Oklahoma Court of Criminal Appeals | 2024

December 10, 2024

Decisions

JIMENEZ v. STATE
2024 OK CR 33
Case Number: C-2023-951
Decided: 12/05/2024

SUMMARY OPINION DENYING CERTIORARI

HUDSON, JUDGE:

¶1 On January 9, 2023, Petitioner, Luis Jimenez, entered a semi-blind plea of no contest in the District Court of Texas County, Case No. CF-2022-12, to Count 6: First Degree Rape, in violation of 21 O.S.2011, § 1114.1 The Honorable Jon K. Parsley, District Judge, accepted Jimenez’s plea and continued sentencing pursuant to the parties’ plea agreement.

¶2 On March 22, 2023, the matter came on for sentencing. After hearing the victim’s prepared victim impact statement, and argument from both parties, Judge Parsley sentenced Jimenez to thirty-five years imprisonment, with all but the first twenty years suspended, plus a $1,000.00 fine. The trial court further imposed various costs and fees. Jimenez must serve 85% of his sentence before becoming eligible for parole consideration. 21 O.S.2011, § 13.1.

¶3 On March 30, 2023, Jimenez, through plea counsel, Nathan McCaffrey, filed a timely application to withdraw his plea.2 Conflict counsel, Ryan Loewenstern, subsequently entered an appearance and filed two supplemental briefs.3 At a hearing held on May 31, 2023, Judge Parsley took up the matter. At the conclusion of the hearing, the trial court denied Jimenez’s motion to withdraw.4

¶4 Jimenez now seeks a writ of certiorari raising two propositions of error each complaining of ineffective assistance of plea counsel. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and Jimenez’s brief, we find that no relief is required under the law and evidence. Petitioner’s Petition for Writ of Certiorari is DENIED.

STATE v. TANNEHILL
2024 OK CR 32
Case Number: S-2023-1045
Decided: 12/05/2024

SUMMARY OPINION

LUMPKIN, JUDGE:

¶1 Appellee, Melvin Dean Tannehill, was charged by Information in the District Court of Noble County, Case No. CF-2019-42, with the following: Count 1, Trafficking in Illegal Drugs, in violation of 63 O.S.Supp.2019, § 2-415; and Count 2, Conspiracy, in violation of 63 O.S.2011, 2-408. The charges resulted from a search of Appellee’s vehicle after a traffic stop. On March 9, 2020, the Honorable Jennifer Brock held a preliminary hearing where she bound Appellee over for trial.

¶2 Appellee filed a motion to suppress, which the Honorable Nikki Leach granted at a hearing held December 14, 2023. Judge Leach found “I think this case is outside the realm of Lewis [State v. Lewis, 2021 OK CR 22, 498 P.3d 779],1 so I’m going to grant the motion to suppress. All evidence gathered subsequent to the stop will be suppressed.” The State announced its intent to appeal in open court. The State timely filed its written Notice of Intent to Appeal and Designation of Record seeking to appeal pursuant to 22 O.S.Supp.2022, § 1053(5).

…

¶15 The decision of the District Court of Noble County granting Appellee’s motion to suppress is REVERSED. The matter is REMANDED for further proceedings consistent with this Opinion. 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.

CITY OF TULSA v. O’BRIEN
2024 OK CR 31
Case Number: S-2023-715
Decided: 12/05/2024

O P I N I O N

HUDSON, JUDGE:

¶1 Appellee, Nicholas Ryan O’Brien, was charged by Information in the Municipal Criminal Court of the City of Tulsa with the following misdemeanor traffic crimes:

Case No. 720766, Driving Under the Influence of Alcohol, in violation of City of Tulsa Revised Ordinances Title 37, § 649;

Case No. 720766A, Transporting an Open Container, in violation of City of Tulsa Revised Ordinances Title 37, § 657;

Case No. 720766B, Operating a Motor Vehicle With an Expired Tag, in violation of City of Tulsa Revised Ordinances Title 37, § 409;

Case No. 720766C, Driving Left of Center, in violation of City of Tulsa Revised Ordinances Title 37, § 637; and

Case No. 720766D, Improper Use of Left Lane, in violation of City of Tulsa Revised Ordinances Title 37, § 640.

¶2 The Information alleged these offenses occurred on August 30, 2021, while O’Brien was driving a motor vehicle on a multi-lane public street, at or near 1300 South Denver Avenue, in the city of Tulsa. This traffic stop was conducted by the Tulsa Police Department.

