illegal Drugs. In a published decision, the court decided to reverse his sentence and remanded the case for resentencing. No one dissented. Vaughn was found guilty by a jury after being accused of trafficking drugs. During the trial, there was a mistake with how the jury understood the punishment for his crime. The jury first marked that he had multiple prior convictions incorrectly, which was fixed when the judge voided it and asked the jury to fill out a proper verdict form. Eventually, the jury marked his prior felony convictions correctly but failed to suggest a sentence. The judge then decided to give him a life sentence without the possibility of parole. Vaughn argued that the judge gave the jury wrong instructions about what the punishment should be. He claimed that the law at the time of his crime said that punishment could range from 20 years to life or life without parole, not just life without parole. The State agreed that there was a mistake in how Vaughn was sentenced. The court reviewed the arguments and found that the jury should have been given proper instructions about the range of punishment. The law in effect when Vaughn committed his crime said that if someone had two or more previous felony convictions, the person could receive a sentence of at least 20 years to life or life without parole, but his prior convictions were not for trafficking, so the incorrect instructions could lead to an unfair sentence. Because of this issue, the court decided to reverse Vaughn’s sentence and sent the case back to the lower court for him to be resentenced properly under the correct guidelines.

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F-2017-336

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In OCCA case No. F-2017-336, Bea Ann Epperson appealed her conviction for two counts of Embezzlement of Building Trust. In an unpublished decision, the court decided to reverse her convictions and remand the case with instructions to dismiss. One judge dissented. Bea Ann Epperson was found guilty in a trial without a jury for embezzling money related to a building trust. She was sentenced to five years in prison for each count, but her sentences were suspended, meaning she wouldn’t serve time unless she violated certain conditions. Epperson believed that the court did not have the right to try her case because she is a member of the Cherokee Nation, and the victims might be part of the Creek Nation, with the crimes happening on Creek Reservation land. This argument was connected to a U.S. Supreme Court decision called McGirt v. Oklahoma, which deals with whether certain areas are considered Indian Country. The questions involved were Epperson's Indian status, the status of the victims, and the location of the crimes. Because these questions needed more fact-finding, the case was sent back to the District Court. At a hearing to gather more details, it was determined that Epperson had some Indian blood (3/64th degree) and was recognized as a member of the Cherokee Nation. It was also confirmed that the crimes took place within the boundaries of the Creek Reservation. The court accepted these agreements made by both sides regarding what the evidence would show. In a later brief, the State supported the District Court’s findings, but wanted time to consider whether to file new charges against Epperson. After reviewing everything, the court agreed Epperson had shown she was an Indian and that the crimes happened in Indian Country, thus the State of Oklahoma did not have the right to try her. The court reversed the judgment of Epperson's convictions and sent the case back to be dismissed, meaning she wouldn't face charges for the embezzlement anymore.

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F-2019-420

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In OCCA case No. F-2019-420, Donta Keith Davis appealed his conviction for robbery with a dangerous weapon and assault with a dangerous weapon. In a published decision, the court decided to vacate Davis's judgment and sentence, meaning he would no longer be convicted of the crimes he was charged with. The court also instructed for the case to be dismissed. One judge dissented from the majority opinion.

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M-2019-664

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In OCCA case No. M-2019-664, the appellant appealed his conviction for illegal entry with unlawful intent, outraging public decency, and assault on a police officer. In an unpublished decision, the court decided to reverse the conviction for illegal entry but affirmed the convictions for outraging public decency and assault on a police officer. One judge dissented. James Brewer was accused of several misdemeanors after the police were called to his neighbor's house because he was trying to break in. The neighbor's children had reported the incident to their mother, who called the police. When officers arrived, they found Brewer in a neighboring home, naked on the floor, being restrained by his brother. He was not cooperative when the police tried to arrest him. During the trial, the court heard from police officers but did not hear directly from the neighbor or her children. The prosecution's case relied on the officers' testimonies about what they found and how they arrested Brewer. He represented himself during the trial with the help of standby counsel. Brewer raised several issues on appeal. First, he argued that he should have received credit for the time he spent in jail before the trial. The court explained that it is up to the trial judge to decide whether to give this credit and stated that there was insufficient information showing that he was unable to pay for a bond that would have let him out of jail before the trial. He also claimed the prosecutor made mistakes during the trial, like bringing up parts of his attitude that were not relevant and making comments during closing arguments. The court decided that the prosecutor's actions did not unfairly affect the trial. Brewer argued that there was not enough evidence for his conviction for illegal entry. The court agreed that the evidence was weak because the neighbor and her children did not testify and there was no direct proof linking him to tampering with the air conditioners. His other claims related to cross-examination and the wording of the charges against him were found to be insufficient to overturn the convictions for the other two charges. His conviction for the illegal entry was reversed, meaning the prosecution could not pursue it further, but the convictions for outraging public decency and assault on a police officer were upheld. One judge had a different opinion and dissented from the majority ruling.

