In OCCA case No. RE-2019-619, the appellant appealed his conviction for endangering others while trying to avoid the police and possession of a stolen vehicle. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence but ordered the district court to give him credit for four days he had already served in jail. One judge dissented from this decision.
In OCCA case No. F-2018-894, Olubanji Milton Macaulay appealed his conviction for possession of counterfeit driver licenses. In a published decision, the court decided to affirm some counts but reverse others. One judge dissented. Summary: Olubanji Milton Macaulay was found guilty by a jury of seven counts of possessing counterfeit driver licenses after a trial in Oklahoma. The judge sentenced him to ten years in prison, with sentences running at the same time for each count. He argued that law enforcement illegally searched his rental car, that he faced double punishment for the same crime, and that the trial court wrongly refused to instruct the jury about missing video evidence. When he appealed, the court looked closely at each of his claims. About the first point, the court ruled that the police had the right to search the car because Macaulay had given up any claim of privacy when he said he walked to the bank and did not indicate he owned the vehicle. Thus, his evidence was allowed in court. Regarding the second point, Macaulay claimed he should only be charged with one count since he possessed all the fake IDs in one event. The court agreed that multiple counts for a single act were not allowed. They found he should only be guilty of two counts: one for fake ID he took into the bank and another for the ID found in his car. On the third point about the jury instruction regarding the missing bank video, the court said there was no proof that the police acted in bad faith. Therefore, the request for a jury instruction explaining this did not need to be granted. In summary, the court upheld some of his convictions while reversing others, leading the case forward to dismiss those extra counts.
In OCCA case No. C-2019-15, Nicholas Allan Daniel appealed his conviction for First Degree Felony Murder (Distribution of a Controlled Dangerous Substance) and Robbery with a Firearm. In an unpublished decision, the court decided to grant his request for a writ of certiorari, modifying his conviction for First Degree Felony Murder while reversing his conviction for Robbery with a Firearm. One judge dissented from this opinion. Nicholas Daniel faced serious charges after being accused of killing a man while trying to sell drugs and also robbing him. He pleaded guilty to these charges but later wanted to withdraw his plea. He felt that his lawyer did not help him enough during the process, and he raised several reasons for this claim. He argued that the lawyer had a conflict of interest, that he did not fully understand the consequences of his plea, that the plea lacked a good factual basis, and that he did not get effective help from his lawyer. The court carefully examined each of Daniel's arguments. In the first argument, the court found no real conflict of interest because Daniel’s dissatisfaction stemmed from the state’s evidence and the sentence, not from his lawyer's performance. In the second argument, it was decided that Daniel had entered the plea with a clear understanding that he would face sentencing and that it was done voluntarily. For the third argument, about the factual basis for his felony murder conviction, the court found that there were issues with how the charges were presented. It was determined that the way Daniel described the incident in his plea was inadequate to meet the legal requirements for felony murder because he was treated primarily as a buyer, not a seller of drugs. Thus, the combined crimes could not both stand. In terms of Daniel's claims against his lawyer's effectiveness, the court acknowledged that his lawyer could have done better. However, it ruled against some of Daniel's more serious arguments on the effectiveness of his lawyer, finding that he did not provide sufficient proof that his lawyer’s actions negatively affected his defense. In the final decision, the court adjusted Daniel's felony murder conviction based on the issues around how the charges were processed and reversed the robbery conviction, as it should not stand alongside the adjusted murder charge. Ultimately, the court confirmed Daniel's modified conviction for felony murder but sent the case back regarding the robbery count. One judge disagreed with parts of this conclusion, stating that the trial court had not made a mistake in the first place and therefore should not have granted the appeal. The judge argued that since Daniel's plea was expressed clearly and voluntarily, it should have been upheld without modification. The judge emphasized the importance of adhering to proper legal processes and rules when making such determinations. Thus, the outcome celebrated the importance of ensuring that legal principles and procedures are correctly applied, even as it affirmed Daniel’s conviction under modified circumstances.
In OCCA case No. S-2019-242, the State of Oklahoma appealed Wesley Warren Peritt Weaver, II's conviction for Sexual Abuse of a Child Under 12. In an unpublished decision, the court decided to affirm the trial court's ruling that denied the State's request to introduce evidence of the defendant's prior sexual offenses as propensity evidence. One judge dissented. This case started on January 5, 2017, when the defendant, Weaver, was charged with sexually abusing his daughter, A.W., from 2011 to 2016. During a preliminary hearing, A.W. claimed that her father abused her and shared this information with her mother. The case involved testimonies from both A.W.'s mother and a forensic interviewer who assessed A.W. The State later sought to present evidence of previous sexual offenses allegedly committed by Weaver against another child, A.A., to demonstrate a pattern of behavior. A.A. testified that Weaver had molested her several years earlier. However, during a hearing, the trial court decided not to allow this evidence, stating that its probative value was less than the potential for unfair prejudice against Weaver. The State of Oklahoma appealed this ruling. They argued that the trial court made an error in not permitting the sexual propensity evidence, which could provide context for Weaver's behavior in the current case. The appellate court looked closely at the details of the case and the rules surrounding the admissibility of such evidence. Ultimately, the appellate court ruled to affirm the trial court's decision, meaning that the prior offense evidence would not be allowed during the trial against Weaver. The court concluded that the trial court's decision was reasonable and did not abuse its discretion. They found solid reasoning in the trial court's assessment of the evidence's relevance versus its potential negative impact on the jury's perception. One judge disagreed with the majority opinion, believing that the trial court had not fully considered the nuances of the sexual propensity laws and had conflated different types of evidentiary standards. This dissenting opinion emphasized the importance of acknowledging the differences between types of evidence when it comes to sexual offenses. In short, the case involved serious allegations against Weaver regarding his daughter, and while the State attempted to build a strong case by including prior incidents, the court ultimately felt that allowing such evidence would not be appropriate during the trial.
