Oklahoma Court of Criminal Appeals | 2024

May 2, 2024

Decisions

CASH v. STATE
2024 OK CR 17
Case Number: RE-2022-638
Decided: 06/28/2024

¶1 On January 25, 2024, this Court issued a summary opinion in Case No. RE-2022-638 affirming the revocation of Appellant’s suspended sentence in Cleveland County District Court Case No. CF-2014-1824. See Cash v. State, 2024 OK CR 1, 543 P.3d 687.Paragraph 15 of that summary opinion erroneously states “declarant” but should state “defendant.”

¶2 Paragraph 15 of this Court’s January 25, 2024, summary opinion in Case No. RE-2022-638 is CORRECTED to reflect “defendant.”

THOMAS v. STATE
2024 OK CR 15
Case Number: C-2023-725
Decided: 05/30/2024

¶1 Donald Wayne Thomas, Jr., Petitioner, pled guilty to unauthorized use of a motor vehicle, in violation of 47 O.S.2021, § 4-102, in the District Court of Oklahoma County, Case No. CF-2022-4725. The Honorable Jason Glidewell, Special Judge, accepted the plea and assessed punishment of four years imprisonment, suspended. Petitioner filed a written request to withdraw the plea, which the trial court denied. Petitioner seeks the writ of certiorari.

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DECISION
¶15 The writ of certiorari is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

CAUDLE v. STATE
2024 OK CR 14
Case Number: F-2022-414
Decided: 05/30/2024

¶1 Appellant Joshua Troy Caudle appeals his Judgment and Sentence from the District Court of Okmulgee County, Case No. CF-2018-87, for Lewd or Indecent Proposals to a Child Under 16, in violation of 21 O.S.Supp.2017, § 1123(A)(1). The Honorable Lawrence W. Parish, District Judge, presided over Caudle’s jury trial and sentenced him, in accordance with the jury’s verdict, to three years imprisonment. Caudle raises one issue for review:
(1) whether the district court erred by overruling his demurrer.
¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

[1] Under 21 O.S.Supp.2015, § 13.1, Caudle must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.

DOMINGUEZ v. STATE
2024 OK CR 13
Case Number: RE-2023-80
Decided: 05/23/2024

¶1  Appellant appeals from the revocation of his suspended sentence in Case No. CF-2018-122 in the District Court of Custer County, by the Honorable Donna L. Dirickson, Associate District Judge. On August 17, 2018, Appellant pled guilty to Domestic Assault and Battery by Strangulation, in violation of 21 O.S.Supp.2014, § 644(J), and was sentenced to a three year deferred sentence. On May 24, 2019, the State filed an Application to Accelerate Deferred Judgment alleging Appellant violated the terms and conditions of his probation by failing to pay probation fees, to complete the Batterer’s Intervention Program, to report as directed, and to appear for urinalysis testing. On December 12, 2019, Appellant entered a plea of guilty to the State’s Application to Accelerate Deferred Judgment and was sentenced to three years incarceration with all suspended except one weekend in county jail.  On November 30, 2020, the State filed an Application to Revoke Suspended Sentence alleging Appellant violated the terms and conditions of his probation by failing to complete the Batterer’s Intervention Program and to pay DA supervision fees. Following a revocation hearing on January 19, 2023, Judge Dirickson revoked the remaining two years and three hundred sixty-three days of Appellant’s suspended sentence in full. Appellant appeals, raising a single proposition of error:

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING MR. DOMINGUEZ IN FULL FOR TECHNICAL VIOLATIONS.

        ¶2  Appellant did not raise this objection below and therefore review is for plain error. Parker v. State, 2021 OK CR 17, ¶ 16, 495 P.3d 653, 660. As set forth in Simpson v. State, 1994 OK CR 40, ¶¶ 2, 11, 23, 30, 876 P.2d 690, 694-95, 698-99, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id., 1994 OK CR 40, ¶ 30, 876 P.2d at 701.

¶3  “A suspended sentence is a matter of grace.” Demry v. State, 1999 OK CR 31, ¶ 12, 986 P.2d 1145, 1147. As such, the State must only prove one violation of probation in order to revoke Appellant’s suspended sentence in full. Tilden v. State, 2013 OK CR 10, ¶ 10, 306 P.3d 554, 557 (citing McQueen v. State, 1987 OK CR 162, ¶ 2, 740 P.2d 744, 745).  The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. An “abuse of discretion” is a clearly erroneous conclusion and judgment, one clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. 

