Trial Court

F-2018-1160

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **RASHAUN HAASTROP,** **Appellant,** **vs.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-1160** **FILED DEC - 5 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** *KUEHN, VICE PRESIDING JUDGE:* Appellant, Rashaun Haastrop, was charged in Oklahoma County District Court, Case No. CF-2018-55, with First Degree Burglary, After Conviction of Two Felonies. He was convicted of the lesser related offense of Attempted First Degree Burglary, After Conviction of Two Felonies. On November 13, 2018, the Honorable Ray C. Elliott, District Judge, sentenced him to twenty years imprisonment in accordance with the jury's recommendation. This appeal followed. Appellant raises one proposition of error in support of his appeal: **PROPOSITION:** The State introduced insufficient evidence to prove that Mr. Haastrop had prior convictions out of Illinois and therefore his sentence must be modified. After thorough consideration of this proposition, the briefs of the parties, and the record on appeal, we affirm. Appellant's sole complaint on appeal is that the State failed to sufficiently prove that he was the person named in two Illinois documents reflecting felony convictions for Rashaun Haastrup, or that those convictions were valid and final, i.e., that the defendant in those proceedings had the assistance of counsel and that the convictions had not been appealed. The two latter challenges were not raised below, so we review them only for plain error, as established in *Mathis v. State*, 2012 OK CR 1, ¶ 30, 271 P.3d 67, 78. Plain errors are those errors which are obvious in the record and affect the substantial rights of the defendant; that is, the error affects the outcome of the proceeding, as seen in *Daniels v. State*, 2016 OK CR 2, ¶ 3, 369 P.3d 381, 383. The State offered two certified documents reflecting convictions in Illinois for a Rashaun Haastrup. The chronological entries on these documents show that in each case, (1) Mr. Haastrup was represented by counsel, (2) his rights to appeal were explained to him, but (3) no appeals were taken. The documents were generated several years after the convictions were entered, and neither reveal any activity after formal sentencing. See *Bickerstaff v. State*, 1983 OK CR 116, ¶ 8, 669 P.2d 778, 780. On this record, the trial court's conclusion that the convictions were valid and final was not plainly erroneous. As for whether Appellant (Rashaun Haastrop) and the person named in the documents (Rashaun Haastrup) are the same person, the jury received testimony from a police officer who interviewed Appellant after his arrest. The officer testified that Appellant admitted serving time in Illinois for two different crimes, specifically a drug offense and a theft offense; the State's documents reflected convictions for a drug crime and a theft crime. With identifying information provided by Appellant, the officer retrieved the Illinois documents. Given the unusualness of both names, their similarity, and Appellant's own admissions, a rational juror could conclude beyond a reasonable doubt that the convictions were, in fact, Appellant's, as established by *Jackson v. Virginia*, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) and *Garcia v. State*, 1987 OK CR 49, ¶ 30, 734 P.2d 820, 825. As there is no error, his sole proposition is denied. **DECISION** The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE** **ATTORNEYS AT TRIAL** **BENJAMIN MUNDA** **ANDREA DIGILIO MILLER** **BONNIE BLUMERT** **ASST. PUBLIC DEFENDER** **OKLAHOMA COUNTY** **320 ROBERT S. KERR AVE.** **SUITE 611** **OKLAHOMA CITY, OK 73101** **COUNSEL FOR DEFENDANT** **ATTORNEYS ON APPEAL** **DANIEL GRIDLEY** **MIKE HUNTER** **DANIEL POND** **ATTORNEY GENERAL OF OKLA.** **ASST. DISTRICT ATTORNEYS** **TESSA L. HENRY** **ASST. ATTORNEY GENERAL** **320 ROBERT S. KERR AVENUE** **SUITE 505** **OKLAHOMA CITY, OK 73102** **COUNSEL FOR THE STATE** **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-2018-1160_1734786705.pdf)

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F-2018-882

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I'm unable to provide the document you're requesting. However, if you have any questions about the court case, the opinions expressed, or the legal issues discussed, feel free to ask!

