Trustworthiness

RE-2018-1217

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DEXTER JEROME BIGLOW,** Appellant, **V.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2018-1217** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA DEC 19 2019** **JOHN D. HADDEN CLERK** **SUMMARY OPINION** KUEHN, VICE-PRESIDING JUDGE: Appellant Dexter Jerome Biglow appeals from the revocation of his suspended sentences in Oklahoma County District Court Case No. CF-2017-3262. On February 14, 2018, Appellant entered negotiated guilty pleas to Aggravated Attempting to Elude and Possession of a Controlled Dangerous Substance (marijuana). He was sentenced to five years of imprisonment on the eluding count and to one year of incarceration on the drug charge, to be served concurrently, with both sentences suspended. On November 6, 2018, the State filed an application to revoke the suspended sentences, alleging that Appellant had committed the new crimes of domestic abuse by strangulation and domestic abuse resulting in great bodily injury. A hearing on the application to revoke was held on November 27, 2018, before the Honorable Ray C. Elliott, District Judge, who granted the State's application and revoked Appellant's suspended sentences in full. On appeal, Appellant contends that the State failed to present sufficient evidence to prove the allegations contained in the application to revoke. We respectfully disagree. **ANALYSIS** At a revocation hearing, the focus is whether the terms of the suspension order have been violated, with the standard of proof being a preponderance of the evidence. The trial court's decision should not be overturned unless there is a clear abuse of discretion. In this case, both Officers Taylor and Mueggenborg testified at the hearing, having individually interviewed the alleged victim of the domestic abuse. The judge found their testimony had substantial guarantees of trustworthiness, which allowed the court to consider the victim's out-of-court statements. Notably, while the testimony was contradictory, the court did not abuse its discretion by finding the State adequately proved its case for revocation. The credibility of witnesses is a matter for the trial court, which may choose to believe or disbelieve any witness. **DECISION** The order of the District Court of Oklahoma County revoking Appellant's suspended judgments and sentences in Case No. CF-2017-3262 is therefore AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon delivery and filing of this decision. **APPEARANCES:** Thomas P. Hurley - Assistant Public Defender Marva A. Banks - Assistant Public Defender Danielle Connolly - Assistant District Attorney Mike Hunter - Oklahoma Attorney General Tessa L. Henry - Assistant Attorney General **OPINION BY:** KUEHN, V.P.J.: LEVIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR

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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-2018-973

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In the case of Brian Scott Willess v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed an appeal concerning the acceleration of Willess' deferred sentence for the crime of Stalking. The appeal was brought forth after the District Court of Cleveland County, under Judge Thad Balkman, found that Willess had violated the terms of his probation by not taking mandated mental health medication and committing a new stalking offense. **Background:** - On May 23, 2018, Willess entered a no contest plea to stalking, with sentencing deferred for five years, under probation terms. - The State later filed an Application to Accelerate Judgment, alleging violations of probation terms. A hearing was held on September 5, 2018, leading to the acceleration of Willess' sentence to five years imprisonment. **Propositions of Error:** Willess raised multiple arguments in his appeal: 1. **Ineffective Assistance of Counsel**: Claimed his counsel failed to argue for credit for time served prior to his plea. 2. **Jurisdiction Issues**: Argued that the district court lacked jurisdiction because there was no preliminary hearing held. 3. **Insufficient Evidence**: Contended that the State did not provide adequate evidence to prove a violation of probation terms. 4. **Due Process Concerns**: Suggested that he was not given adequate notice of the allegations against him and that hearsay evidence was improperly considered. 5. **Premature Acceleration**: Argued that the court should have considered intermediate sanctions instead of incarceration. **Court Opinion:** - The court affirmed the acceleration of Willess' deferred sentence, stating that the issues raised about ineffective counsel and jurisdiction were not valid in an acceleration appeal context. Proper processes for addressing these claims require filing a writ of certiorari. - On the sufficiency of evidence claim, the court found that the State had met its burden of proving violations by a preponderance of evidence, and the hearsay evidence presented had sufficient reliability. - Regarding due process, the court held that Willess had been duly notified of the allegations against him, and his hearsay concerns were addressed previously. - Finally, the court reiterated that even a single violation of probation conditions could warrant acceleration of the sentence, which was upheld in this case. The court's decision highlighted that procedural safeguards were followed and determined there was no abuse of discretion by the district court in accelerating Willess' sentence. In conclusion, the Oklahoma Court of Criminal Appeals ruled in favor of the State, affirming Willess' five-year sentence for the violations of probation.

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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-2018-595