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F-2018-1267

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**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)

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F-2018-1144

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In the case of William G. Epperly v. The State of Oklahoma (Case No. F-2018-1144), the Oklahoma Court of Criminal Appeals upheld the judgment and sentence imposed by the District Court of Oklahoma County. The court found that the evidence presented during Epperly's trial was admissible, and his claims of error, including issues related to hearsay, relevance, and jury instructions, did not warrant reversal of his conviction for Sexual Abuse of a Child. ### Key Points from the Court's Decision: 1. **Admission of Excited Utterance Evidence**: The court found that statements made by Tiffany Epperly (Epperly's spouse) to two witnesses fell under the excited utterance exception to hearsay, as she was under emotional stress when she reported witnessing the alleged abuse. 2. **Text Messages and Witness Testimony**: The court ruled that reading text messages sent by Sutphen to Tiffany Epperly was not hearsay because they were used to challenge Tiffany's credibility rather than to prove the truth of the matter asserted. Additionally, the testimony about Tiffany's changing demeanor was deemed relevant to the case. 3. **Witness Reading from Police Report**: Former Officer Richardson's reading from his police report, which included Tiffany Epperly's statements, was allowed because it served to impeach her trial testimony, not as hearsay. 4. **Internet Search Evidence**: The court deemed the evidence concerning Epperly's internet search about Oklahoma sex laws to be relevant, as it could suggest a consciousness of guilt. 5. **Judgment and Sentence Corrections**: The court noted that the issues regarding credit for time served and the $100 fine were resolved with an amended judgment, making that claim moot. 6. **Jury Instruction on Sex Offender Registration**: The court did not find that the failure to instruct the jury about sex offender registration constituted an error warranting relief, consistent with prior rulings. 7. **Cumulative Error Doctrine**: The court concluded that no individual errors occurred that would justify reversal and therefore found no merit in the cumulative error claim. ### Conclusion: The court affirmed the judgment and sentence of the district court, concluding that all claims raised by Epperly were without merit. The decision illustrates the court's adherence to evidentiary rules and its support for the discretion exercised by the trial judge in admitting evidence. For more detailed information, the full opinion can be accessed [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1144_1734787047.pdf).