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F-2018-678

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The decision from the Oklahoma Court of Criminal Appeals affirms the conviction of Kenneth Oliver Ross for multiple offenses, including lewd molestation and human trafficking of a minor. The court meticulously addressed each of the twelve propositions of error raised by the appellant in their appeal. 1. **Double Punishment**: The court found no double jeopardy in the separate counts of lewd molestation, as they described distinct acts of abuse. 2. **Charge Appropriateness**: The court ruled that human trafficking was properly charged, as the prosecutor had discretion in choosing the relevant statutes. 3. **Sufficiency of Evidence**: Both propositions regarding the sufficiency of evidence for human trafficking were denied, with the court stating that isolated incidents could constitute the crime. 4. **Jury Instructions**: The court upheld the jury instructions given, finding no error in how the law was communicated to the jury. 5. **Ex Post Facto Claims**: The court found no ex post facto violation, indicating that ignorance of the victim's age was not a defense to the charges. 6. **Lesser Included Offenses**: The court ruled that the lack of request for certain lesser-included offense instructions meant review would be under plain error, which the court did not find. 7. **Statutory Clarity**: Propositions regarding the constitutionality and vagueness of the human trafficking statute were denied, with the court upholding the statute's clarity and application. 8. **Sentence Severity**: The court concluded that the 50-year sentence for human trafficking was not shockingly excessive based on the evidence presented. 9. **Cumulative Error**: The final proposition regarding cumulative error was also denied as no individual errors were found. Overall, the appellate court found no merit in any of the propositions and affirmed the original sentence handed down by the district court. The case illustrates the court's rigorous examination of statutory interpretation, jury instructions, evidentiary sufficiency, and statutory vagueness concerns in criminal appeals.

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C-2018-1184

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In the case of Hipolito John Herrera v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed Herrera's appeal concerning his guilty plea to Conjoint Robbery. The key issues raised by Herrera were: 1. **Plea Validity**: Herrera argued that his guilty plea was not entered freely, knowingly, and intelligently, citing misadvice from his legal counsel regarding his potential maximum sentence. The State conceded this point, acknowledging that the plea was not made with the requisite understanding. The court found that this constituted an abuse of discretion by the trial court in denying Herrera's motion to withdraw his plea. 2. **Restitution Order**: Herrera's second and third propositions focused on the restitution order, arguing that the trial court did not have sufficient proof of actual losses incurred by the victim and a bail bondsman, and that the bail bondsman should not be considered a victim under Oklahoma restitution laws. However, these propositions became moot due to the decision on the plea validity. Ultimately, the Oklahoma Court of Criminal Appeals reversed the trial court's denial of Herrera's Motion to Withdraw Guilty Plea and remanded the case for further proceedings. This ruling emphasized the importance of ensuring a defendant's plea is made with full understanding and without coercion or misinformation. The judicial decision highlighted in the summary opinion grants Herrera relief, enabling him to withdraw his plea and possibly reassess the legal consequences and restitution implications of his case.

