Oklahoma Court of Criminal Appeals | 2024
Decisions
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:
- The State’s evidence was insufficient to prove the violation of the Oklahoma Corrupt Organization Prevention Act;
- 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;
- 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;
- The district court committed error when it erroneously admitted multiple pieces of evidence that were substantially more prejudicial than probative;
- 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;
- The State’s evidence was insufficient to prove conspiracy to commit racketeering;
- The district court abused its discretion when it denied defense counsel’s request for the lesser related offense instruction of gang-related activity;
- 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;
- Mr. Jackson’s sentence is excessive;
- 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
- 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:
- 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.