In OCCA case No. F-2018-1263, Leatherwood appealed his conviction for Murder in the First Degree, Possession with Intent to Distribute a Controlled Dangerous Substance, Possession of a Firearm During Commission of a Felony, Maintaining a Place for Keeping/Selling Controlled Substances, and Unlawful Possession of Drug Paraphernalia. In an unpublished decision, the court decided to affirm his convictions. One judge dissented. Travis Michael Leatherwood fatally shot Aaron Smith on Halloween night in 2017. They were once friends and worked together selling marijuana, but their friendship soured when Smith stole marijuana from Leatherwood. On the night of the shooting, Smith, upset by an exchange of insults with Leatherwood, went to confront him, unarmed. Leatherwood shot Smith with a rifle before he could say a word. Smith later died from the gunshot wound. After the shooting, police found a lot of evidence connecting Leatherwood to marijuana distribution at his home, including a rifle that he had used to shoot Smith and other drug-related items. Leatherwood argued in court that he acted in self-defense, but the jury did not agree. They concluded that he was the aggressor, especially since he called Smith a coward and provoked him. The jury found him guilty of first-degree murder, along with several drug-related charges. Leatherwood raised multiple issues on appeal, including claims that the state did not prove he acted outside of self-defense, that the court gave confusing jury instructions, allowed improper amendments to the charges, and that he had ineffective assistance of counsel. However, the court disagreed with all of his claims. In terms of self-defense, the court ruled that Leatherwood’s actions and words indicated he was not acting in self-defense but rather was the one who provoked the situation. He had armed himself before Smith arrived and shot him before any confrontation occurred. The court also discussed the jury instructions, concluding that the district court did not err by omitting instructions on a lesser charge of heat of passion manslaughter since there was no evidence to support that Smith's actions would provoke such a response from Leatherwood. As for the amendment of charges, the court determined that Leatherwood was sufficiently informed of the charges he faced and that he could defend against them adequately. The evidence showed that he had both the firearm and the controlled substances as part of his operations, fulfilling the requirements for his convictions. Leatherwood's claim that his lawyer was ineffective was also denied because the court found that the lawyer's strategies were reasonable given the overwhelming evidence against Leatherwood. The lawyer focused his arguments on the more serious murder charge rather than the drug offenses, which the jury could have easily decided against Leatherwood irrespective of those counts. Finally, the court ruled that Leatherwood's sentence was not excessive given the nature of the crime and his actions. The judge pointed out that the jury was aware of his age (20 at the time of the crime) and other circumstances, which did not make the sentence shockingly excessive. Ultimately, the court affirmed Leatherwood's convictions and ordered a separate hearing regarding the restitution amount, which needed to be calculated more accurately.
In OCCA case No. RE-2018-1233, Joice appealed his conviction for obtaining cash or merchandise by bogus check/false pretenses. In an unpublished decision, the court decided to vacate the order revoking Joice's suspended sentence and remanded the case to the District Court with instructions to dismiss the State's application to revoke with prejudice. One judge dissented. Joice had originally entered a guilty plea in 2013 for writing a bogus check and received a twenty-year sentence, which was all suspended, meaning he would not serve time in prison if he followed the rules of his probation. However, in 2018, the State claimed he broke the rules of his probation and sought to revoke his suspended sentence. During the hearings, Joice argued that the original sentence was too long and that the State filed their application to revoke his probation too late. He also said his lawyer did not help him properly by not questioning the judge’s decision to revoke his sentence. The court agreed there were major issues with his original sentence and that the State was too late in trying to revoke it. They found that Joice did not get good legal help at his revocation hearing. Since the court recognized that the original sentence was illegal and the State's request to change it came too late, they decided to dismiss the application to revoke Joice’s probation. This means he won't have to serve time because the conditions under which his probation could be revoked were not met correctly.
The document is a summary opinion issued by the Court of Criminal Appeals of Oklahoma in the case of D'Angelo Keiyawn Threatt. The appellant, Threatt, was convicted of being a felon in possession of a firearm and sentenced to eight years in prison. The opinion addresses three propositions of error raised by Threatt on appeal: 1. **Admission of Prior Felony Conviction**: Threatt contended that the trial court abused its discretion by allowing the State to name his specific prior felony conviction (forcible oral sodomy) despite his offer to stipulate that he had a felony conviction. He cited the case Old Chief v. United States to support his argument. The Court ruled that Threatt did not preserve this issue adequately for appeal due to the timing and nature of his objections and ultimately found that there was no plain error affecting his substantial rights. 2. **Prosecutorial Misconduct**: Threatt claimed that the prosecutor's closing argument included highly prejudicial statements that unfairly influenced the jury. The Court examined the statements and determined they were reasonable comments based on the evidence presented at trial. Thus, they did not constitute prosecutorial misconduct that would warrant relief. 3. **Cumulative Effect of Errors**: Threatt argued that the combined effect of the alleged errors warranted a new trial. The Court disagreed, noting that the individual errors did not affect the overall outcome of the trial and therefore did not justify relief. In conclusion, the Court affirmed the judgment and sentence imposed by the District Court of Oklahoma County, finding no reversible error in the trial proceedings. The opinion underscores the importance of proper procedural objections and the evaluation of trial conduct in the context of the entire trial. For more detailed information, a PDF of the full opinion can be downloaded from the provided link.