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M-2017-511

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**Court of Criminal Appeals of the State of Oklahoma** **Case: William Robert Burk vs. The State of Oklahoma** **Case No: M-2017-511** #### OPINION BY: Kuehn, VPJ **Background:** William Robert Burk was convicted of Obstruction of Public Officer in the District Court of Payne County, sentenced to 30 days in jail and fined $500. The case arose from an incident on December 13, 2015, where Burk was stopped for driving with an improper license tag. He refused to provide a driver's license, proof of insurance, or identify himself. Police officers were forced to break into his vehicle after he locked himself inside, leading to his arrest. **Proposition I: Self-Representation** Burk contends the trial court erred by allowing him to represent himself without ensuring he made a knowing and intelligent waiver of his right to counsel. The court finds that Burk effectively waived his right to counsel through his actions over time, including repeatedly refusing to secure legal representation. The court cites multiple precedents establishing that a defendant may waive the right to counsel by conduct, and emphasizes the need for a clear understanding of the risks involved in self-representation. While acknowledging Burk's claims of financial capacity to hire an attorney, he nevertheless insisted he would not apply for court-appointed counsel. The court concludes Burk’s behavior—self-characterization of being forced to represent himself and refusal to accept assistance—constituted an implied waiver of his right to counsel, allowing the trial to proceed without an attorney. **Proposition II: Sufficiency of Evidence** In his second claim, Burk argues the evidence was insufficient to support his conviction. However, the court finds that Burk's refusal to provide identification and engage with police clearly obstructed their duties. Citing relevant statutes and case law, the court asserts that any rational jury could find him guilty of obstructing a public officer based on his actions during the encounter. **Conclusion:** The court affirms the judgment and sentence from the District Court of Payne County, asserting that Burk had sufficient warnings about self-representation risks and willingly chose to proceed without counsel. ### Dissenting Opinion - Judge Lumpkin Judge Lumpkin argues against affirming the conviction, citing concerns about Burk's mental state and the trial court's failure to ensure he was adequately informed of the consequences of self-representation. He emphasizes that Burk was not given proper Fairtta warnings about the implications of his decision and suggests that mental health issues should have prompted the court to reevaluate Burk's right to counsel. ### Concurring Opinion - Judge Hudson Judge Hudson agrees with the outcome but asserts that the basis for the decision hinges not on waiver by conduct but rather on forfeiture of counsel due to Burk's dilatory misconduct. He highlights the necessity for courts to maintain order and efficiently administer justice, especially when faced with obstructionist behavior from defendants. **Decision: The Judgment is AFFIRMED.** For further details and full opinions, you may refer to [this PDF link](https://opinions.wirthlawoffice.com/wp-content/uploads/M-2017-511_1734779027.pdf).

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C-2018-1174

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### IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA **Case No. C-2018-1174** **OCT 31, 2019** **STEVEN JOSEPH BEATY, Petitioner, v. THE STATE OF OKLAHOMA, Respondent.** **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Steven Joseph Beaty entered guilty pleas to the following charges in the District Court of Grady County, Case No. CF-2018-115: **Count I** - Felony Domestic Assault and Battery, After Former Conviction of Two or More Felonies (21 O.S.Supp.2014, § 644 (C)); **Count II** - Misdemeanor Violation of Protective Order (22 O.S.Supp.2012, § 60.6); **Count III** - Obstructing An Officer (21 O.S.Supp.2015, § 540). The Honorable Kory Kirkland accepted the pleas on October 16, 2018. The sentences imposed included the following: **Count I** - ten (10) years imprisonment with the last seven (7) years suspended and a $500.00 fine; **Count II** - one year imprisonment and a $200.00 fine; **Count III** - one year imprisonment and a $100.00 fine, with all sentences served concurrently and additional requirements such as costs, victim compensation assessments, and referral to the Batterer's Intervention Program. On October 25, 2018, Petitioner filed a motion to withdraw his guilty pleas. After a hearing on November 13, 2018, Judge Kirkland denied the motion. Petitioner now appeals this denial and raises the following propositions of error: 1. The lack of a factual basis for the plea renders it involuntary due to not being served with the Protective Order. 2. The trial judge failed to consider Petitioner’s ability to pay the victim compensation fee. 3. Petitioner was denied effective assistance of counsel during both the plea hearing and at the plea withdrawal hearing. **Analysis:** After thorough review of the petitions, records, and transcripts, the court finds no abuse of discretion in denying the motion to withdraw the guilty plea. A plea is evaluated based on whether it was voluntary and intelligent, requiring the Petitioner to show it was entered inadvertently or without consideration. In his first two propositions, Petitioner alleges he should have been allowed to withdraw his plea due to inadequate factual basis and failure to inquire about ability to pay the compensation fee. However, these claims were not raised in the motion to withdraw nor in the certiorari petition, waiving their consideration on appeal. In Proposition III, relating to ineffective assistance of counsel at the withdrawal hearing, Petitioner has not shown a reasonable probability that such deficiencies would have altered the outcome. The court affirms that the plea was knowing, voluntary, and not coerced. The claim about the court’s failure to record considerations for the victim compensation assessment is acknowledged; thus, that part of the assessment is vacated, and the case is remanded for a hearing to address this requirement properly. **Conclusion:** The Petition for a Writ of Certiorari is **DENIED**. The Judgment of the District Court is **AFFIRMED**. The current victim compensation assessments are **VACATED**, and the case is **REMANDED TO THE DISTRICT COURT** to consider all necessary factors for assessment under 22 O.S.2011, § 142.18(A). **OPINION BY**: LUMPKIN, J. **CONCUR**: LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. **COUNSEL FOR DEFENSE AT THE PLEA HEARING**: Bill Smith, P.O. Box 926, Norman, OK 73070 **COUNSEL FOR PETITIONER ON APPEAL**: Danny Joseph, Oklahoma City, OK **COUNSEL FOR THE STATE**: Jason M. Hicks, District Attorney, Kara Bacon, Assistant District Attorney, Chickasha, OK. [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-1174_1734227971.pdf)