¶4  In his sole proposition, Appellant argues the trial court abused its discretion by revoking Appellant’s suspended sentence in full based on “technical violations” and maintains the revocation order should be modified. At the revocation hearing the trial court determined Appellant failed to complete the Batterer’s Intervention Program (BIP) and failed to pay DA supervision fees.  The State must only show by a preponderance of the evidence that a violation has occurred to revoke a suspended sentence.  See Tilden, 2013 OK CR 10, ¶ 5, 306 P.3d at 556.  Appellant does not argue that there was insufficient evidence presented for the trial court to conclude, by a preponderance of the evidence, that Appellant violated the terms and conditions of his probation.  Instead, Appellant argues that it was an abuse of discretion for the trial court to revoke his suspended sentence in full since this was his first revocation, and the violations were technical.   

        ¶5  There are two statutes at issue in this case. Section 991b of Title 22 is a general statute which provides for suspension of sentences and revocation of suspended sentences for probation violations. See 22 O.S.Supp.2019, § 991b(A).  Section 991b(B) limits the amount of a suspended sentence which may be revoked based upon a technical violation. Section 991b(C) defines non-technical violations of rules of probation. Any violation not set out in this section is a technical violation and deserves a lesser revocation, i.e., not exceeding six months for a first revocation and five years for a second or subsequent revocation. Id., at § 991b(B).

        ¶6  Section 644(G) of Title 21 is a specific statutory provision which provides that in domestic abuse cases the trial court shall “order as a condition of a suspended or deferred sentence that a defendant participate in counseling or undergo treatment to bring about the cessation of domestic abuse . . . [.]” 21 O.S.Supp.2019, § 644(G)(1). In Section 644(G)(5), if the court finds the defendant is not attending the court-ordered domestic abuse counseling or treatment or is not in compliance with any requirements of that treatment, “[t]he court may revoke all or any part of a suspended sentence, deferred sentence, or probation pursuant to Section 991b of Title 22 of the Oklahoma Statutes and subject the defendant to any or all remaining portions of the original sentence[.]” (emphasis added). Thus, the two statutes seem to be in conflict regarding revocation of suspended sentences in domestic violence cases.

It is a classic rule of statutory construction that statutes are to be construed to determine, if possible, the intent of the Legislature, Ritchie v. Raines, 374 P.2d 772, 775 (Okl.Cr.App.1962), reconciling provisions, rendering them consistent and giving intelligent effect to each. State v. Ramsey, 868 P.2d 709, 711 (Okl.Cr.App.1993). When there is a conflict between various statutes applying to the same situation, the more specific of the two governs. Stiles v. State, 829 P.2d 984, 989 (Okl.Cr.App.1992); Bowman v. State, 789 P.2d 631, 632 (Okl.Cr.App.1990). This is so even if the general statute was enacted later than the specific one. State v. Woodward, 737 P.2d 569, 570–71 (Okl.Cr.App.1987).

Lozoya v. State, 1996 OK CR 55, ¶ 17, 932 P.2d 22, 28–29.

        ¶7  Under the above analysis, it is clear that Section 644 is a specific statute enacted by the Legislature to govern domestic abuse cases and punishment thereof, as well as to mandate court-ordered domestic violence counseling. The intent of the Legislature in enacting these specific domestic violence provisions is to ensure appropriate punishments for these crimes, including specific counseling for offenders. Such crimes affect the entire family, not just the abused victim. The reference in Section 644(G)(5) to the general statutory Section 991b is only to provide authority for a trial court to revoke the suspended sentence at all. It is not referenced to override the specific provisions of Section 644(G)(5) governing how much of the domestic violence sentence can be revoked.

        ¶8  Reading the two statutes together to give effect to the Legislature’s intent and to render them consistent with each other, Section 644, the specific statute, controls the revocation of suspended sentences in domestic violence crimes. The trial court did not abuse its discretion in revoking Appellant’s suspended sentence in full. Accordingly, Appellant’s sole proposition of error is denied.

DECISION

¶9  The revocation of Appellant’s suspended sentence in Custer County District Court Case No. CF-2018-122 is AFFIRMED.  Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024), the MANDATE is ORDERED issued upon the filing of this decision.