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F-2019-16

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY W. WARD,** Appellant, v. **STATE OF OKLAHOMA,** Appellee. **Case No. F-2019-16** **FILED DEC 12 2019** **IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** LUMPKIN, JUDGE: Appellant Johnny W. Ward was tried by jury and found guilty of Assault and Battery with a Deadly Weapon (Count I) (21 O.S.2011, § 652) and Possession of a Firearm (Count II) (21 O.S.Supp.2014, § 1283), both counts After Former Conviction of A Felony, in the District Court of Muskogee County, Case No. CF-2017-1155. The jury recommended as punishment imprisonment for thirty (30) years in Count I and ten (10) years in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence that Appellant appeals. Appellant must serve 85% of his sentence in Count I before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. **Appellant raises the following propositions of error in support of his appeal:** 1. The eyewitness identification of Appellant was based upon an overly suggestive, one-man show-up that violated Appellant's rights to due process and a fair trial. 2. The State's evidence presented at trial was insufficient to establish beyond a reasonable doubt that Appellant committed the crimes of Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony Conviction and his convictions must therefore be reversed with instructions to dismiss. 3. Appellant's sentence is excessive and should be modified. After thorough consideration of these propositions and the entire record, we have determined that under the law and the evidence no relief is warranted. **Proposition I:** Appellant contends the trial court abused its discretion in denying his motion to suppress the in-court identification made by Ms. Davidson after an on-the-scene one person show-up. Appellant argues the pre-trial identification was unnecessarily suggestive and tainted the subsequent identification of Appellant at trial. A one man show-up is not necessarily unduly suggestive or improper. Young v. State, 2000 OK CR 17, ¶ 30, 12 P.3d 20, 34. Absent special elements of unfairness, prompt on-the-scene confrontations [between a victim and a suspect] do not entail due process violations.... Harrolle v. State, 1988 OK CR 223, ¶ 7, 763 P.2d 126, 128, quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969). The one person show-up in this case was not unduly suggestive or so improper as to create a substantial likelihood of irreparable misidentification. The trial court did not abuse its discretion in denying the motion to suppress the identification. However, even if the show-up was unduly suggestive, the same would not automatically invalidate the subsequent in-court identification if that identification can be established as independently reliable under the totality of the circumstances. Young, 2000 OK CR 17, ¶ 31, 12 P.3d at 34. Under the circumstances of this case, we find the in-court identification reliable. As the trial court did not abuse its discretion by allowing into evidence the in-court identification of Appellant, this proposition of error is denied. **Proposition II:** Appellant challenges the sufficiency of the evidence supporting his convictions for Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony. He argues the State failed to show he had anything to do with the alleged crimes. Appellant asserts that the State's evidence showed only that he was in the wrong place at the wrong time. However, evidence showed that Appellant shot his victim in the knee and buttock as the victim begged for his life. Appellant then ran away from the scene, discarding the gun he used and a hoodie he was wearing. Reviewing Appellant's challenge to the sufficiency of the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. Appellant's challenge to the sufficiency of the evidence is denied. **Proposition III:** Appellant argues that his sentence is excessive and should be modified. He asserts that while his sentence is technically within the range provided by law, it does not bear a direct relationship to the nature and circumstances of the offenses. However, Appellant's sentences were within the applicable statutory range (21 O.S.2011, §§ 652(A), 1284 and 51.1(C)). This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. The evidence showed that despite having a prior robbery conviction, Appellant was in possession of a gun, which he used to shoot the victim multiple times as the victim begged for his life. Under these circumstances, the 30 year and 10 year sentences are not excessive. Therefore, modification of the sentences is not warranted and this proposition is denied. Accordingly, this appeal is denied. **DECISION** The JUDGMENT and SENTENCE 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 THOMAS H. ALFORD, DISTRICT JUDGE** **APPEARANCES AT TRIAL** BRIAN WATTS 222 N. 4TH ST. MUSKOGEE, OK 74401 COUNSEL FOR THE DEFENSE **APPEARANCES ON APPEAL** NICOLLETTE BRANDT OKLA. INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **ORVIL LOGE** DISTRICT ATTORNEY TIM KING ASST. DISTRICT ATTORNEY MUSKOGEE CO. COURTHOUSE MUSKOGEE, OK 74401 COUNSEL FOR THE STATE **MIKE HUNTER** ATTORNEY GENERAL OF OKLAHOMA CAROLINE E.J. HUNT ASST. ATTORNEY GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE **OPINION BY: LUMPKIN, J.** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-16_1734781599.pdf)

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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-2018-477

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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-2017-1019

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In OCCA case No. F-2017-1019, Johnson appealed his conviction for Child Sexual Abuse. In an unpublished decision, the court decided to affirm Johnson's conviction and sentence. One judge dissented. Johnson was found guilty of abusing a child and was sentenced to twenty-five years in prison. He also had to pay a fine and would be supervised after serving his time. Johnson argued that the evidence against him wasn't enough, that the jury didn't get proper instructions, that his lawyer didn't help him much, and that he didn’t know he would be on a list of sex offenders if convicted. The court looked closely at all these claims and found no significant problems. First, the court said there was enough evidence for the jury to decide Johnson was guilty beyond a reasonable doubt. Johnson claimed the actions happened because of a dream, but the jury believed otherwise. The court said that it would not change the jury's decision as they followed the law. Second, the court noted that the jury had received instructions about what would happen after Johnson was imprisoned. So, this point did not hold. Third, Johnson's claim about his lawyer not performing well was also denied. For this claim to work, Johnson would need to show that his lawyer made a serious mistake that hurt his defense. However, Johnson only gave statements about his own state of mind without clear evidence to support his claim. The court found that his lawyer did not make mistakes that harmed Johnson's case. Next, the court looked at the claim about sex offender registration. Johnson said the jury should have been told more about this, but he never asked for this instruction during the trial. The court decided there was no clear error because they had already ruled on this issue in past cases. Finally, the court dismissed Johnson's claim about the combined effects of the errors. Since they found no significant errors, they concluded that his right to a fair trial had not been violated. In the end, the court upheld Johnson's conviction and sentencing, affirming the judgment made by the lower court.