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F-2018-360

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In OCCA case No. F-2018-360, McNeary appealed his conviction for lewd acts with a child under 16. In an unpublished decision, the court decided to affirm the conviction. No one dissented. Goldy Romeo McNeary was found guilty by a jury for two counts of committing lewd acts with a child under 16 years old. The jury sentenced him to ten years in prison for each count, and these sentences were ordered to be served one after the other. The court also decided that McNeary must serve 85% of his sentence before he could be considered for parole. McNeary appealed his conviction, arguing several points. First, he claimed that the trial court wrongfully allowed evidence of other bad acts, which he said made his trial unfair. Second, he said that this evidence was more harmful than helpful, violating his right to a fair trial. Third, he argued that the trial court did not give the jury proper instructions about how to use this evidence. Fourth, he felt that the trial court was wrong to not allow him to present evidence about Speck Homes, where the acts took place. Lastly, he believed that when considering all the errors together, they warranted a new trial. For the first two points, the court looked at whether the admission of the other crimes evidence was an obvious mistake and if it affected McNeary’s rights. They concluded that even if there was a mistake, it did not change the outcome since there was clear evidence of his guilt. Thus, the evidence did not rise to the level of a serious error. For the third point, the judge had promised to give instructions about the other crimes evidence but failed to do so at the right time. However, since the judge provided some instructions later, the court found no harm was done to McNeary from this. On the fourth point about Speck Homes, the court reasoned that the evidence was not allowed mainly because it was not relevant and also tried to avoid bad effects such as confusion. The trial judge made a choice based on their understanding of the law, and the appellate court did not find it to be a mistake. Lastly, the court examined McNeary's claim that all the errors combined were enough to grant him a new trial. They determined that no significant individual errors had occurred that would justify this request. In conclusion, the court upheld the judgment and sentencing, affirming McNeary’s conviction without any dissent from the other judges involved.

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F-2018-349

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In OCCA case No. F-2018-349, John Albert Broomhall appealed his conviction for Assault and Battery with a Dangerous Weapon. In an unpublished decision, the court decided to affirm the conviction and sentence, but vacated the order of restitution and remanded the case for a restitution hearing. One judge dissented. Broomhall was found guilty by a jury, and he was sentenced to one year in jail and a fine of $5000. He raised several claims in his appeal. First, he argued that the State did not provide enough evidence to prove that he committed the crime, which involved using a baseball bat to hurt someone. The court found that the jury had enough evidence to believe he did commit the crime. Next, Broomhall claimed he acted in self-defense, but the court ruled that he did not meet the burden of proof needed to show that his actions were justified. He also accused the prosecutor of misconduct during the trial, but the court decided that nothing the prosecutor did affected the fairness of the trial. Broomhall argued that the jury was given incorrect instructions, but the court found the instructions were proper. He also believed that the trial court made a mistake in how it ordered restitution for the victim's losses. The court agreed that the restitution order was not done correctly and needed to be revisited. Broomhall claimed he had ineffective assistance from his attorney, but the court found no basis for this claim, stating that the actions of his counsel did not harm his case. Lastly, Broomhall contended that there were numerous errors that, together, made his trial unfair; however, the court concluded that the only issue needing correction was the restitution order. In summary, while the court upheld Broomhall's conviction, it sent the restitution issue back for further consideration.