In OCCA case No. F-2018-114, Andrew Huff appealed his conviction for four counts of Child Neglect and one count of Child Sexual Abuse. In a published decision, the court decided to affirm his conviction and sentence. One judge dissented. Andrew Huff was convicted of neglecting his children and sexually abusing a minor. He was sentenced to a total of twenty-five years for the neglect charges and thirty years for the sexual abuse, with all sentences running concurrently. He raised several arguments against his conviction, claiming his rights were violated through various means. First, Huff stated that his video-recorded statements to an investigator should not have been allowed in court because he didn't properly waive his right to counsel. The court found no error in admitting the statement, stating that Huff’s questioning did not clearly indicate he wanted a lawyer at that moment. Next, Huff argued that hearsay evidence was incorrectly allowed, which hurt his chance of a fair trial. However, the court found that any hearsay used was not harmful to the case since other clear evidence proved the charges. Huff also claimed improper admission of other crimes evidence during his police interview, but again, the court concluded there was enough evidence for a verdict regardless of those statements. Regarding jury instructions, Huff felt the jury did not receive proper guidance on the laws for child sexual abuse, which the court acknowledged but deemed harmless since overwhelming evidence supported the verdict. Huff’s claim of insufficient evidence was denied as the court found that evidence presented allowed for rational conclusions supporting the guilty verdicts on both child neglect and sexual abuse. He also brought up issues regarding prosecutorial misconduct during the trial. The court examined these claims and determined any alleged misconduct was not severe enough to warrant a reversal of the conviction. Huff argued that his counsel was ineffective for not objecting to the introduction of certain evidence and not properly advising him during the trial. The court disagreed, stating that the counsel's performance, while being scrutinized, did not affect the overall outcome of the trial as there was sufficient evidence against him. Lastly, Huff believed that his sentence was excessive, but the court noted that the punishment was within legal limits and that the nature of the crimes warranted the sentence imposed. The overall decision confirmed that there were no reversible errors during the trial, and the affirmance upheld Andrew Huff’s conviction and sentences.
In OCCA case No. F-2018-113, the appellant appealed her conviction for multiple counts of child neglect and enabling child sexual abuse. In an unpublished decision, the court decided to affirm the convictions and the sentences imposed. One judge dissented. The case involved Brenda Marie Huff, who was convicted by a jury of four counts of child neglect and one count of enabling child sexual abuse. The jury sentenced her to 25 years in prison for each count, which would be served at the same time. Brenda and her husband, co-defendant Andrew Huff, were accused of allowing their children to live in very poor conditions. Evidence showed the home was filthy, lacking running water, and filled with animal waste and sexual materials. The children were also exposed to troubling behavior, including sexual messages sent by Andrew to a young girl. Brenda was aware of this behavior but did not act to protect the child. Brenda raised several arguments in her appeal, including claims that the evidence against her was not enough to support the convictions, that there were problems with jury instructions, and that her sentence was too harsh. However, the court found that the evidence presented was sufficient for the jury to conclude that she was guilty beyond a reasonable doubt. The court also noted that there were no errors in how the jury was instructed, and that the severity of her sentence was justified given the circumstances. The court upheld the jury's decision, concluding that Brenda had neglected the children and enabled her husband to harm them. Ultimately, the court affirmed the judgment and sentence, meaning Brenda would serve her time in prison as decided by the jury.
In the Court of Criminal Appeals of the State of Oklahoma, Toni Lynn Cook appeals the revocation of her suspended sentence from the McIntosh County District Court. Cook had originally pled guilty to the charge of Obstructing an Officer. Following her guilty plea, the State filed a Motion to Revoke her suspended sentence, claiming she committed new crimes while on probation, which included multiple counts of Assault and Battery on a Police Officer and Indecent Exposure. The revocation hearing saw evidence presented, including testimonies from jailers detailing that Cook had exposed herself and physically resisted their attempts to move her to a solitary cell, leading to injuries to the officers involved. The trial court found that the State met its burden to show by a preponderance of the evidence that Cook had violated her probation. Cook raised several propositions on appeal: 1. **Insufficient Evidence**: Cook argued that the evidence presented was insufficient to prove the alleged probation violations. However, the court found that the evidence sufficient and credible, affirming that the trial judge did not abuse his discretion. 2. **Waiver of Hearing Within Twenty Days**: Cook contended that her waiver of the right to a hearing within twenty days was not valid. The court ruled that Cook had waived this right knowingly, as she had not requested an early hearing and did not provide evidence that she was unaware of this right. 3. **Excessiveness of Revocation**: Cook argued the revocation was excessive. The court noted that revocation is a matter of grace, and since Cook committed multiple new offenses while on probation, the trial judge's decision to revoke her sentence in full was not an abuse of discretion. In conclusion, the Court of Criminal Appeals affirmed the trial court’s decision to revoke Cook's suspended sentence, finding no merit in her claims. The mandate was ordered to be issued upon filing the decision.
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KENNETH ALLEN DAY,** Appellant, **V.** **STATE OF OKLAHOMA,** Appellee. Case No. F-2018-1161 **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant Kenneth Allen Day was tried and convicted by a jury in the District Court of Oklahoma County (Case No. CF-2017-2586) of: 1. **Count 1:** Sexual Battery (21 O.S.Supp.2015, § 1123(B)) 2. **Counts 2 and 3:** Indecent Exposure (21 O.S.2011, § 1021) The jury recommended a sentence of 30 days imprisonment on Count 1, and 1 year imprisonment each on Counts 2 and 3. The Honorable Timothy R. Henderson, District Judge, presided over the trial and executed the sentences as per the jury's recommendations, ordering them to run consecutively and consecutively to Oklahoma County Case No. CF-16-6470. Day was granted credit for 177 days served and was subject to various costs and fees. Day appeals, raising the following proposition of error: **I. THE TRIAL COURT INCORRECTLY INTERPRETED OKLA. STAT. TIT. 57, § 138(G) BY REFUSING TO GRANT MR. DAY CREDIT FOR ALL TIME SERVED WHILE AWAITING TRIAL AND SENTENCING, CLAIMING THAT THE STATUTE WAS DISCRETIONARY AND NOT MANDATORY.** Upon a thorough review of the entire record including transcripts, exhibits, and the parties' briefs, we find no legal error necessitating relief. Therefore, Day's judgments and sentences are AFFIRMED. **Proposition I:** Day's claim pertains to the nature of credit for time served—whether it is mandatory or discretionary. Citing *Loyd v. State*, 1981 OK CR 5, 624 P.2d 74, Day contends that 57 O.S.Supp.2015, § 138(G) mandates credit for all time served prior to judgment and sentence. However, as recently discussed and clarified in *Luna-Gonzales v. State*, 2019 OK CR 11, this argument has been rejected. This Court noted that *Loyd* is inconsistent with the majority of case law on this subject and that the Oklahoma Legislature has amended § 138 multiple times since 1980, which indicates a legislative intent to modify the ruling in *Loyd*. The current statute indicates that defendants automatically receive credit for jail time served only post-judgment and sentencing. Significantly, *Loyd* is overruled to the extent it conflicts with this interpretation. We also recognize that the district court exercised its discretion appropriately in awarding Day partial credit for time served, which aligns with previous ruling in *Luna-Gonzales* that grants sentencing judges discretion regarding credit for pre-sentencing incarceration. Thus, Day's argument is rejected, and his assertion is firmly denied. **DECISION** The judgments and sentences of the District Court are AFFIRMED. According to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals, the MANDATE shall be issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE** **APPEARANCES AT TRIAL** RICHARD HULL (Counsel for Appellant) HALLIE ELIZABETH BOVOS KRISTEN MESSINA, ASST. PUBLIC DEFENDER **APPEARANCES ON APPEAL** LORI MCCONNELL MIKE HUNTER RACHEL SMITH JULIE PITTMAN, ASST. ATTORNEY GENERAL, (Counsel for Appellee) **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR For further details and access to full judgment, [Click Here to Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1161_1734786325.pdf)
