Sex Offender

RE-2020-398

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In OCCA case No. RE-2020-398, Kenneth Joe Norton appealed his conviction for Failure to Register as a Sex Offender and Larceny of Merchandise from a Retailer. In a published decision, the court decided to affirm the revocation of his suspended sentences but ordered the trial court to modify the term executed on one charge to one year. One judge dissented. Norton was charged with two crimes, Failure to Register as a Sex Offender and Larceny of Merchandise, and he pleaded no contest in both cases. He was sentenced to ten years in prison, but part of that sentence was suspended as long as he completed a program. Later, the State claimed he broke the terms of his suspended sentence by getting into more trouble, which led to a court hearing. Norton argued that the sentence that was given to him was too long. He believed that the old law allowed a shorter sentence. The court looked at his claims and noted that, since the law changed after he was convicted, he should only serve one year on the larceny charge. This part of his appeal was accepted. Norton also tried to argue that some of the evidence during his revocation hearing should not have been allowed because it was obtained without proper procedures. He claimed that he had not been warned about his rights when he made a statement that led to his arrest. The court explained that during a revocation hearing, the same protections as a criminal trial do not apply. Therefore, the evidence was allowed. Moreover, he claimed his lawyer did not do a good job because they did not raise certain points about his case. However, since one of his claims was accepted, the court decided that it did not matter if the lawyer made mistakes because his issue was already resolved. In conclusion, the court allowed some changes to the sentence but maintained that his revocation was valid. The court focused on the rules for reviewing revocation cases and kept Norton accountable for his actions that led to the revocation of his suspended sentences.

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RE-2018-426

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CALVIN TAYLOR HERRIEN,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-426** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **SEP 19 2019** **JOHN D. HADDEN** **CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Appellant, Calvin Taylor Herrien, appeals from the revocation of four years of his twenty-five year suspended sentences in Case No. CF-2011-4693 in the District Court of Oklahoma County, presided over by the Honorable Cindy H. Truong. **Background:** On November 2, 2012, Appellant entered a guilty plea to two counts of Lewd Acts With a Child Under Sixteen, resulting in a twenty-five year sentence for each count, both suspended under specific probation conditions. The State filed an Application to Revoke Suspended Sentence on November 1, 2017, alleging Appellant violated probation by failing to reside in a lawfully approved residence and not truthfully answering inquiries from the DOC and law enforcement. A hearing commenced on November 21, 2017, where evidence was presented, including testimony from police chief Allen Lane, who testified regarding Appellant's residence proximity to a park and his notification to Appellant to relocate. Further testimony came from probation officer Daniel Straka, who reported Appellant's admission about the residence, discrepancies about probation requirements, and additional violations not included in the revocation application. Appellant testified on his own behalf, offering explanations but ultimately, after considering arguments, Judge Truong found that Appellant had committed the two breaches alleged in the application. Following a continuance, on December 1, 2017, Judge Truong revoked four years of the suspended sentence. **Propositions of Error:** 1. **Inadequate Notice:** Appellant contends that the consideration of testimony regarding uncharged violations denied him adequate notice, which impeded his ability to prepare a defense. 2. **Right to Confront:** Appellant alleges deprivation of his right to confront witnesses and due process during the hearing. 3. **Excessive Sentence:** Appellant argues that the four-year revocation of his suspended sentence is excessive. **Analysis:** The evidence presented at the revocation proceedings clearly showed that Appellant violated the terms of his probation. Appellant does not contest the findings concerning the recognized violations. He does not argue that he was unaware of the specifics related to the alleged probation violations or that he lacked the opportunity to defend himself against those violations. In regards to Propositions I and II, while Appellant claims other violations were improperly admitted, the court's finding that he committed the alleged violations outlined in the application suffices to validate the revocation. Furthermore, due process entitles Appellant to argue mitigating circumstances, which was provided by Judge Truong. Concerning Proposition III, revocation decisions are primarily at the discretion of the trial court and will only be overturned in cases of demonstrable abuse of that discretion. Appellant has not shown that the four-year revocation was disproportionate relative to the violations committed. **Decision:** The order of the District Court of Oklahoma County revoking four years of Appellant's twenty-five year suspended sentences in Case No. CF-2011-4693 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** to be issued upon the filing of this decision. --- **Appearances:** **For Appellant:** Joshua C. Smith Attorney at Law 217 N. Harvey, Ste. 108 Oklahoma City, OK 73102 **For Appellee:** Ryan P. Stephenson Assistant District Attorney Oklahoma County 320 Robert S. Kerr, Ste. 505 Oklahoma City, OK 73102 **OPINION BY:** LEWIS, P.J. **CONCUR IN RESULTS:** KUEHN, V.P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. *Click Here To Download PDF*