SWAGER v. STATE
2024 OK CR 12
Case Number: F-2022-620
Decided: 05/02/2024

¶1 Appellant, Kevin Swager, was tried and convicted by a jury in the District Court of Delaware County, Case No. CF-2021-92, of Count 1: Child Sexual Abuse — Victim Under Twelve (Rape in the First Degree by Instrumentation), in violation of 21 O.S.Supp.2019, § 843.5; and Count 2: Child Sexual Abuse — Victim Under Twelve (Lewd Molestation), in violation of 21 O.S.Supp.2019, § 843.5. The jury sentenced Swager to twenty-five years imprisonment on each of the two counts.

¶2 The Honorable Barry V. Denny, District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury’s verdicts. Judge Denny ordered the sentences to run consecutively and suspended all but the first ten years of Appellant’s Count 2 sentence. The court further ordered credit for time served and imposed various costs and fees. Pursuant to Title 21 O.S.Supp.2015, § 13.1, Swager must serve 85% of his sentences before he is parole eligible.

¶3 Swager now appeals and raises two propositions of error before this Court: (1) his confession was involuntary, and its admission into evidence was error; and (2) the victim impact statement alleged harm from acts outside those charged and tainted the trial court’s punishment decision.

¶4 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED.

JACKSON v. STATE
2024 OK CR 11
Case Number: F-2021-485
Decided: 04/18/2024

¶1 Marcus Larod Jackson, Appellant, was tried by jury with co-defendant Juwan Square and found guilty of Count 1, racketeering, in violation of 22 O.S.2011, § 1403(A); Count 2, conspiracy to commit racketeering, in violation of 22 O.S.2011, § 1403(D); Counts 3 and 4, discharging a firearm into a dwelling, in violation of 21 O.S.2011, § 1289.17A; Count 5, assault and battery with a deadly weapon, in violation of 21 O.S.2011, § 652(C); Count 6, shooting with intent to kill, in violation of 21 O.S.2011, § 652(A); and Counts 7 and 8, possession of a firearm after former conviction of a felony, in violation of 21 O.S.Supp.2014, § 1283(A), in the District Court of Cleveland County, Case No. CF-2019-417. The jury found Counts 1 through 6 were committed after former conviction of two or more felonies, and Counts 7 and 8 were committed after former conviction of a felony; and assessed punishment of sixty years in each count. The Honorable Michael D. Tupper, District Judge, pronounced judgment and ordered the sentences to be served concurrently.1 Mr. Jackson appeals in the following propositions of error:

  1. The State’s evidence was insufficient to prove the violation of the Oklahoma Corrupt Organization Prevention Act;
  2. The district court erred when it gave the incorrect instruction pertaining to the range of punishment for all of the counts in violation of the Fourteenth Amendment to the United States Constitution;
  3. The district court abused its discretion when it sentenced Mr. Jackson to Counts 5 and 6 in addition to Count 7 because the allegations arose out of the same transaction in violation of Title 21, section 11 of the Oklahoma Statutes;
  4. The district court committed error when it erroneously admitted multiple pieces of evidence that were substantially more prejudicial than probative;
  5. Multiple instances of hearsay were admitted in violation of the Oklahoma Evidence Code and the Confrontation Clause of the Sixth Amendment to the United States Constitution;
  6. The State’s evidence was insufficient to prove conspiracy to commit racketeering;
  7. The district court abused its discretion when it denied defense counsel’s request for the lesser related offense instruction of gang-related activity;
  8. Mr. Jackson was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution;
  9. Mr. Jackson’s sentence is excessive;
  10. The accumulation of error in this case deprived Mr. Jackson of due process of law and a reliable sentencing proceeding in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, § 7 and 9 of the Oklahoma Constitution; and
  11. This Court should remand Mr. Jackson’s case to the district court with instructions to correct his judgment and sentence to reflect the appropriate conviction in Count 2 by an order nunc pro tunc.

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Prohibited Acts – Venue
DECISION
¶37 The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024), the MANDATE is ORDERED issued upon delivery and filing of this decision.