…

¶38 Appellee’s motion to dismiss this appeal for lack of jurisdiction is DENIED. The Order of the Municipal Criminal Court of the City of Tulsa dismissing this case is REVERSED AND REMANDED for reinstatement of the case and further proceedings not inconsistent with this Opinion. Appellee’s motion to strike the City of Tulsa’s reply brief is DENIED. The Muscogee (Creek) Nation’s request for Oral Argument 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 delivery and filing of this decision.

MARTIN v. STATE
2024 OK CR 30
Case Number: RE-2023-909
Decided: 10/31/2024

SUMMARY OPINION

MUSSEMAN, VICE PRESIDING JUDGE:

¶1 Appellant, Jason Martin Jr., appeals from the revocation of his suspended sentence in Comanche County District Court Case No. CF-2016-721. On June 9, 2017, Appellant pleaded guilty to Assault and Battery with a Deadly Weapon (21 O.S.2011, § 645) (Count 1) and Possession of a Firearm After Juvenile Adjudication (21 O.S.Supp.2014, § 1283(D)) (Count 2). He was sentenced to concurrent terms of ten years imprisonment on each count, with all except the first eight years suspended.

…

¶7 The revocation of Appellant’s suspended sentence in Comanche County District Court Case No. CF-2016-721 is AFFIRMED and this matter is REMANDED to the District Court for entry of a revocation order consistent with Appellant’s original judgment and sentence. 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.

STATE v. VELASQUEZ
2024 OK CR 29
Case Number: S-2023-921
Decided: 10/24/2024

¶1 Appellee Elmer Velasquez was charged in the District Court of Tulsa County, Case No. CF-2023-2078, with Unlawful Possession of a Controlled Drug with Intent to Distribute (63 O.S.2021, § 2401) and Acquiring Proceeds from Drug Activity (63 O.S.2021, § 2-503.1). At the conclusion of the August 25, 2023, Preliminary Hearing, the defense’s demurer was overruled and the Appellee was bound over to stand trial as charged.

¶2 On October 9, 2023, the Appellee filed a Motion to Quash Bindover arguing the magistrate abused her discretion in not granting relief stemming from the illegal execution of a standard search warrant. On October 24, 2023, the State filed a response to the motion. On November 8, 2023, a hearing was held before the Honorable Michelle Keely, District Judge. After hearing argument from both the State and the Appellee, the court sustained the Appellee’s motion to quash the bindover and suppressed the search and all evidence seized pursuant to the search. The State announced its intent to appeal.

¶3 The State now appears before this Court pursuant to 22 O.S.2021, § 1053(5), and argues the District Court abused its discretion when it applied the Exclusionary Rule as a remedy for a violation of 22 O.S.2021, § 1228.1 The State argues the court’s order suppressed the entirety of the evidence supporting the charged offenses.

…

¶30 The State’s appeal is GRANTED. The decision of the District Court is REVERSED and the case is REMANDED to the trial court for further proceedings consistent with this opinion. 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.

OLVERA v. STATE
2024 OK CR 28
Case Number: F-2023-102
Decided: 10/17/2024

SUMMARY OPINION

MUSSEMAN, VICE PRESIDING JUDGE:

¶1 Appellant, Jordi Eduardo Olvera, appeals his Judgment and Sentence from the District Court of Oklahoma County, Case No. CF-2021-899, Count 1, Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7(B); Count 2, Burglary in the First Degree, in violation of 21 O.S.2011, § 1431; Count 3, Burglary in the First Degree, in violation of 21 O.S.2011, § 1431; and Count 4, Desecration of a Human Corpse, in violation of 21 O.S.2011, § 1161.1.

¶2 The Honorable Heather E. Coyle, District Judge, presided over the jury trial held August 29 through September 1, 2022. At the conclusion of trial, the jury assessed a sentence of life on Count 1; twelve years imprisonment on Counts 2 and 3; and seven years imprisonment on Count 4. At formal sentencing the State announced its dismissal of Count 2 due to its merger with Count 1. Judge Coyle sentenced Mr. Olvera in accordance with the jury’s verdicts in the remaining counts and ordered the sentences to run consecutively.1 Mr. Olvera appeals his judgment and sentence and raises the following issues:

I. whether Appellant’s custodial statement should have been suppressed because it was the fruit of an illegal and unlawful arrest;

II. whether the trial court erred by admitting the custodial interrogation of Appellant after the invocation of his Fifth Amendment right to counsel;