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F-2018-565

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** KIMBERLY ANN SMITH-GENTILE, Appellant, vs. THE STATE OF OKLAHOMA, Appellee. **No. F-2018-565** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 12 2019** **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Kimberly Ann Smith-Gentile, was convicted by a jury in Pottawatomie County District Court, Case No. CF-2017-342, of ten counts of Possessing Child Pornography. On May 31, 2018, the Honorable Dawson Engle, Associate District Judge, sentenced her in accordance with the jury's recommendation to ten years imprisonment on Counts 1-8 and twenty years imprisonment on Count 9, with all sentences to be served concurrently. Appellant must serve 85% of her sentences before parole consideration. 21 O.S.Supp.2015, § 13.1(16). Appellant raises two propositions of error in support of her appeal: **PROPOSITION I.** THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT Ms. GENTILE KNOWINGLY POSSESSED 10 IMAGES OR VIDEOS OF JUVENILE PORNOGRAPHY. **PROPOSITION II.** UNDER THE FACTS OF THIS CASE, A SENTENCE OF 20 YEARS IS EXCESSIVE IN VIOLATION OF THE UNITED STATES AND OKLAHOMA CONSTITUTIONS. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was convicted of finding child pornography on a smartphone belonging to her boyfriend, Jaymes Dean, but failing to notify authorities, and instead keeping the phone in her possession for several weeks after Dean left town. The fact that the phone contained multiple files of child pornography was not disputed. In Proposition I, Appellant claims the evidence was insufficient to show that she knowingly possessed the child pornography, particularly ten different items of pornography. Once Dean left the phone behind and traveled out of state, Appellant, with knowledge that the phone contained pornographic material, had the authority to control its disposition. At trial, Appellant claimed she was simply unsure of what to do with the phone. The fact remains, however, that she knew it contained child pornography, viewed a number of the images, and even recognized the daughter of a friend in one of the images. Yet at no time did she attempt to notify authorities, even after a social worker informed her that Dean was a convicted sex offender. Instead, Appellant's conduct suggested that she wanted to use the evidence on her own schedule and for her own purposes. Furthermore, Appellant's claim that she only viewed one video file was convincingly contradicted at trial. A rational juror could conclude, beyond a reasonable doubt, that Appellant knowingly possessed ten items of child pornography. **Jackson v. Virginia**, 443 U.S. 307, 319 (1979); **Hamilton v. State**, 2016 OK CR 13, ¶ 4, 387 P.3d 903, 905. Proposition I is therefore denied. In Proposition II, Appellant claims her sentences are shockingly excessive. While the jury recommended the maximum term on one count, the prosecutor never requested a specific punishment, but expressly left that to the jurors' discretion. The trial court ordered concurrent service of all sentences. Finally, we note that the images in question were not simply collected from the internet or some other source; they were direct evidence of child rapes and other sex crimes that Dean himself had committed. Appellant recognized Dean as the adult perpetrator in some of the images. Considering all these circumstances, the cumulative sentences imposed are not shocking to the conscience. **Rea v. State**, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149. Proposition II is denied. **DECISION** The Judgment and Sentence of the District Court of Pottawatomie 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 POTTAWATOMIE COUNTY** **THE HONORABLE DAWSON ENGLE, ASSOCIATE DISTRICT JUDGE** **ATTORNEYS AT TRIAL** SHELLEY LEVISAY 318 NORTH BROADWAY SHAWNEE, OK 74801 COUNSEL FOR DEFENDANT **ATTORNEYS ON APPEAL** NANCY WALKER-JOHNSON INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **APPELLEE** ABBY NATHAN DAVID HAMMER MIKE HUNTER ASST. DISTRICT ATTORNEYS 331 NORTH BROADWAY SHAWNEE, OK 74801 JOSHUA R. FANELLI ASST. ATTORNEY GENERAL COUNSEL FOR THE STATE 313 NE 21 ST STREET OKLAHOMA CITY, OK 73105 **OPINION BY KUEHN, V.P.J.** LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR --- [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-565_1735315294.pdf)