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DUSTIN SCOTT PATTON,** Appellant, Case No. F-2018-957 **V.** **STATE OF OKLAHOMA,** Appellee. **SUMMARY OPINION** **HUDSON, JUDGE:** Dustin Scott Patton was convicted in the District Court of Kay County, Case No. CF-2017-258, of Assault and Battery with a Deadly Weapon, violating 21 O.S.2011, § 652(C). A jury recommended a ten-year sentence, and Honorable David Bandy, District Judge, imposed the sentence as per the jury's verdict. Patton appeals with two propositions of error. 1. **The modified jury instruction improperly relieved the State of proving an essential element of the crime charged.** 2. **Appellant was deprived of a fair trial due to numerous pleas for sympathy for the victim during trial.** Upon thorough review of the record and arguments presented, we find no grounds for relief. Patton's judgment and sentence are **AFFIRMED**. **Proposition I:** Patton concedes he did not object to Instruction No. 24 at trial, necessitating plain error review. To establish plain error, Patton must show an actual error that is obvious and affects his substantial rights. Previous case law indicates that certain weapons, like knives, are per se deadly weapons. Instruction No. 24, which classified a knife as a deadly weapon, was not erroneous, and thus Proposition I is **denied**. **Proposition II:** For prosecutorial misconduct claims, relief is granted only if the misconduct renders the trial fundamentally unfair. Patton only objected to the display of the victim’s scars. The presentation of the victim’s injuries primarily served to illustrate the crime's severity and the use of force, which was pertinent to the charges against Patton. This evidence was not unduly prejudicial, and thus, Proposition II is also **denied**. **DECISION:** The District Court's Judgment and Sentence are **AFFIRMED**. *Issued upon the delivery and filing of this decision.* **OPINION BY:** HUDSON, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. --- For further details, you can download the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-957_1734873972.pdf).
**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **UBALDO HERNANDEZ,** **Appellant,** **vs.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-823** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 30 2020** **JOHN D. HADDEN** **CLERK** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Ubaldo Hernandez, was convicted by a jury in the Muskogee County District Court, Case No. CF-2016-608, of Child Sexual Abuse. On August 8, 2018, the Honorable Thomas H. Alford, District Judge, sentenced him to thirty years imprisonment, in accordance with the jury's recommendation. He must serve 85% of this sentence before parole consideration. (21 O.S.Supp.2015, § 13.1(14)). **Propositions of Error:** Appellant raises four propositions of error in support of his appeal: **PROPOSITION I:** Admission of other bad acts evidence prejudiced the jury and denied Mr. Hernandez a fair trial. **PROPOSITION II:** Mr. Hernandez was denied a fair trial due to prosecutorial misconduct. **PROPOSITION III:** Mr. Hernandez received ineffective assistance of counsel. **PROPOSITION IV:** The accumulation of errors deprived Mr. Hernandez of a fair proceeding. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. **Case Overview:** Appellant was convicted of sexually abusing his daughter over several years. In Proposition I, he contends the trial court erred in admitting various references to other bad acts. Since there was no objection to most evidence presented, we review for plain error. The allegations arose years after the abuse began. The defense strategy involved questioning the victim's credibility due to her delay in reporting. The victim testified about Appellant's controlling nature, drinking, and family dynamics to explain this delay. The evidence cited by Appellant primarily relates to corroborative testimony from family members regarding Appellant's behavior, which aligns closely with the victim’s testimony. The trial court instructed the jury on the limited use of bad-acts evidence. Thus, admitting the accounts of Appellant's behavior did not constitute plain error. **Proposition II:** Appellant cites instances of prosecutorial misconduct. However, there were no objections to these comments, resulting in plain error review. His claims about comments diminishing the presumption of innocence are inadequately specified. The prosecutor’s efforts to rehabilitate a witness's credibility were not improper given the context of the defense's portrayal of her. In summary, there was no reasonable probability that the prosecutor's comments affected the trial's outcome. **Proposition III:** Appellant claims ineffective assistance of counsel on multiple grounds. To prevail, one must demonstrate both deficient performance and resulting prejudice. The claims related to ensuring a complete record and failing to object to alleged misconduct fail due to a lack of demonstrated prejudice impacting the trial's outcome. **Proposition IV:** Having reviewed the evidence, we find no accumulation of error which would warrant relief. **DECISION:** The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED. **ORDERS:** Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. **ATTORNEYS:** - **ANDREW HAYES,** Counsel for Defendant - **WYNDI THOMAS HOBBS,** Deputy Division Chief - **NALANI CHING,** Counsel for Appellee - **MIKE HUNTER,** Attorney General of Oklahoma **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR IN RESULTS **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-823_1735212863.pdf)
This document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the case of Ronald Fitzgerald Williams. Williams entered a negotiated guilty plea to multiple counts related to drug offenses and other violations. After sentencing, he filed a motion to withdraw his guilty plea, which the trial court denied. The Court of Criminal Appeals granted a writ of certiorari (a type of court order) and remanded the case for a new hearing on Williams' motion to withdraw his plea. The court found significant errors: 1. Williams was allegedly misadvised about his appellate rights, affecting the voluntariness of his plea. 2. The evidentiary hearing on the motion to withdraw the plea was held in his absence without a valid waiver of his right to be present. 3. Williams asserted he was denied effective assistance of counsel. The court emphasized that due process requires a defendant's attendance at a hearing concerning the withdrawal of a plea unless there’s evidence of a waiver, which was not present in this case. The court reversed the trial court’s denial of the motion to withdraw the plea and ordered a new hearing to ensure due process is upheld. The document concludes with information about the attorneys involved in the case and instructions for further proceedings. For additional details or specific legal arguments, you can download the full opinion using the link provided.