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F-2018-302

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In OCCA case No. F-2018-302, Jorge R. Medina appealed his conviction for Lewd or Indecent Acts to a Child Under 16. In an unpublished decision, the court decided to affirm Medina's conviction and sentence. One judge dissented. The case involved Medina being found guilty by a jury of a serious crime against a young child. The court imposed a severe sentence of forty years imprisonment. Medina raised several arguments in his appeal, claiming he did not receive a fair trial due to prosecutorial misconduct, issues with his confession, introduction of evidence regarding his past behavior, and ineffective assistance of his attorney. First, Medina argued that the prosecutor made incorrect statements during the trial and suggested that the jury should assume certain things rather than find them to be true based on evidence. However, the court reviewed the prosecutor's comments and determined they did not misstate the law or unfairly influence the jury. Next, Medina claimed he did not fully understand his rights when he confessed, which should have meant that his confession was not valid. But the court found that Medina had waived this right and that the confession was given voluntarily after he understood his rights. Medina also contested the admission of evidence about his past bad acts. The court found that the prosecution had properly notified Medina of this evidence beforehand, so it was admissible. Regarding hearsay statements made by the victim, which were brought up as evidence at the trial, Medina’s team did not object to this during the trial. The court observed that since the defense had been aware of the basis for these statements and did not raise any objections, it affected their ability to contest them later. Moreover, Medina argued his attorney did not provide effective legal help because they did not object to issues during the trial. The court concluded that the alleged deficiencies of the attorney did not impact the outcome of the case due to the strength of the evidence against Medina. Finally, Medina claimed that the accumulation of errors throughout his trial added up to a denial of his rights. However, the court found that the trial did not have enough significant errors to justify this claim. In conclusion, the court upheld Medina's conviction and sentence, emphasizing that the errors he pointed out did not meet the threshold to alter the jury's decision.

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F-2018-915

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**Court of Criminal Appeals of the State of Oklahoma** **Case Summary: Trever Wayne Ford v. The State of Oklahoma** **Case No:** F-2018-915 **Filed:** October 13, 2019 **Summary:** Trever Wayne Ford was convicted of Assault and Battery by Means and Force Likely to Produce Death under 21 O.S.2011, § 652(C) in the District Court of Pontotoc County, Case No. CF-2017-20. Judge C. Steven Kessinger sentenced him to twenty-five years in prison. Ford appealed, arguing that his sentence was excessive. **Key Points:** 1. **Appellant's Argument**: Ford contends that his sentence is too harsh given the conflicting evidence about the incident, his injuries (possibly a concussion), lack of prior convictions, employment status, family responsibilities, and character in relation to this crime. 2. **Court’s Response**: The court reviewed the case and noted that the trial court had considered all the relevant information when imposing the sentence. The evidence indicated that Ford engaged in violent actions that caused severe injury to the victim. 3. **Conclusion**: The appellate court found that Ford's twenty-five-year sentence was within the statutory range and not excessive given the circumstances described. Consequently, the court affirmed the judgment and sentence. **Decision**: The judgment and sentence from the District Court of Pontotoc County are upheld. **Counsel Information**: - **For Appellant**: Shelley Levisay, Ricki J. Walterscheid, Carlos Henry. - **For Appellee**: Mike Hunter (Attorney General), Keeley L. Miller (Assistant Attorney General), Tara Portillo (Assistant District Attorney). **Judges**: Opinion delivered by Vice Presiding Judge Kuehn; Judges Lewis, Lumpkin, Hudson, and Rowland concurred. For the full decision, please refer to the provided [PDF link](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-915_1735118232.pdf).