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C-2018-1119

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **AARON MARCUS SHORES,** **Petitioner,** **V.** **THE STATE OF OKLAHOMA,** **Respondent.** **Case No. C-2018-1119** **SUMMARY OPINION DENYING CERTIORARI** **ROWLAND, JUDGE:** Petitioner Aaron Marcus Shores entered a negotiated plea of no contest in the District Court of LeFlore County to resolve his felony and misdemeanor charges in three cases. The charges included: 1. **Case No. CF-2018-239:** Failure to Notify Address Change of Sex Offender (felony). 2. **Case No. CM-2018-371:** Unlawful Possession of a Controlled Dangerous Substance (misdemeanor). 3. **Case No. CM-2018-373:** Malicious Injury to Property Under $1,000.00 (misdemeanor). Pursuant to the plea agreement, one count of Obstructing an Officer and one count of Unlawful Possession of Drug Paraphernalia were dismissed by the State. Judge Marion Fry subsequently sentenced Shores to four years of imprisonment on the felony count and one year in the county jail for each misdemeanor count, with all sentences running concurrently. He was also ordered one year of post-imprisonment supervision and awarded credit for time served. Shores filed a pro se motion to withdraw his plea, which was denied after a hearing. He appeals this denial, claiming: 1. The district court erred in denying his motion to withdraw his plea as he did not receive the benefits of his plea bargain. 2. He received ineffective assistance of counsel. **1. Denial of Motion to Withdraw Plea** Shores argues he did not receive the promised benefits of his plea bargain. The court evaluated this claim against the standard set forth in *Couch v. State*, noting that promises made in plea agreements must be fulfilled. While Shores did not specifically raise his current argument in his initial motion to withdraw, it was discussed during the evidentiary hearing. The appellate court reviews the denial for abuse of discretion and affirmatively holds that Shores received the benefits of his plea agreement. The district court's order confirmed that Shores's Oklahoma sentences would run concurrently with his sentences from Arkansas, fulfilling the terms agreed upon during the plea process. **2. Ineffective Assistance of Counsel** Shores claims ineffective assistance from conflict counsel, who allegedly failed to preserve his claim regarding the benefits of the plea agreement. To prevail on such a claim, Shores must demonstrate that he was prejudiced by counsel's performance. The court found that conflict counsel adequately raised Shores's concerns at the withdrawal hearing, effectively preserving the issue for appeal. Therefore, Shores could not establish that his counsel's performance resulted in any prejudice. **CONCLUSION** The Petition for a Writ of Certiorari is DENIED. The district court’s denial of Petitioner’s motion to withdraw plea is AFFIRMED. **MANDATE ordered to be issued upon the delivery and filing of this decision.** **Appearances:** - Doug Schmuck, Appellate Defense Counsel, for Petitioner. - Matt McBee, Counsel for Withdraw Motion. - Kevin Merritt and Margaret Nicholson, Assistant District Attorneys for the State. --- This summary is designed for clarity and understanding without retaining excessive legal jargon, while accurately reflecting the decisions and arguments presented in the original case summary.

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F-2015-886

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In OCCA case No. F-2015-886, Russell Carl McCrillis appealed his conviction for two counts of Lewd Molestation. In a published decision, the court decided to affirm the judgment but remand the case for the trial court to assess a specific term of years for post-imprisonment supervision. One judge dissented. McCrillis was convicted in a jury trial and received a twenty-year prison sentence and a $20,000 fine for each count of lewd molestation. The sentences were ordered to be served at the same time. McCrillis raised several issues in his appeal. He claimed that his statement to the police should not have been allowed at trial because it was not made freely and voluntarily. He also argued that the jury should have been instructed about the voluntariness of his statement. Additionally, he pointed out that the trial court could not change his sentence to an indefinite probation after prison. Finally, he believed his sentences were too harsh. The court looked closely at whether McCrillis's statement to the police was voluntary and found that he had waived his rights properly and given his statement willingly. This meant the trial court did not make a mistake when it allowed the statement to be presented during the trial. The court did notice that while the judge should have instructed the jury on the voluntary nature of his confession, the lack of instruction didn’t really have an impact on the trial's outcome, as there was strong enough evidence against McCrillis. Regarding the trial court's authority to modify the sentence, the court agreed that it should have set a clear term for post-imprisonment supervision, which means after McCrillis serves his time, he should be supervised for a set number of years. The law says people convicted of certain crimes, like lewd molestation, must have a period of supervision after serving time, usually between nine months and a year. However, there is also a specific law stating that in cases of sexual offenses, supervision could be longer. The court noted that the trial judge didn’t give a fixed duration for supervision, which was a mistake. In the end, while the court agreed with McCrillis on the need for a specified period of supervision upon release, it found that his twenty-year sentence was not too severe based on the details of the crimes committed. Therefore, the court upheld the conviction but sent the case back to have the trial court determine the proper length of post-imprisonment supervision.