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CAMERON LEE SCHEMMER,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-1023** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 23 2020** **SUMMARY OPINION** **JOHN D. HADDEN** **CLERK** **LUMPKIN, JUDGE:** Appellant, Cameron Lee Schemmer, was tried by the court and convicted of Count 1, Forcible Sodomy, in violation of 21 O.S.2011, § 888, and Counts 2-4, Lewd Molestation, in violation of 21 O.S.2011, § 1123, in Kingfisher County District Court, Case No. CF-2017-96. The trial court sentenced Appellant to twenty years imprisonment with all but the last five years suspended for Count 1. For Counts 2-4, the court sentenced him to twenty-five years imprisonment on each count, to run concurrently to one another but consecutively to the sentence for Count 1. As a result, Appellant will be required to serve 85% of his sentences before becoming eligible for parole, as per 21 O.S.Supp.2015, § 13.1. From this judgment and sentence, Appellant appeals, raising the following propositions of error: **I.** The record in this case does not sufficiently demonstrate that Appellant knowingly and voluntarily waived his right to a jury trial. **II.** Mr. Schemmer received an excessive sentence when the trial court followed the wrong sentencing statute. Upon thorough consideration of these propositions and the entire record, including the original record, transcripts, and briefs of the parties, we find no relief is warranted under the law and evidence presented. **Proposition I:** Appellant argues that the record is insufficient to support a finding that he knowingly and voluntarily waived his right to a jury trial. Since he did not object before the non-jury trial, we review this claim for plain error, as established in *Simpson v. State*, 1994 OK CR 40, 876 P.2d 690. Plain error requires that Appellant demonstrate an actual error that is plain or obvious and affects substantial rights. A defendant may waive their right to a jury trial, but the waiver must be knowingly, competently, and intelligently made. The record shows that prior to trial, the court engaged in a colloquy with Appellant regarding his jury trial waiver. Appellant confirmed his satisfaction with his attorney and expressly indicated his desire to waive the jury trial right. This established a knowing and intelligent waiver by Appellant. Therefore, we deny this proposition as the trial court's assessment was in compliance with the law. **Proposition II:** Appellant contends his sentence is illegal because the Information alleged that R.N. was a child under sixteen, not under twelve. Thus, Appellant argues that the sentencing range should have been from one or three years to twenty years instead of a minimum of twenty-five years, as required when the child is under the age of twelve. Since Appellant failed to object at sentencing, we again look for plain error. The Information indicated that R.N. was under the age of sixteen at the time of the offenses, and the evidence revealed she was ten years old when the abuse began and eleven when it ceased. Appellant was charged under 21 O.S.2011, § 1123(A), which necessitates a minimum of twenty-five years imprisonment when the child is under twelve years of age. A court in a non-jury trial retains the presumption of knowing the law correctly. The facts show that R.N. was indeed under twelve when the offenses occurred, and the court found this circumstance beyond a reasonable doubt. Therefore, the claim of an illegal sentence based on an erroneous application of the statute is without merit. **DECISION:** The **JUDGMENT and SENTENCE is AFFIRMED**. Pursuant to Rule 3.15, the **MANDATE is ORDERED issued** upon this ruling. **APPEARANCES:** **Trial Counsel:** Blayne Allsup **Appellate Counsel for Appellant:** Cindy Brown Danner **Counsel for State:** John Salmon, Assistant District Attorney, and Theodore M. Peepers, Assistant Attorney General. **OPINION BY:** LUMPKIN, J. **COUNSEL FOR THE STATE:** CONCURS **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur in Result **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **KUEHN, V.P.J., CONCURRING IN RESULT:** While I concur with the outcomes reached, I note a discrepancy in the standard of review applied to Proposition I. The burden rests with the State to prove any constitutional error harmless beyond a reasonable doubt, as highlighted in *Chadwell v. State* and *Chapman v. California*. The majority's application of the plain error standard does not recognize this shifting burden adequately. **[Document ends here]**
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BERT GLEN FRANKLIN,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-1103** **OPINION** LUMPKIN, JUDGE: Appellant, Bert Glen Franklin, was tried by jury and convicted in a consolidated trial of Count 1, First Degree Murder (Child Abuse), and of Count 2, Solicitation of First Degree Murder. The jury recommended punishment of life imprisonment without parole on Count 1 and life imprisonment on Count 2, with the sentences running consecutively. Appellant appeals from this judgment and sentence raising two propositions of error. **PROPOSITION I: Joinder of Charges** Appellant contends that his cases should not have been joined in one trial, asserting that this improper joinder resulted in prejudice. However, as Appellant failed to object at trial, we must review this for plain error, which requires an actual error that is plain or obvious and that affects the Appellant's substantial rights. The statute governing joinder of charges, 22 O.S.2011, § 438, permits the trial of two or more offenses together if they could have been joined in a single indictment. Our analysis is guided by reconciling the factors set forth in previous case law. 1. **Same Type of Offenses:** The charges of murder and solicitation reflect a common theme of violence directed towards individuals involved with the defendant, qualifying them as the same type of offenses. 2. **Proximity in Time:** While the offenses occurred approximately seventeen months apart, the delay was due to Appellant's incarceration. They are sufficiently related given the circumstances under which Appellant acted. 3. **Proximity in Location:** Both offenses were committed within Oklahoma County, suggesting a logical relationship between the two. 4. **Overlapping Proof:** Evidence supporting each charge would have been admissible in separate trials since they are intrinsically linked to Appellant’s actions and intent. Given these observations, we find that the joinder was proper, and Appellant suffered no prejudice; therefore, no error occurred. We deny Proposition I. **PROPOSITION II: Ineffective Assistance of Counsel** Appellant argues that his trial counsel was ineffective for not objecting to the joinder. Under the Strickland test, Appellant must demonstrate both that counsel's performance was deficient and that such performance prejudiced his case. Since we determined in Proposition I that the joinder was appropriate, Appellant cannot show that any failure to object prejudiced his case. As a result, we also deny Proposition II. **DECISION** The judgment and sentence are affirmed. The mandate is ordered issued upon the delivery and filing of this decision. --- **APPEARANCES:** **For Appellant:** R. Scott Adams Box 926 Norman, OK 73070 **For Appellee:** Mike Hunter Attorney General of Oklahoma Theodore M. Peeper, Asst. Attorney General 320 Robert S. Kerr, #505 Oklahoma City, OK 73102 --- **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.:** Concur in Result **KUEHN, V.P.J.:** Recuse **HUDSON, J.:** Concur **ROWLAND, J.:** Recuse --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1103_1734788162.pdf) This ruling affirms the conviction and sentences of Bert Glen Franklin and addresses the legal standards regarding the joinder of offenses and ineffective assistance of counsel.