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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-2017-802

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In OCCA case No. F-2017-802, Jestin Tafolla appealed his conviction for Assault and Battery with a Dangerous Weapon and Carrying a Weapon Unlawfully. In a published decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Tafolla was sentenced to life imprisonment for the assault and thirty days in jail for the misdemeanor charge, with the sentences served at the same time. His appeal raised several issues, mainly about whether his trial was fair. He claimed that evidence of his gang affiliation unfairly influenced the jury, that introducing certain statements violated his rights, and that errors occurred during the trial process. The court discussed the details of the case where Tafolla assaulted a man following a traffic dispute. Detectives witnessed Tafolla hitting the victim and confiscated brass knuckles he discarded. Witness statements indicated that racial slurs were part of the altercation. The court found that the evidence of Tafolla's gang membership was relevant to understand the incident and the motivations behind it. It ruled that the testimony related to his affiliation did not violate his rights and was permissible to show motive and intent. They also addressed Tafolla's complaints about the admission of the victim's statements, concluding that these did not prevent a fair trial. The admission of prior convictions for cross-examination purposes was also deemed appropriate as it was relevant to the prosecution's case. In issues raised about the prosecutor's conduct and jury instructions, the court determined that no significant errors impacted the trial. The arguments made by the prosecution were within the acceptable realm of discussing the evidence. Overall, the court found no individual errors that would require a new trial and concluded that the accumulation of complaints did not undermine the fairness of the proceedings. Thus, the original judgment was upheld, and Tafolla’s appeal was denied.

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RE 2018-0457

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In OCCA case No. RE 2018-0457, Tommy Lee Tucker appealed his conviction for Domestic Assault and Battery After Prior Conviction, Domestic Assault and Battery by Strangulation, and Kidnapping. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but remanded the case to the District Court to correct inconsistencies in the sentencing documents. One judge dissented.

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F-2018-391

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In OCCA case No. F-2018-391, Zachary Troy King appealed his conviction for Child Abuse by Injury. In an unpublished decision, the court decided to affirm the conviction and sentence. One judge dissented. Zachary Troy King was found guilty by a jury in a case where he was accused of injuring a child. The jury decided that he had caused harm to the child, and he was sentenced to twenty years in prison, with the first fifteen years needing to be served. King argued four main points in his appeal. First, King said that the evidence presented in his trial was not strong enough to prove he committed child abuse. He claimed that the injuries to the child were not clearly caused by him, and he thought the jury should not have convicted him. However, the court believed that there was enough evidence for any reasonable person to conclude that King did injure the child. Second, King claimed that the judge made a mistake by not allowing a mistrial after the prosecution introduced certain evidence. He argued that this evidence was not important or added to the case in a meaningful way. Yet, the court felt that the testimony included by the prosecution was relevant to proving injuries were intentionally inflicted rather than accidental. Third, King accused the prosecutor of acting unfairly during the trial, which made it hard for him to get a fair trial. The court reviewed the prosecutors' actions and felt there were no significant errors that would have impacted the trial's fairness. Lastly, King argued that the collection of mistakes in his trial added up to take away his right to a fair hearing. But, since the court did not find any errors that would require a reversal of the conviction, the claim was also denied. In conclusion, the court upheld the jury's decision and the trial judge's actions, stating that King received a fair trial and that there was enough evidence to support the conviction. The judgment from the trial court was confirmed, and King will continue to serve his sentence.