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RE-2013-635

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In OCCA case No. RE-2013-635, Bradberry appealed his conviction for the revocation of his suspended life sentences. In an unpublished decision, the court decided to reverse the full revocation and modify it to a ten-year revocation instead. One judge dissented. Bradberry was given suspended life sentences for failing to register as a sex offender and living near a school. He was on probation for less than two weeks when the state accused him of not reporting to his probation officer and not providing proof of employment or treatment. The trial judge decided to revoke his sentences completely due to these violations. Bradberry argued that the judge made a mistake by revoking his sentences in full, claiming it was excessive. The appeals court agreed that the judge abused his discretion, especially since many of Bradberry’s previous issues happened before his new sentencing. They found that the most significant reason for the revocation was his failure to report, which they believed did not warrant a full revocation. In the end, the appeal court decided that Bradberry’s suspended sentences should be modified. Instead of serving a life sentence, he would have to serve ten years of his suspended time. One judge disagreed with this decision and believed the full revocation was justified because Bradberry had not met his probation requirements.

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S-2013-415

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In OCCA case No. S-2013-413 & 415, Mark Anthony Herfurth appealed his conviction for Failure to Register as a Sex Offender and Sex Offender Living within 2000 feet of a School. In an unpublished decision, the court decided to affirm the lower court's ruling to dismiss the charges against him. One judge dissented. Mark Anthony Herfurth was taken to court because he was accused of not registering as a sex offender and for living too close to a school after he had been convicted of a crime related to indecent exposure. In his earlier conviction, he had agreed to register as a sex offender for a certain number of years. However, when laws changed in 2007, it meant that people in his situation could be assigned a risk level and have to register for longer. Herfurth argued that he shouldn't be held to the new law because he had already completed his requirements from his original plea. The judge agreed with him and dismissed the charges, saying that the laws could not be applied to him retroactively. The State of Oklahoma did not agree with this decision. They believed that the new law should apply to Herfurth since he was still required to register as a sex offender. They argued that laws are meant to protect the public, and because he was registering at the time of the new law's change, he should follow the new rules. However, upon review, the court decided that the lower court did not make a mistake. They concluded that the 2007 law was a significant change and should only apply going forward, not backward. The court also stated that applying the 2007 law to Herfurth after his original plea would have changed his obligations unfairly. Therefore, the appeals court agreed with the lower court's decision to dismiss the charges against Herfurth, stating that they have a duty to interpret laws as they were intended at the time of the original guilty plea. The dissenting judge felt differently, believing that the law should have applied to Herfurth based on the new requirements.

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RE-2010-10

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In OCCA case No. RE-2010-10, a person appealed his conviction for lewd molestation. In a published decision, the court decided that the length of the revoked suspended sentence should be shortened. One member of the court disagreed with this decision. The case began when the person was charged and sentenced as a Youthful Offender for lewd molestation. He was given eight years, but on December 22, 2008, he had part of that sentence suspended after spending some time in juvenile custody. Later, he was accused of breaking the rules of his probation, which included failing to register as a sex offender and not completing required treatment. During a hearing, the judge decided that the individual had violated his probation and revoked five years of his suspended sentence. However, upon appeal, the court found that he should actually receive credit for the time he was under juvenile supervision. Given this credit from December 1, 2005, to December 22, 2008, the court modified the revocation to just over four years instead of five. The district court was instructed to update the sentence accordingly.

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S-2007-885

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In OCCA case No. S-2007-885, the defendant appealed his conviction for Failure to Register as a Sex Offender. In an unpublished decision, the court decided to affirm the earlier decisions made by the lower courts. One judge dissented. The case started in the District Court of Tulsa County, where the defendant was accused of not registering as a sex offender. After looking at the evidence presented by the state, the special judge decided there was not enough evidence to go to trial. The state didn't agree and decided to appeal this decision, claiming that the lower courts made errors in their judgments. The main points raised in the appeal included whether there was enough evidence to charge the defendant, if the defense of being homeless should be considered, and if homelessness could excuse the defendant from registering as a sex offender. After listening to arguments and reviewing all the evidence and decisions made previously, the court found that the lower courts did not make mistakes. The judges agreed that there was not enough evidence to hold the defendant for trial and that the reasons given by the lower courts were valid. As a result, the court upheld the decisions of the lower judges and ruled that the defendant would not be tried for the charges brought against him. The final orders from the lower courts were affirmed, meaning that the case was closed without any changes.