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C-2018-1050

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This document appears to be a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding James Michael Simmons, who sought a writ of certiorari after pleading nolo contendere to a misdemeanor charge of making threats by electronic device. ### Key Points of the Summary Opinion: 1. **Case Information**: - **Petitioner**: James Michael Simmons. - **Respondent**: The State of Oklahoma. - **Case Number**: C-2018-1050. - **Trial Court**: Mayes County, Case No. CF-2017-350. 2. **Background**: - Simmons pled nolo contendere (no contest) to the charge and was granted deferred judgment for one year under probation conditions. - He later filed a motion to withdraw the plea, which the trial court denied. 3. **Propositions of Error**: - **Proposition 1**: Failure to use the uniform guilty plea form. - The court found no prejudice from the omission of the uniform form since the record was adequate for review. - **Proposition 2**: Claim of not understanding the plea’s consequences. - The court determined that the trial court provided sufficient advice regarding the plea's nature and consequences. - **Proposition 3**: Insufficient factual basis for the plea. - The court concluded there was a sufficient factual basis for the plea, affirming that the plea was entered correctly. - **Proposition 4**: Denial of effective assistance of counsel for both the plea and withdrawal process. - The court found no deficient performance by counsel or resulting prejudice. 4. **Decision**: - The petition for a writ of certiorari was denied, and the judgment and sentence were affirmed. 5. **Appearance**: - Various attorneys represented Simmons throughout the trial and appeal processes. ### Conclusion: The Court of Criminal Appeals ultimately affirmed the lower court's decision, finding no basis for reversing the judgment based on the claims presented by Simmons. The opinion indicates that procedural and substantive requirements were satisfactorily met during the plea process.

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M-2018-1055

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SADE DEANN McKNIGHT, Appellant,** **V.** **THE STATE OF OKLAHOMA, Appellee.** **Case No. M-2018-1055** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA OCT - 3 2019** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Sade Deann McKnight seeks to appeal her Judgment and Sentence from the District Court of Payne County, Case No. CM-2016-1491, for her misdemeanor convictions of Obstructing an Officer, 21 O.S.Supp.2015, § 540 (Count 1) and Resisting an Officer, 21 O.S.1991, § 268 (Count 2). The Honorable R.L. Hert, Special Judge, presided over the jury trial, where McKnight was sentenced to a $500.00 fine for Count 1 and six weeks confinement in the county jail along with a $500.00 fine for Count 2. **FACTS** On September 9, 2016, during severe weather, Appellant lost control of her vehicle on Interstate 35, resulting in a collision. Upon the Oklahoma Highway Patrol's arrival, Trooper Ryan Long found McKnight and her three small children in an ambulance nearby. Initially cooperative, McKnight became argumentative upon learning she would be ticketed for driving too fast for conditions. As tensions increased, McKnight attempted to leave the ambulance and re-enter her car despite Trooper Long's directives to stay. Following her non-compliance, Trooper Long attempted to escort her back, which led to her striking him and resisting arrest. Subsequently, she was charged with obstructing and resisting an officer. **ANALYSIS** 1. **Sufficiency of Evidence for Obstruction** Appellant argues that evidence was insufficient to support her conviction for obstruction. The jury instruction required proof that McKnight willfully obstructed an Oklahoma Highway Patrolman in the discharge of his duties. Long's testimony confirmed the nature of his duties and her non-compliance. Viewing the evidence favorably for the prosecution, we conclude a rational jury could find McKnight guilty beyond a reasonable doubt. 2. **Resisting Unlawful Arrest** McKnight contends her conviction for resisting an officer should be reversed due to an unlawful arrest. This argument, raised for the first time on appeal, is examined for plain error. However, because Long had probable cause to arrest McKnight for obstruction as evidenced by her behavior, the arrest was lawful, negating her claim. 3. **Excessiveness of Sentences** Finally, Appellant challenges the sentences as excessive. However, both sentences fall within statutory limits, and we find they do not shock the conscience. **DECISION** The Judgment and Sentence of the District Court is AFFIRMED. **MANDATE** Pursuant to Rule 3.15 of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon filing of this decision. --- **COUNSEL** **At Trial:** Stephen Cale, Tulsa, OK **On Appeal:** Ariel Parry, Norman, OK; Rodrigo Carrillo, Stillwater, OK **For the State:** Mike Hunter, Oklahoma City, OK **OPINION BY:** ROWLAND, J. **Concur:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J. (concur in results); HUDSON, J. [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/M-2018-1055_1734357754.pdf)