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F-2018-531

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In OCCA case No. F-2018-531, Joseph Green Stoker appealed his conviction for Rape by Instrumentation (Count 1) and Lewd Molestation (Count 2). In a published decision, the court decided to affirm the Judgment and Sentence of the district court, meaning Stoker would serve ten years on each count, with the sentences served one after the other. One judge dissented. Stoker argued that he was not allowed to present a proper defense because his witnesses were not allowed to testify. The court found that the trial judge was correct in excluding the evidence because Stoker did not follow the proper legal steps to get those witnesses into the trial. Stoker also claimed that the prosecutor acted unfairly, which made it hard for him to have a fair trial. The court looked at previous cases and decided that what the prosecutor did was not harmful enough to change the outcome of Stoker's trial. Another point made by Stoker was that his lawyer did not do a good job defending him. However, the court said Stoker could not prove that this lack of help from his lawyer actually affected the outcome of the trial. Finally, Stoker complained that the trial court wrongly ordered him to pay some costs while he was still in prison. The court explained that there are laws that allow part of an inmate's earnings in prison to be used for paying court fees, so they found no error in the judge's decision. Overall, the court did not find any mistakes significant enough to affect Stoker's conviction or sentencing, so they upheld the original decision.

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F-2018-541

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In OCCA case No. F-2018-541, Daniel Jeremiah McKay appealed his conviction for Failure to Register as a Sex Offender. In an unpublished decision, the court decided to affirm his conviction and the seven-year prison sentence. One judge dissented. McKay was originally charged with two things: sexual abuse of a child under 12 and failing to register as a sex offender. He was found not guilty of the first charge but convicted of the second. The jury gave him a sentence of seven years in prison, which the judge approved. He argued that his sentence was too long, claiming it should have been the minimum of four years because the jury was influenced by information related to the charge he was acquitted of. The court explained that they would not change the sentence unless it was extremely unfair. The law allowed for a sentence from four years to life for failing to register. The court also discussed that evidence from his past, including previous convictions and how he had dealt with sentences before, could be looked at by the jury when deciding the punishment. The judges stated that since McKay's sentence was only three years more than the legal minimum and much less than the maximum, it did not seem unreasonable. McKay's arguments about the sentences and the evidence were not enough to convince the court to change its decision. Therefore, they kept the original conviction and sentence.

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F-2018-326

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In OCCA case No. F-2018-326, #1 appealed his conviction for #stalking. In a (published) decision, the court decided #the State proved that the protective order was valid during the time of the incidents. #2 dissented.

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F-2018-384

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In OCCA case No. F-2018-384, Jimmy Dean Coke, Jr. appealed his conviction for Knowingly Concealing Stolen Property and Obstructing an Officer. In an unpublished decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Jimmy Dean Coke, Jr. was convicted of two crimes. The first was knowing concealment of stolen property, and the second was obstructing an officer. The court sentenced him to twenty-five years for the first charge and one year for the second, and he also had to pay fines. Coke argued that the proof against him was not strong enough. He believed there was not enough evidence to convict him beyond a reasonable doubt for either charge. However, the court reviewed the evidence in a way that favored the state. This meant they looked for any reasonable way a jury could have found him guilty. They decided there was enough evidence to support both convictions. Coke also claimed the trial court didn’t tell the jury about the value of the stolen property, which he thought was a mistake. For a charge of concealing stolen property to be a felony, the property must be worth $1,000 or more. Although the judge did not instruct the jury about this value, they still found that the property was worth $1,500 based on testimony, so the court determined that the omission was harmless. Coke left the courthouse during the jury's deliberation. The jury reached a verdict, and he was not there. Coke argued that he had the right to be present during this critical time. The court decided that because Coke chose to leave, he waived his right to be there, and the judge acted correctly by continuing without him. Coke believed that the prosecutor’s arguments were unfair and made it hard for him to have a fair trial. They reviewed the claims of misconduct and found that some were not objected to during the trial; therefore, they could only check for obvious errors. The court found minimal misconduct and did not feel it affected his trial's fairness. He also felt that he was not treated fairly by the judge. However, the court believed the evidence did not show that the judge was biased against him. The decisions made during the trial were consistent with legal practices. Coke said the judge gave him fines even though the jury did not decide on fines. The court agreed that the judge could impose fines even if the jury did not because the law allows it. Coke claimed that his lawyer did not do a good job and that this hurt his chance for a fair trial. The court found that since there were no significant mistakes made, the claims for ineffective counsel did not hold. Coke lastly argued that even if no single mistake was significant enough to reverse the decision, the total of all mistakes could warrant a new trial. The court decided that since they did not find any errors, this claim was also denied. In conclusion, the court affirmed the original decision, meaning Coke would remain convicted and serve his sentences as decided by the original trial.