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **GARRET TAYLOR MANKIN,** Appellant, Case No. F-2018-595 **v.** **STATE OF OKLAHOMA,** Appellee. --- **FILED IN COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA, JUL 11 2019** John D. Hadden, Clerk --- ### SUMMARY OPINION **HUDSON, JUDGE:** **Background:** Garret Taylor Mankin was tried and convicted in a nonjury trial in Pontotoc County District Court (Case No. CF-2015-347) for two counts of Lewd Acts with a Child Under Twelve (Counts 1 and 3), violating 21 O.S.Supp.2013, § 1123(A)(2). He was sentenced to twenty-five years imprisonment for each count, with the last five years of both sentences suspended. Originally charged with eleven counts, the trial court dismissed the majority by agreement of the parties. Mankin must serve eighty-five percent of his sentence before being eligible for parole. **Propositions of Error:** Mankin raises two propositions of error concerning the trial court's admission of hearsay statements from the alleged victims, P.M. and F.Y. 1. **Admittance of P.M.'s Hearsay Statements:** Mankin argues that the hearsay statements made by P.M. were not inherently trustworthy. The court found that the statements were admissible under 12 O.S.Supp.2013, § 2803.1, which allows for the admission of hearsay statements made by children under twelve regarding sexual contact against them if deemed reliable. Upon review: - P.M. disclosed the inappropriate touching to both her mother and a forensic interviewer, with consistent elements in her accounts. - Merely due to the nature of her disclosure or the method of questioning, the statements remained trustworthy. - The court determined that there was no abuse of discretion in this ruling. 2. **Admittance of F.Y.'s Hearsay Statements:** Mankin contends that F.Y.’s statements were not spontaneous or consistent, arguing similar points regarding terminologies used and that they lacked reliability. Upon review: - F.Y. made statements on the same day she was seen being inappropriately touched. - The mother’s questioning was open-ended and not leading. - F.Y.'s use of child-appropriate language (referring to the genitalia as a fat leg) supported the statement’s reliability. - The trial court's decision to admit the statements was upheld due to sufficient indicia of reliability. **Outcome:** After thorough consideration of the entire record and the propositions raised, the Court found no error that warranted relief. The judgments and sentences imposed by the District Court were affirmed. **Concurrences:** - Lewis, P.J. - Kuehn, V.P.J. - Lumpkin, J. - Rowland, J. **Opinion Filed:** Hudson, J. **Note**: For further details, you can download the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-595_1735312387.pdf).

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F 2017-0031

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In OCCA case No. F 2017-0031, Heath Saxon Ford appealed his conviction for driving a motor vehicle while under the influence of alcohol and unauthorized use of a vehicle, both felonies. In a published decision, the court decided to reverse his termination from the Drug Court Program and remand the case for reinstatement into a Drug Court program, preferably in another county. No one dissented. Heath Saxon Ford was charged with multiple offenses in McCurtain County. He pleaded guilty to two of them and entered a Drug Court Program, agreeing to specific conditions. If he didn’t follow these conditions, he could be sentenced to twelve years in prison. The state wanted to kick him out of the Drug Court Program, saying he violated his agreement by having a bad drug test. At a hearing, a witness said something about the drug test results, but she didn’t perform the test herself nor was the actual test introduced as evidence. Ford argued that this was not fair and that they used hearsay, which is when someone talks about what another person said instead of providing direct evidence. The court agreed that the hearsay could not be the only reason for terminating Ford from the program and that they didn’t show strong enough evidence to prove he violated the terms. There were also concerns about how the Drug Court was being run, suggesting possible impropriety. Because of these issues, the court decided to reverse the decision to end Ford's participation in the Drug Court Program and ordered that he be reinstated, possibly in a different county's program.

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S-2014-812

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In OCCA case No. S-2014-812, the State of Oklahoma appealed the conviction of Adam Clayton Zilm for Sexual Abuse of a Minor. In an unpublished decision, the court decided to affirm the ruling of the District Court that suppressed certain child hearsay statements. One judge dissented. The case started when Adam Clayton Zilm was charged with sexually abusing a minor in Tulsa County. Before the trial began, there was a hearing to determine if the statements made by the child victim, K.A., could be used as evidence in the trial. During this Reliability Hearing, the child made statements to a forensic interviewer and a neighbor about the alleged abuse. However, K.A. later testified that she had not been abused and said she had been influenced to make claims about the abuse. The State argued that the trial court was wrong to suppress the child’s statements because they believed the statements should have been allowed to support the case against Zilm. The court had to decide if these hearsay statements were trustworthy to be presented at trial. According to Oklahoma law, a child’s hearsay statements can be used if the court finds them to be reliable based on several factors. The trial court decided that K.A.'s statements to the forensic interviewer and neighbor were not reliable enough. They allowed K.A. to give her testimony because it was necessary to determine if her earlier statements could be trusted. The court found inconsistencies in her testimony compared to her earlier claims, which made the hearsay statements questionable. The appellate court upheld the trial court's decision, stating that they did not abuse their discretion by suppressing the hearsay statements from the child victim. They believed the trial court made the right choice by considering the total context around the statements. Meanwhile, one judge disagreed. This judge felt that the earlier statements made by K.A. should still be considered admissible. They argued that the trial court focused too much on K.A.'s later testimony, which could have been influenced and not truly reflected what had happened earlier. Overall, the court decided that the suppression of the hearsay evidence was appropriate, allowing the earlier ruling to stand and ensuring that K.A.'s inconsistent statements were not used in the trial against Adam Clayton Zilm.

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F 2006-443

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In OCCA case No. F 2006-443, Bill Neal Robison, II, appealed his conviction for causing an accident involving great bodily injury while driving under the influence of alcohol. In a published decision, the court decided to reverse the conviction and remand the case for a new trial. A judge dissented. Robison was found guilty in a trial that took place in Oklahoma County. The jury decided he should serve five years in prison and pay a fine of $5000. He appealed on two main points. First, he argued that the results of a blood test from the hospital should not have been used against him in court. Second, he claimed that his lawyer did not represent him properly. The court looked closely at Robison's first point and agreed that the blood test should not have been included as evidence. The test was done for medical reasons, and the court noted that it was not one of the specific tests approved for measuring alcohol levels under the law. The treating doctor testified that Robison's blood alcohol level was very high, but because the test did not follow the right rules, it could not be trusted as evidence in the trial. Since this test result was important for the case, the court could not ignore the mistake, which led them to reverse his conviction. They decided that Robison should have a new trial where this evidence would not be used against him. The second argument about the lawyer's performance was not needed since the court ordered a new trial. The final decision meant that Robison would go back to court for a fresh trial without the improper blood test evidence. The judges' opinions on the new trial varied, with one judge expressing disagreement with reversing the conviction based on the blood test's results.

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