**Court of Criminal Appeals of Oklahoma** **Antonio Deondre Smith, Appellant, v. The State of Oklahoma, Appellee.** **Case No. F-2018-1082** **Summary Opinion** **Judges:** Kuehn, Vice Presiding Judge; Lewis, P.J.; Lumpkin, J.; Hudson, J.; Rowland, J. **Date Filed:** January 16, 2020 **Opinion Information:** - Appellant was convicted of Accessory to Murder, After Conviction of Two or More Felonies, related to the killing of his former step-father. - Sentenced to life imprisonment by Judge Kelly Greenough. **Propositions of Error:** 1. The trial court erred in admitting evidence of assault rifles and ammunition, impacting Appellant's right to a fair trial. 2. The sentence of life for Accessory to Murder is excessive. **Decision:** - The Court affirms the District Court’s judgment and sentence. **Details:** - Appellant was charged with First Degree Murder but was convicted of Accessory to Murder. - Evidence indicated that he was present at the murder and helped dispose of the weapon. He testified that another person was the actual killer. - The Court reviewed the admission of firearms evidence for abuse of discretion and found the introduction of the assault rifles irrelevant. - While acknowledged as an abuse, it was deemed harmless error given the trial court's jury instructions and Appellant's admissions during testimony. **On Sentencing:** - The circumstantial evidence and Appellant's criminal history made the life sentence appropriate, and it was not considered shocking. **Final Judgment:** - The District Court’s decision is upheld. - The mandate is to be issued upon filing this decision. **Dissenting Opinion:** - Judge Hudson concurs with the results but disagrees with the major opinion regarding the admissibility of firearms evidence, asserting it was relevant and that the trial court did not abuse its discretion. **Download PDF:** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1082_1734857545.pdf)
In OCCA case No. F-2017-963, Randall Duane Throneberry appealed his conviction for Lewd Acts with a Child Under 16. In an unpublished decision, the court decided to affirm the conviction and the sentence of life imprisonment without the possibility of parole. One judge dissented. Randall Duane Throneberry was tried and found guilty in an Oklahoma court for lewd acts with an child under the age of 16. The jury recommended that he be sentenced to life in prison without any chance for parole because he had a prior conviction for a similar crime. The case began when a young girl named R.F. reported that Throneberry had molested her while she was sleeping on a couch. The events happened in August 2015 when R.F. and her mother were staying at a family friend's house, where Throneberry was also visiting. One night, while R.F. was sleeping, Throneberry was found standing too close to her and had his hand under her blanket. The next morning, R.F. woke up to find Throneberry touching her inappropriately. During the trial, Thorneberry argued that some testimonies regarding R.F.'s behavior after the incident should not have been allowed, claiming that it unfairly impacted the jury. However, the court ruled that this evidence was relevant to show the credibility of R.F.'s testimony. Throneberry also challenged the admission of testimony from another victim, D.W., who had been molested by him when she was seven years old. The court allowed this testimony as it demonstrated Throneberry's pattern of behavior. Despite Throneberry's claims, the court found that the testimony was relevant and important for the case. Throneberry's argument that his life sentence without parole was unconstitutional was also denied. The court stated that the sentence was not excessively harsh compared to the serious nature of the crime and Throneberry's history of similar offenses. The judge noted that sentencing is ultimately a matter for the legislature, and in these kinds of cases, severe punishments are justified. In summary, the court upheld Throneberry's conviction and life sentence, finding no errors in the trial or the evidence presented. The judgment was affirmed, with one judge expressing a different opinion.
In the case of Anthony Phillip Miller, Jr. v. The State of Oklahoma (Case No. F-2019-54), the Oklahoma Court of Criminal Appeals affirmed Miller's conviction and sentence for child sexual abuse. The trial, held in the District Court of Tulsa County, resulted in a jury finding Miller guilty and sentencing him to twenty-five years imprisonment, with an additional ten years of post-imprisonment supervision. Miller raised several issues on appeal: 1. **Prosecutorial Misconduct**: Miller argued that the prosecutor's comments during closing arguments deprived him of a fair trial. He claimed that these comments undermined his constitutional rights, including his right to a jury trial and his right to remain silent. Although the Court acknowledged that some comments were improper, they ruled that the overall evidence against Miller, which included a confession, rendered any prosecutorial error harmless. 2. **Ineffective Assistance of Counsel**: Miller contended he was denied effective legal representation because defense counsel indicated in opening statements that he would testify but ultimately did not. However, the Court found that this was a strategic decision made after consulting with Miller and did not demonstrate ineffective assistance. 3. **Cumulative Error**: Miller claimed that, although no single error warranted reversal, the cumulative effect of errors did. The Court found that there were no combined errors affecting the trial's outcome. Ultimately, the Court upheld Miller's conviction, stating that the errors did not undermine the integrity of the trial, and affirmed the sentence imposed by the District Court. The mandate was ordered to be issued following the decision.