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F-2018-418

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In OCCA case No. F-2018-418, Ebrima Tamba appealed his conviction for trafficking in illegal drugs. In an unpublished decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Ebrima Tamba was sentenced to twenty years in prison for his involvement in trafficking illegal drugs, specifically marijuana. Tamba felt that this sentence was too harsh. He argued that it was unfair because it was longer than the minimum penalty for the crime and that he had less marijuana than what the law required for a more serious charge. He also mentioned that since his arrest, the laws in Oklahoma changed, allowing people with a medical marijuana license to use marijuana legally. However, the court explained that even if laws changed after Tamba's crime, the new laws did not apply to his case. They noted that he was given a sentence that followed the laws in place when he committed the crime, and his sentence was within the legal limits. Tamba also claimed that his lawyer did not help him properly during the trial. He believed his attorney should have challenged how police stopped him and questioned whether the evidence used against him was acceptable. However, the court found that Tamba did not prove that his lawyer's actions negatively affected the outcome of his trial. In conclusion, the court decided that Tamba's twenty-year sentence was appropriate and that his lawyer provided adequate help during his trial. Therefore, his appeal did not lead to any changes in his case.

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F-2017-1189

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In OCCA case No. F-2017-1189, Lawrence Raymond Silver, Jr. appealed his conviction for Solicitation for First Degree Murder. In a published decision, the court decided to affirm the judgment and sentence from the district court. One judge dissented. The case started when Silver was tried and found guilty of trying to get someone to commit murder. The jury decided he should go to prison for thirty-seven years. During the trial, Silver raised several issues on appeal. First, he argued that the prosecutor said some unfair things that hurt his chances for a fair trial. However, the court found that these comments were not serious enough to make the trial unfair, and there was no error. Silver also thought that he should not have received three years of supervision after leaving prison since the law said this only applied to specific crimes. The court agreed that there was an error, but the trial judge later fixed it, reducing the supervision time to nine months to a year. Because this was corrected, Silver did not need any more relief on this issue. Additionally, Silver claimed that his lawyer did not help him well enough during the trial. The court explained that to show his lawyer was ineffective, Silver needed to prove that if the lawyer had done better, the result of the trial would have been different. Since the court didn't find any of the previous claims valid, they decided that his lawyer's work couldn't be judged as ineffective. Finally, Silver said that even if no single issue mattered on its own, the overall mistakes during the trial combined to deny him a fair trial. The court ruled that without any valid individual mistakes, his claim for cumulative errors was groundless. In conclusion, the court upheld the original judgment and sentence against Silver, and his request for further testing of his lawyer's assistance was denied.

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C-2016-778

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In OCCA case No. C-2016-778, Donald Garra Patterson appealed his conviction for Abuse by Caretaker, Unlawful Removal of a Dead Body, and Obtaining a Controlled Substance by Forgery/Fraud. In an unpublished decision, the court decided to affirm his convictions on most counts but modified the sentence for Unlawful Removal of a Dead Body due to it being greater than allowed by law. One judge dissented. Patterson had entered a plea of guilty to various charges and was sentenced to multiple terms of imprisonment, including ten years for Abuse by Caretaker and seven years for each of the other charges. Afterward, he wanted to withdraw his plea, claiming he did not fully understand what he was pleading guilty to and felt his lawyer had not helped him properly. The main issues raised included whether his plea was made knowingly and if his lawyer had conflicts of interest or failed to give him correct information. The court found that Patterson didn't support his claims about not understanding the plea and concluded his sentence for the crime of Unlawful Removal had to be changed because it was wrongly set longer than the law allowed. The court also confirmed that the mistakes in advising Patterson were not enough to prove he was treated unfairly by his lawyer. Ultimately, the court decided to lower his sentence for Unlawful Removal of a Dead Body to the correct maximum of five years and instructed the lower court to fix some record-keeping errors regarding fees.

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