POSEY v. STATE
2024 OK CR 10
Case Number: D-2019-542
Decided: 04/18/2024

¶1 Appellant Derek Don Posey appeals his Judgment and Sentence from the District Court of Canadian County, Case No. CF-2013-463, for his First Degree Murder convictions and death sentences for the deaths of Amy Gibbins (Counts 1 and/or 2) and her son, Bryor Gibbins (Counts 3 and/or 4), in violation of 21 O.S.Supp.2012, § 701.7.1 Posey’s jury fixed punishment at death for both murder convictions after finding the same three aggravating circumstances as to each victim, namely: (1) that Posey knowingly created a great risk of death to more than one person;2 (2) that the murders were especially heinous, atrocious, or cruel;3 and (3) that there existed a probability that Posey would commit criminal acts of violence that would constitute a continuing threat to society.4 The Honorable Bob W. Hughey, Associate District Judge, presided over Posey’s jury trial and sentenced him to death for each murder pursuant to the jury’s verdicts, with all sentences to be served concurrently.5 Posey raises eleven claims for review; however, no claim warrants relief. We affirm Posey’s Judgment and Sentence.

WASHBURNE v. STATE
2024 OK CR 9
Case Number: F-2022-787
Decided: 04/11/2024

¶1 Appellant, Micky Todd Washburne, appeals his Judgment and Sentence from the District Court of Washington County, Case No. CF-2021-261, for Lewd or Indecent Proposals to a Child Under 16, in violation of 21 O.S.Supp.2018, § 1123(A)(1).

¶2 The Honorable Linda Thomas, District Judge, presided over Washburne’s jury trial. The jury found Appellant guilty and assessed punishment of five (5) years imprisonment and a five thousand dollar ($5,000.00) fine.1 The trial court sentenced Appellant in accordance with the jury’s verdict and granted credit for time served. Appellant appeals his judgment and sentence and raises the following issues:

I. whether the trial court erred in instructing the jury that its sentence was merely a recommendation;

II. whether the trial court committed plain error when it instructed the jury that Appellant’s alleged crime was subject to the 85% Rule;

III. whether the trial court erred in refusing Appellant’s request for a mistrial after the State’s Brady violation was revealed;

IV. whether trial counsel rendered ineffective assistance when she failed to examine Officer Williams regarding his relationship with Appellant and his prior relationship with the Appellant’s girlfriend; and

V. whether the Judgment and Sentence entered by the trial court inaccurately states that Appellant entered a plea of guilty when he was tried by a jury, and it should be corrected nunc pro tunc.

¶3 We affirm the Judgment and Sentence of the district court.

MCCAULEY v. STATE
2024 OK CR 8
Case Number: F-2022-208
Decided: 04/04/2024

¶1 Appellant, Dakoda Aaron McCauley, was tried and convicted by a jury in the District Court of Osage County, Case No. CF-2018-135, of Manslaughter in the First Degree (Heat of Passion), in violation of 21 O.S.2011, § 711.1 The jury sentenced McCauley to twenty-two years imprisonment. The Honorable Burl O. Estes, Associate District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury’s verdict.

¶2 McCauley now appeals and alleges four propositions of error.2 After careful review, we reject these claims and affirm McCauley’s judgment and sentence.

HALIBURTON v. STATE
2024 OK CR 7
Case Number: F-2022-367
Decided: 03/21/2024

¶1  Appellant, Charles Haliburton, appeals his Judgment and Sentence from the District Court of Comanche County, Case No. CF-2018-355, for Lewd or Indecent Acts to a Child Under 16 in violation of 21 O.S.Supp.2017, § 1123(A)(2).

¶2  The Honorable Gerald F. Neuwirth, District Judge, presided over Haliburton’s jury trial. The jury found Appellant guilty and assessed punishment of ten (10) years imprisonment. The trial court sentenced the defendant in accordance with the jury’s verdict and ordered three (3) years of post-imprisonment supervision.[1] Haliburton was granted an appeal out of time on April 8, 2022, in Case No. PC-2022-2965. Haliburton appeals his Judgment and Sentence and raises the following issue:

  1. whether after the State failed to establish the elements of the charged offense at preliminary hearing, counsel’s failure to file a motion to quash constituted ineffective assistance.

¶3  We affirm the Judgment and Sentence of the district court.

IN RE ADOPTION OF THE 2024 REVISIONS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)
2024 OK CR 6
Case Number: CCAD-2024-3
Decided: 03/06/2024

¶1 On January 24, 2024, the Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Criminal Jury Instructions submitted its report and recommendations to the Court for adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition) (OUJI-CR (2d)). The Court has reviewed the report and recommendations by the committee for the adoption of the proposed 2024 revisions to the Uniform Jury Instructions. Pursuant to 12 O.S.2021, § 577.1, the Court accepts that report and finds the revisions should be adopted.