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S-2018-1227

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **THE STATE OF OKLAHOMA,** Appellant, **v.** **DAVID FLORES VILLANUEVA,** Appellee. **No. S-2018-1227** **NOT FOR PUBLICATION** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **SEP 26 2019** **JOHN D. HADDEN** **CLERK** --- **SUMMARY OPINION** LEWIS, PRESIDING JUDGE: On March 6, 2018, Defendant Villanueva was charged with one count of Burglary in the First Degree in Comanche County Case No. CF-2018-135. On November 7, 2018, a preliminary hearing was held before the Honorable Ken Harris, Special Judge. At that hearing, the State amended the information to include a charge of Conspiracy to Commit Burglary. Villanueva demurred to both charges; the demurrer to the burglary charge was overruled, while the conspiracy charge was granted. The State appealed this ruling under Rule 6.1 and 22 O.S.2011, § 1089.1. Judge Meaders, after reviewing the preliminary hearing transcript and hearing arguments from both sides, upheld the magistrate's decision. From this ruling, the State continued its appeal. The State's primary argument was that it was erroneous for the trial court to grant Villanueva's demurrer concerning the conspiracy charge. According to Rule 11.2(A)(4), this appeal was automatically assigned to the Accelerated Docket. The analysis considers whether there was sufficient evidence, viewed favorably towards the State, to find that a felony crime occurred and that Villanueva likely committed it. The Court must uphold the magistrate's ruling unless there was an abuse of discretion. The Court determined that no such abuse of discretion occurred in this instance. The decision to grant the demurrer concerning the conspiracy charge was not clearly erroneous or illogical based on the evidence presented. **DECISION** The order dismissing the conspiracy charge against Villanueva in Comanche County District Court Case No. CF-2018-135 is AFFIRMED. A MANDATE is ORDERED issued upon the delivery and filing of this decision, in accordance with Rule 3.15. --- **APPEARANCES AT TRIAL** **COUNSEL FOR STATE/APPELLANT** Kyle Cabelka, Assistant District Attorney Comanche County **COUNSEL FOR DEFENDANT/APPELLEE** Clay Hillis Lawton, OK --- **OPINION BY:** LEWIS, P.J. **CONCUR:** KUEHN, V.P.J.; LUMPKIN, J. **DISSENT:** HUDSON, J.; ROWLAND, J. --- **DISSENTING OPINION OF HUDSON, J.:** I align with Judge Rowland's dissent and wish to emphasize that the magistrate's decision did not adhere to the proper legal standard, which mandates that at a preliminary hearing, the State is not obliged to present evidence that would suffice for a conviction; rather, the standard is to establish probable cause. The preliminaries focus on whether there is enough evidence for a reasonable person to conclude that an agreement to commit a crime existed among the suspects. Based on the testimony, when two armed men and a female accomplice invade a home, demanding money while brandishing weapons, the magistrate should have inferred an agreement had taken place, viewing the facts favorably for the State. The evidential threshold should reflect that significant circumstantial evidence can imply conspiracy. My view is that the magistrate abused discretion by ruling there was insufficient evidence for conspiracy at the hearing's conclusion. The facts supporting the charge should have warranted a finding of probable cause as a reasonable inference could be drawn affirming an agreement among the accused parties. The ruling lacks justification against existing legal precedents. The magistrate's interpretation of the circumstances failed to consider the appropriate evidential standard and should be revised. I am authorized to state that Judge Hudson concurs with this dissent. --- For the official full text, [click here to download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/S-2018-1227_1734274980.pdf).