III. whether the evidence was insufficient to prove the elements of Count 4 — desecration of a human corpse;

IV. whether Appellant was denied the effective assistance of counsel;

V. whether the sentence imposed against Appellant was excessive; and

VI. whether Appellant was deprived of his right to a fair trial due to the accumulation of errors that occurred.

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

STATE v. KRIGEL
2024 OK CR 27
Case Number: S-2023-877
Decided: 10/03/2024

OPINION

ROWLAND, PRESIDING JUDGE:

¶1 The State of Oklahoma appeals the district court’s order quashing the magistrate’s Bindover Order of Count 2-Attempted Rape in the First Degree of A.M. The State filed a six count felony Information against Krigel, a Tulsa County attorney, in the District Court of Tulsa County, Case No. CF-2023-1973.1 The charges included three counts of Rape in the First Degree (Counts 1, 3, 4), in violation of 21 O.S.2011, §§ 1111, 1114, 1115, one count of Attempted Rape in the First Degree (Count 2), in violation of 21 O.S.2011, §§ 42, 1111, 1114, 1115, one count of Second Degree Rape by Instrumentation (Count 5), in violation of 21 O.S.2011, § 1111.1, and one count of First Degree Rape by Instrumentation (Count 6), in violation of 21 O.S.Supp.2015, § 1111.1. Krigel waived his right to a preliminary hearing on Counts 3, 4, and 5. The magistrate conducted a preliminary hearing on Counts 1, 2, and 6, and ultimately overruled Krigel’s demurrer and bound him over for trial on all six counts.2

¶2 Because the judges in Tulsa County recused in this matter, the Chief Justice of the Oklahoma Supreme Court specially assigned the Honorable Mark Campbell, Bryan County District Judge, to hear and decide all matters relating to the charges against Krigel in this case.3 Krigel’s counsel filed a Motion to Quash Magistrate’s Bindover the day Judge Campbell formally arraigned Krigel. Krigel’s motion failed to identify any inadequacy but noted he had yet to receive the preliminary hearing transcript. Krigel later filed a brief in support of his motion to quash and Judge Campbell conducted a motion hearing three days later. Because the State had not had the opportunity to respond in writing, Judge Campbell granted the State’s request for time to oppose Krigel’s motion to quash, requesting the State specifically address the sufficiency of the evidence for Count 2. The State filed its written response, and Judge Campbell held a hearing on Krigel’s motion. After hearing the parties’ arguments, he took the matter under advisement. Judge Campbell entered a written order two days later, finding Krigel’s motion to quash meritless with respect to Counts 1, 3, 4, 5, and 6. He granted the motion to quash Count 2, stating:

The evidence as to Count 2, even when viewed in the light most favorable to the State, is insufficient to support the charge of Attempted Rape in the First Degree. The State relied on an unpublished opinion from the Oklahoma Court of Criminal Appeals, regarding a case from the District Court of Tulsa County, CF-04-705, State vs. Adrian Dwane Crawford, to support their position that there was sufficient evidence for a bindover as to Count 2 in the instant case. However, the undersigned finds the published opinion of Rosteck v. State, 749 P.2d 556, to be more persuasive and relevant to the facts of the instant case.

¶3 The State challenges this ruling, arguing: (1) that the judge failed to consider relevant evidence and to apply the correct standard of review; and (2) that there was sufficient evidence to support the bindover on Count 2. We review the district court’s ruling for an abuse of discretion. State v. Roberson, 2021 OK CR 16, ¶ 4, 492 P.3d 620, 622; State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1193-94. This Court will find an abuse of discretion “only where the ruling is unreasonable or arbitrary and made without proper consideration of the facts and law pertaining to the matter at issue.” Posey v. State, 2024 OK CR 10, ¶ 19, 548 P.3d 1245, 1259; Delso, 2013 OK CR 5, ¶ 5, 298 P.3d at 1194.

TAYLOR v. STATE
2024 OK CR 26
Case Number: F-2022-776
Decided: 08/29/2024

SUMMARY OPINION

HUDSON, JUDGE:

¶1 Appellant, Bruce Lee Taylor, was convicted by a jury in the District Court of Osage County, Case No. CF-2019-367, of Counts 1, 2 and 3: Lewd Molestation, in violation of 21 O.S.Supp.2017, § 1123; and Counts 4 and 5: Sexual Battery, in violation of 21 O.S.Supp.2017, § 1123(B). The jury sentenced Taylor to life imprisonment each on Counts 1, 2 and 3, and ten-years imprisonment each on Counts 4 and 5.