IN RE ADOPTION OF THE 2024 REVISIONS TO THE OKLAHOMA JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)
2024 OK CR 5
Case Number: CCAD-2024-2
Decided: 03/06/2024

ORDER VACATING AND WITHDRAWING PREVIOUS
ORDER ADOPTING AMENDMENTS TO OKLAHOMA
UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)

Based on the Court’s further amendments to the Oklahoma Uniform Jury Instructions-Criminal (Second Edition) (OUJI-CR(2d)), the previous order adopting amendments is VACATED. The order issued in In Re Adoption of OUJI-CR(2d) (2024 Supp.), 2024 OK CR 2, is WITHDRAWN. The Court will issue a separate order adopting amendments to OUJI-CR(2d).

IT IS SO ORDERED.

STATE v. FULLER
2024 OK CR 4
Case Number: S-2023-409
Decided: 03/07/2024

¶1 The State of Oklahoma appeals the order of the reviewing judge affirming an adverse ruling of the magistrate dismissing the criminal charges in Ottawa County District Court Case No. CF-2022-215 for lack of jurisdiction. See 22 O.S.2011, §§ 1089.1–1089.7; Rule 6.1, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024).

STATE v. BRADFORD
2024 OK CR 3
Case Number: S-2023-720
Decided: 03/07/2024

¶1 The State charged Appellee, Darren D. Bradford, in the District Court of Bryan County, Case No. CF-2022-206, with Murder in the Second Degree, in violation of 21 O.S.2021, § 701.8, or in the alternative, either Manslaughter in the First Degree, death caused by a person engaged in a misdemeanor, in violation of 21 O.S.2021, § 711(1), or Manslaughter in the First Degree, heat of passion, in violation of 21 O.S.2021, § 711(2).

¶2 Appellee filed a motion for immunity and request for hearing pursuant to 21 O.S.2021, § 1289.25(F)1 on the day of his preliminary hearing.2 Appellee also filed a motion to quash after being bound over for trial at preliminary hearing. Both matters came on for hearing before the Honorable Abby C. Rogers, Associate District Judge. After incorporating the transcript and exhibits from the preliminary hearing and the presentation of evidence, Judge Rogers found Appellee was entitled to immunity and granted Appellee’s motion to quash. It is from this order the State appeals raising the following two propositions of error:

I. whether the trial court committed error in an abuse of discretion in finding that the Appellee seeking pre-trial immunity proved by a preponderance of the evidence that his use of deadly force was legally justified; and

II. whether, in granting the motion to quash, the trial court committed error in determining that the preliminary hearing magistrate improperly found probable cause to hold the Appellee for trial.

¶3 We affirm the trial court’s order finding immunity pursuant to Title 21, Section 1289.25(F).3

CASH v. STATE
2024 OK CR 1
Case Number: RE-2022-638
Decided: 01/25/2024

¶1 Appellant, Steven James Cash, appeals the revocation of his suspended sentence in Cleveland County District Court Case No. CF-2014-1824. On April 5, 2015, Appellant entered pleas of guilty to Second Degree Rape (21 O.S.2011, § 1116) (Count 1) and Rape by Instrumentation (21 O.S.2011, § 1111.1) (Count 2).1 He was sentenced to concurrent terms of fifteen years imprisonment, all suspended but two years.

¶2 On February 24, 2017, the State filed an Application to Revoke Suspended Sentence alleging failure to report, remain in the State, and pay 991 costs as ordered.2 On July 5, 2022, the State filed an amended application which added the new crime violation of “Rape/Sexual Assault”, as alleged in Garland County, Arkansas, Case No. 26F-2017-523-1.

¶3 Following a hearing, the Honorable Lori Walkley, District Judge, found the technical violation of failure to remain in State and the non-technical violations of failure to report and committing a new crime. Appellant’s suspended sentences were revoked in full.3 From this order, Appellant appeals raising five propositions of error.

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DECISION

¶19 The revocation order in Cleveland County District Court Case No. CF-2014-1824 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024), the MANDATE is ORDERED issued upon the filing of this decision.

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