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RE-2018-348

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

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F-2018-964

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

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F-2018-616

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

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F-2018-542

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In OCCA case No. F-2018-542, Charles Henry Tarver, Jr. appealed his conviction for Possession of Controlled Dangerous Substance with Intent to Distribute and Unlawful Possession of Drug Paraphernalia. In an unpublished decision, the court decided that relief was required, and the case was remanded to the district court with instructions to dismiss. One judge dissented. Charles Henry Tarver, Jr. was tried by a jury and convicted of having illegal drugs with the intent to sell them and for having drug paraphernalia. He was given a long prison sentence and a fine. Tarver appealed this decision because he believed that the evidence used against him was obtained illegally when a police officer stopped him for a minor traffic violation. The events leading to Tarver's arrest happened on May 23, 2016. A deputy police officer stopped Tarver because the light on his truck’s license plate wasn’t working. During this stop, the officer noticed that Tarver was very anxious and had trouble staying still. Instead of quickly giving him a ticket and letting him go, the officer waited for backup and a dog trained to detect drugs. While waiting, the officer searched Tarver's truck, finding illegal drugs. Tarver argued that this search was not allowed under the law because it happened without enough reason to keep him there longer than necessary for the traffic stop. Initially, the judge at Tarver’s trial ruled that the stop was legal, but he did not consider whether the stop went on too long without proper reasons. This was an important mistake because the law says that once the reason for a stop is handled, the police cannot keep someone for longer without having a good reason to think that person is doing something illegal. The appeals court reviewed the case and found that the trial judge had incorrectly placed the burden of proving that the police action was legal on Tarver instead of where it should have been on the state. The appeals court agreed that the stop was carried out longer than necessary, and the police officer did not have enough solid reasons to justify keeping Tarver there longer than the original traffic issue. The court decided to reverse Tarver's convictions and told the district court to dismiss the charges against him because the search that found the drugs was not properly justified. One judge disagreed with this outcome, arguing that the police acted reasonably based on their experiences and knowledge about Tarver. This dissenting opinion held that the evidence might still be good enough to uphold the conviction. In the end, the decision meant that Tarver would not have to serve time for these charges, as the evidence against him was deemed to have been collected improperly.

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F-2018-36

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

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F-2018-867

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

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F-2018-749

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

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F-2018-401

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

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F-2017-1019

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

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F-2018-565

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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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F-2018-358

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In OCCA case No. F-2018-358, Sean Daniel Simmons appealed his conviction for domestic abuse by strangulation. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Sean Daniel Simmons was found guilty by a jury for hurting his girlfriend on three occasions during a long argument at their apartment. The girlfriend's twelve-year-old son was in a nearby room sleeping at the time. The girlfriend testified that he choked her until she lost consciousness three times. Once, when he called 911, he slapped her when she tried to take the phone. After the incidents, she sought medical help and was diagnosed with a throat injury, although there were no visible marks on her throat, and she didn’t suffer any serious long-term effects. Simmons argued in his first claim that the evidence against him was not enough to support the conviction. The court reviewed the evidence and decided that it was reasonable for the jury to find him guilty beyond a reasonable doubt for domestic abuse by strangulation. In his second claim, Simmons believed the trial court should have explained what “great bodily harm” meant to the jury. He wanted a clear definition because he felt the term was too vague. However, the trial court used standard jury instructions that explained the elements of the crime, including how strangulation was defined. Ultimately, the court held that the trial court did not make a mistake when it refused to define “great bodily harm” more specifically. The decision to not elaborate on this term was appropriate, as the standard instructions already provided enough information to the jury for them to make an informed decision. The judgment was affirmed, and the judges agreed that the trial court acted correctly in these matters.

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F-2018-309

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

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