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F-2014-478

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In OCCA case No. F-2014-478, David Glen Heard appealed his conviction for two counts of Lewd Molestation. In an unpublished decision, the court decided to affirm his conviction but vacated the imposition of post-imprisonment supervision. One judge dissented. David Glen Heard was found guilty of two counts of Lewd Molestation after being tried by a jury in Tulsa County. The charges stemmed from an incident on June 15, 2006, when Heard was observed behaving inappropriately towards two young girls at a Walmart store. He followed them around the store and attempted to look under their dresses. Witnesses reported his unsettling behavior, and he was later found with a pornographic magazine in his car and identified as a registered sex offender. At the time of the incident, he was on probation for previous sex-related offenses against children. During the trial, testimonies from various witnesses were presented, including a woman who testified about a similar incident involving Heard from years prior. Evidence was admitted under the law to show motive and absence of mistake, which supported the prosecution's case against him. Heard raised several arguments during his appeal, including claims that the statute he was convicted under was vague, the admission of other testimonies was inappropriate, and errors in jury instructions and the failure of his counsel to object to certain evidence. The court found that the law did not provide for a vagueness claim since Heard's actions clearly violated the statute in question. The admission of prior testimonies was ruled permissible as relevant to the case. The trial court’s instructions were also deemed not harmful to the verdict. However, the court recognized an error when ordering post-imprisonment supervision, as it was not authorized for the crimes Heard committed at the time. Thus, while his conviction was confirmed, the order for post-imprisonment supervision was vacated. Ultimately, Heard’s two twenty-year sentences were upheld due to the nature of his actions and background as a repeat offender.

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F-2004-666

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In OCCA case No. F-2004-666, the appellant appealed his conviction for failure to register as a sex offender. In an unpublished decision, the court decided to affirm the conviction but modify the sentence to two years imprisonment. One judge dissented. The case involved Steven Randel Hargrove, who was found guilty by a jury for not registering as a sex offender, which is a legal requirement for people with certain criminal backgrounds. He was sentenced to five years in prison by the judge, following the jury's recommendation. Hargrove appealed, arguing several points regarding his trial and conviction. First, he claimed that there wasn't enough evidence to prove that he intentionally failed to register. He felt this violated his rights as protected by the U.S. Constitution and the Oklahoma Constitution. The court reviewed the evidence and decided that while it was unclear if he had intentionally failed to register, there was enough evidence for a reasonable jury to conclude otherwise. Therefore, his argument on this point was denied. Second, Hargrove argued that he did not get good representation from his lawyer. He felt his lawyer made mistakes that harmed his case. The court agreed that his lawyer should have tried to keep certain information about Hargrove's past offenses from the jury. This information likely influenced the jury to give him a harsher sentence. As a result, the court recognized this as a significant issue. Finally, Hargrove believed his sentence was too harsh and that the mistakes made during the trial denied him a fair trial. Since the court agreed with him about the ineffective assistance of counsel, they decided to change his sentence from five years to two years in prison. In summary, the court upheld Hargrove's conviction but reduced his prison time due to the errors made during his trial. One judge disagreed with this decision, believing there was not enough proof of Hargrove's intent to fail to register as a sex offender.

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C-2003-403

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In OCCA case No. C-2003-403, David Lee Maywald appealed his conviction for Failure to Register as a Sex Offender and Registered Sex Offender Working with or Providing Services to Children. In a published decision, the court decided to modify the sentence in Count II to a fine only, while affirming the denial of the motion to withdraw his guilty plea. One judge dissented. David Lee Maywald, also known as David Lee Graham, was charged with two crimes related to being a registered sex offender. He entered a guilty plea to both charges and was sentenced to prison time and fines. After he changed his mind, he asked to withdraw his guilty plea, feeling he was misinformed about the potential sentences he might face. The court looked closely at Maywald's reasons for wanting to change his plea. First, he argued that he misunderstood the sentencing range for Count II, believing he faced more than just a fine. The court agreed that he shouldn't have received jail time for that count, as the law only allowed for a fine. So, they decided to change his sentence for Count II to just the fine amount. In his second argument, he felt he was misinformed about the maximum fine for Count I. However, the court found that the fine he received was less than what could have been, and since it matched what was agreed upon in the plea deal, it wasn’t a reason to withdraw his plea. For his third point, Maywald argued that he didn’t fully understand the implications of his guilty plea. The court said he didn’t provide enough evidence to show that he entered the plea without understanding its consequences. The court noted that he had been clearly informed multiple times about how he wouldn’t get credit for time served leading up to his sentencing. Overall, while Maywald's request to withdraw his plea was denied, the court acknowledged the error regarding the jail sentence for Count II and modified that sentence to comply with the law. The rest of the decisions from the lower court were kept the same. The judges agreed on most points, but one had a differing opinion on the case.

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