**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **PHILIP JAN CANNON,**
Appellant,
**v.**
**THE STATE OF OKLAHOMA,**
Appellee. **Case No. F-2018-923** **FILED**
**AUG 15 2019**
**Clerk** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Philip Jan Cannon was tried by a jury in the District Court of Pottawatomie County, Case No. CF-2016-541, for Possession of Child Pornography, in violation of 21 O.S.2011, § 1021.2. The jury found Cannon guilty and assessed punishment at twenty years imprisonment and a $25,000.00 fine. The Honorable John Canavan, District Judge, who presided over Cannon's trial, sentenced him according to the jury's verdict. Cannon appeals, raising the issue of whether improper closing remarks by the prosecutor deprived him of a fair trial. Under 21 O.S.Supp.2015, § 13.1, Cannon must serve 85% of his sentence before he is eligible for parole consideration. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. Cannon complains of prosecutorial misconduct, arguing it deprived him of his right to a fair trial. Because the comments at issue were not objected to at trial, our review is for plain error only. *Harney v. State*, 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. To qualify for relief based on plain error, Cannon must demonstrate: (1) the existence of an actual error (a deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning it impacted the trial's outcome. *Hogan v. State*, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court only corrects plain error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings or represents a miscarriage of justice. *Stewart v. State*, 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514. We evaluate alleged misconduct in the context of the entire trial, considering not only the propriety of the prosecutor's actions but also the strength of the evidence against Cannon and the arguments of defense counsel. Both parties have broad latitude to discuss the evidence and make reasonable inferences. Relief is granted only where the prosecutor's flagrant misconduct has so tainted the trial that it is rendered fundamentally unfair. *Jones v. State*, 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998. It is rare that prosecutorial misconduct in closing argument necessitates reversal. *Pryor v. State*, 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722. Cannon alleges the prosecutor argued facts not in evidence and appealed to the jury's sympathy for the victims. However, we find there was no plain error in these remarks. Therefore, this claim is denied. **DECISION**
The Judgment and Sentence of the district court 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 delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY**
**THE HONORABLE JOHN CANAVAN, DISTRICT JUDGE** **APPEARANCES AT TRIAL**
**ADAM BANNER**
**DUSTIN PHILLIPS**
**COUNSEL FOR APPELLANT**
1900 N.W. Expressway, P.O. Box 926
Suite 601
Norman, OK 73070 **APPEARANCES ON APPEAL**
**ROBERT W. JACKSON**
**COUNSEL FOR DEFENDANT**
Oklahoma City, OK 73118 **ADAM PANTER**
**COUNSEL FOR STATE**
**MIKE HUNTER**
Pottawatomie County
Attorney General of Oklahoma
331 N. Broadway
Shawnee, OK 74801 **DIANE L. SLAYTON**
Assistant Attorney General
313 N.E. 21st Street
Oklahoma City, OK 73105 **OPINION BY:** ROWLAND, J.
**LUMPKIN, P.J.:** Concur
**LEWIS, V.P.J.:** Concur
**HUDSON, J.:** Concur
**KUEHN, J.:** Concur [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-923_1734954802.pdf)