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** S.M.W.B., Appellant, v. No. J-2019-578 THE STATE OF OKLAHOMA, Appellee. **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JAN - 2 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant was charged as a youthful offender in Caddo County District Court Case No. YO-2019-1 on February 13, 2019, with five counts of Lewd or Indecent Acts to Child Under 12. On March 28, 2019, the State filed a Motion to Impose an Adult Sentence pursuant to 10A O.S.Supp.2018, § 2-5-208. On April 3, 2019, Appellant filed a Motion for Certification to the Juvenile Justice System pursuant to 10A O.S.Supp.2018, § 2-5-206. Following a hearing on these motions, Honorable David Stephens, Special Judge, denied Appellant's motion and granted the State's motion. From this order, Appellant appeals, raising the following issues: 1. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING CERTIFICATION OF S.M.W.B. AS A JUVENILE; and 2. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEE'S MOTION TO CERTIFY AS AN ADULT. Pursuant to Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), this appeal was automatically assigned to the accelerated docket of this Court. Oral argument was held on November 21, 2019. After a review of the record and the arguments presented, we find no merit to the propositions of error raised by Appellant. The key issue before this Court is whether the trial court abused its discretion in denying Appellant's motion for certification as a juvenile and granting the State's motion to impose adult sentencing. An abuse of discretion is defined as a clearly erroneous conclusion and judgment that contradicts the logic and effect of the facts. The trial court's decision must be supported by the evidence presented, and our review is limited to the record. Judge Stephens appropriately considered the criteria mandated by Sections 2-5-206 and 2-5-208 of Title 10A, leading us to conclude that the record supports his decision. **DECISION** The order of the District Court of Caddo County denying Appellant's motion for certification as a juvenile and granting the State’s motion for imposition of adult sentencing is **AFFIRMED**. The State's motion to file a properly verified response brief is **GRANTED**, and the Amended Response to Application for Accelerated Docket is ordered to be **FILED** by the Clerk of this Court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is **ORDERED** issued upon the filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY, THE HONORABLE DAVID STEPHENS, SPECIAL JUDGE** **APPEARANCES AT TRIAL** **MARK OSBY** P.O. BOX 850126 YUKON, OK 73085 COUNSEL FOR APPELLANT **APPEARANCES ON APPEAL** **ANDREW BENEDICT** CADDO CO. ASST. DIST. ATTY. 110 S.W. 2ND ST. ANADARKO, OK 73005 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR IN RESULTS **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/J-2019-578_1734445561.pdf)
**Court of Criminal Appeals of Oklahoma** **Case:** Andrew Joseph Revilla v. The State of Oklahoma **Citation:** 2019 OK CR 30 **Date Filed:** December 19, 2019 **Docket Number:** F-2018-929 **Summary Opinion** **Judges:** Kuehn, Vice Presiding Judge; Lewis, P.J.; Lumpkin, J.; Hudson, J.; Rowland, J. --- **Overview:** Andrew Joseph Revilla was convicted in Jackson County District Court on two counts of Lewd Molestation of a Minor and one count of Forcible Sodomy, receiving concurrent twenty-year sentences. He raised five propositions of error in his appeal, which the Court addressed. --- ### Propositions of Error **Proposition I - Ineffective Assistance of Counsel:** Revilla claimed ineffective assistance because his counsel failed to file a motion to quash based on insufficient evidence presented at the preliminary hearing. The Court found that the evidentiary standards at a preliminary hearing do not require strict adherence to corroboration rules and that the victim's testimony, along with corroborative evidence, was sufficient for bindover. As such, the claim did not support a finding of ineffective assistance. **Proposition II - Improper Evidence of Other Crimes:** Revilla contended that evidence of his drug use and criminal behavior introduced during cross-examination of character witnesses was prejudicial. The Court noted that this evidence was permissible to challenge the credibility of witnesses. Additionally, defense counsel did not object to this line of questioning, which limited grounds for relief. **Proposition III - Omitting Jury Instruction:** Revilla argued that the trial court improperly omitted an explanation regarding how jurors should treat prior inconsistent statements by the victim. The Court acknowledged the omission but concluded the error did not affect the trial’s outcome since the victim's preliminary statements were not exculpatory. **Proposition IV - Prosecutorial Misconduct:** Revilla alleged various instances of prosecutorial misconduct. The Court found that most complaints lacked timely objections and did not undermine the fairness of the trial. **Proposition V - Cumulative Error:** Revilla asserted that even if individual errors were not significant, their cumulative effect denied him a fair trial. The Court found no cumulative impact from the identified issues. --- ### Decision The Court affirmed the judgment and sentence of the District Court of Jackson County. Revilla's claims of error were denied, and his conviction was upheld. **Mandate ordered upon filing of this decision.** **For Appellant:** Kenny Goza **For Appellee:** Mike Hunter, Attorney General **Judges' Concurrence:** Lewis, Lumpkin, Hudson, Rowland all concurred with the opinion. [**Click Here to Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-929_1734877175.pdf)
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Filed December 12, 2019** **Conner E. Dover, Petitioner, Case No. C-2019-25** **v.** **The State of Oklahoma, Respondent.** **SUMMARY OPINION DENYING CERTIORARI** LEWIS, PRESIDING JUDGE: Conner E. Dover, Petitioner, pled guilty to Count 1, unauthorized use of a motor vehicle, in violation of 47 O.S.2011, § 4-402; and Count 2, aggravated attempting to elude a police officer, in violation of 21 O.S.2011, § 540(A)(B), in the District Court of Oklahoma County, Case No. CF-2018-610. The Honorable Ray C. Elliott, District Judge, accepted the plea and delayed sentencing pending Petitioner's completion of a Regimented Inmate Discipline program. Judge Elliott later sentenced Petitioner to five (5) years imprisonment for each count, to be served consecutively. Petitioner filed an application to withdraw the plea, which was denied. He now seeks a writ of certiorari, asserting the following proposition of error: The trial court abused its discretion by not allowing him to withdraw his guilty plea when the court did not intend to sentence him in accordance with the plea agreement. Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction (Weeks v. State, 2015 OK CR 16, ¶ 11, 362 P.3d 650, 654); whether the sentence is excessive (Whitaker v. State, 2015 OK CR 1, ¶ 9, 341 P.3d 87, 90); whether counsel was constitutionally effective (Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22, 31); and whether the State has the authority to prosecute the defendant at all (Weeks, 2015 OK CR 16, ¶ 12, 362 P.3d at 654). A valid plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant (North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L.Ed.2d 162 (1970)). We review the denial of a motion to withdraw a plea for an abuse of discretion (Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998), unless it involves a question of statutory or constitutional interpretation, which we review de novo (Weeks, 2015 OK CR 16, ¶ 16, 362 P.3d at 654). We find that Petitioner's plea was knowingly and voluntarily entered. Petitioner’s dissatisfaction with the sentences he received does not provide sufficient grounds for withdrawal of a plea (Lozoya, 1996 OK CR 55, ¶ 44, 932 P.2d at 34; Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1383). The trial court did not abuse its discretion by denying Petitioner's motion to withdraw the plea. No relief is warranted. **DECISION** The petition for the writ of certiorari is DENIED. 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 delivery and filing of this decision. **APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE** **APPEARANCES AT TRIAL** ROBIN BRUNO ANDREA DIGILIO MILLER DANNY WHITE 320 ROBERT S. KERR # 611 OKLAHOMA CITY, OK 73102 ATTORNEY FOR APPELLANT (PLEA & SENTENCING) **APPEARANCES ON APPEAL** THOMAS P. HURLEY 320 ROBERT S. KERR # 611 OKLAHOMA CITY, OK 73102 (WITHDRAWAL) ATTORNEYS FOR DEFENDANT DAN POND ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR # 505 OKLAHOMA CITY, OK 73102 ATTORNEY FOR THE STATE **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.:** Concur in Results **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur For more details, [click here to download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2019-25_1733763771.pdf).
**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)
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **AARON THOMAS BROCK,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-562** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Aaron Thomas Brock was convicted by jury of robbery with a dangerous weapon and conspiracy to commit a felony in Oklahoma County District Court, receiving a total sentence of thirty-five years imprisonment. He appeals with two propositions of error. **Proposition One: IAD Violation** Brock argues his rights under the Interstate Agreement on Detainers (IAD) were violated when the State did not bring him to trial within the mandated 180 days. The trial court ruled that no proper detainer was lodged against him as required by Article III of the IAD. Brock contends that a documentation was sent to the appropriate authorities, triggering the IAD timeline. The trial court determined that there was no evidence of a proper detainer because the Oklahoma County District Attorney's office and the Court Clerk's office had no record of receiving documentation from Brock. Notably, the trial court found a facsimile from the Sheriff's office did not constitute a proper detainer as defined by case law (Fex v. Michigan). The Court agreed with the trial court's findings, ruling that Brock failed to provide sufficient documentation and credible evidence to support his claims. **Proposition Two: Insufficient Evidence** In his second proposition, Brock asserts that the evidence was insufficient to uphold the conviction for robbery with a dangerous weapon. The standard for reviewing evidence requires this Court to determine if, viewing the evidence favorably to the prosecution, a rational jury could find guilt beyond a reasonable doubt. The facts presented included testimony that a knife was brandished toward a victim and that money was taken by a co-defendant and given to Brock. The Court found that this evidence met the elements for robbery with a dangerous weapon, reinforcing that the presence of fear in the victim suffices for conviction. **Decision** Both propositions of error raised by Brock are denied. The judgment and sentence are AFFIRMED. A mandate will issue upon filing this decision. **Appeal from the District Court of Oklahoma County** The Honorable Timothy R. Henderson, District Judge **Attorneys for Appellant**: Nick Southerland, Andrea Digilio Miller, Micah Sielert **Attorneys for Appellee**: Kelly Collins, Mike Hunter, Lori McConnell, Jennifer B. Miller **OPINION BY:** LEWIS, P.J. **CONCURRING:** KUEHN, V.P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [**Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-562_1735316443.pdf)
In OCCA case No. F-2017-1147, Michael Andrew Nordbye appealed his conviction for Murder in the First Degree (Child Abuse). In an unpublished decision, the court decided to uphold the conviction, concluding that sufficient evidence supported the jury’s verdict. One judge dissented. Michael Andrew Nordbye was found guilty of killing a four-year-old girl named J.H. The jury sentenced him to life in prison without the possibility of parole, and he was also fined $1,000. The case involved disturbing evidence of injuries on J.H.'s body, including bruises and cigarette burns, which suggested she had been abused before her tragic death. On November 15, 2015, J.H. was brought to the hospital but was unresponsive and cold. Doctors tried to save her, but she was declared dead shortly after arriving. The medical examiner determined that J.H. had blunt force injuries and several cigarette burns. They believed these injuries were inflicted shortly before her death. Evidence showed that Nordbye was with J.H. during the hours leading up to her death but his account of the events was inconsistent. During the trial, it was revealed that he had taken her to various places and returned home, where J.H. was later found unresponsive. Witnesses testified about the day of J.H.'s death, including retrospective video surveillance and testimonies that placed Nordbye with J.H. in different locations. The jury was presented with medical evidence indicating the cause of death was homicide due to blunt force trauma, compounded by a possible drug overdose. Despite Nordbye's claims, the jury found him guilty based on the compelling evidence that linked him to the injuries and the timeline leading up to J.H.'s death. Several claims made by Nordbye about improper legal proceedings were dismissed by the court, including issues concerning jury instructions and witness testimonies that were not allowed. The court ultimately found that the trial had been conducted fairly and that the evidence sufficiently demonstrated that Nordbye was guilty of the charges.