¶2 The Honorable Stuart L. Tate, District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury’s verdicts. Judge Tate ordered the sentences to run consecutively and granted no credit for time served. The court further imposed various costs and fees. Appellant must serve 85% of his Counts 1, 2 and 3 sentences before he is parole eligible. 21 O.S.Supp.2015, § 13.1

¶3 Taylor now appeals and raises the following propositions of error: (1) the wrong instruction regarding the 85% Rule was given to the jury; (2) the prosecutor made a material misstatement of the law that diminished the jury’s sense of responsibility when imposing sentence; and (3) the trial court erred in not ordering credit for time served because Appellant was indigent, unable to post bond, and received the maximum possible punishment.

¶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.

BARKUS v. STATE
2024 OK CR 25
Case Number: F-2022-1072
Decided: 08/29/2024

OPINION

LEWIS, JUDGE:

¶1 Phillip Lee Barkus, Appellant, was tried without a jury and found guilty of Count 1, possession of a firearm after former conviction of a felony, in violation of 21 O.S.Supp.2019, § 1283; Count 2, driving under the influence of alcohol or other intoxicating substance, subsequent offense, in violation of 47 O.S.Supp.2020, § 11-902; and Count 3, carrying a firearm while under the influence of alcohol or drugs, a misdemeanor, in violation of 21 O.S.Supp.2012, § 1289.9, in the District Court of Hughes County, Case No. CF-2021-8. The Honorable Trisha D. Smith, Associate District Judge, found Appellant guilty after two or more prior convictions and assessed punishment of ten years imprisonment each in Counts 1 and 2, and six months imprisonment in Count 3, and ordered the sentences served concurrently.

Facts

¶2 Appellant was apprehended by a sheriff’s deputy who observed his pickup disobey a stop sign at Allen and Broadway streets in Holdenville. The driver’s identification showed he was Phillip Barkus. Noticing the smell of alcohol, several sobriety tests followed that validated the deputy’s suspicions of intoxication and led to Appellant’s arrest. An inventory search yielded a rifle in the cab behind the driver’s seat. Appellant admitted possessing the gun. At the bench trial, counsel stipulated to eleven prior felony convictions.

Analysis

¶3 In Proposition One, Appellant asserts that he is a Seminole Indian and challenges the State’s legal authority to prosecute him for crimes committed in Indian Country. McGirt v. Oklahoma, 591 U.S. 894 (2020).1 He preserved his claims in written motions and a series of hearings, with the trial court repeatedly denying relief. We review the court’s factual findings for clear error and its legal conclusions on Indian status de novo. See Parker v. State, 2021 OK CR 17, ¶ 34, 495 P.3d 653, 665.

¶4 Appellant’s burden was to meet the Rogers test2 of Indian status “by producing prima facie evidence that he has some Indian blood and that he was recognized as an Indian by a tribe or the federal government.” Id., 2021 OK CR 17, ¶ 32, 495 P.3d at 664 (citing State v. Klindt, 1989 OK CR 75, ¶ 5, 782 P.2d 401, 403). The burden would then shift to the State to rebut Appellant’s evidence of Indian blood and/or tribal recognition by the greater weight of the evidence. Id.

¶5 Prima facie evidence is that which is “good and sufficient on its face, i.e., sufficient to establish a given fact . . . and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports.” Wadkins v. State, 2022 OK CR 2, ¶ 9, 504 P.3d 605, 609-10 (internal quotations omitted).

¶6 Appellant’s Seminole Freedmen3 citizenship card lists his Indian blood quantum as 0/0. He offered two DNA tests indicating he had some Native American ancestry.4 The State objected that these commercially available tests were unreliable and not properly authenticated. The trial court granted controlling weight to the tribal card’s blood quantum and the lack of documented ancestry of Indian blood.

¶7 In his own testimony, Appellant admitted that he lacked any documentary evidence showing his biological relation to any person on the Seminole roll of Indians by blood. The Seminole Nation itself had previously rejected his request to alter his citizenship from Freedmen based on his Estelusti ancestry to Indian by blood.

¶8 The trial court found that while Appellant is a Seminole tribal member by virtue of his Estelusti ancestry, he was not an Indian under the Rogers test because he failed to show some Indian blood. On de novo review, we find these factual rulings were not clearly erroneous and the legal conclusions are sound.

¶9 This Court has yet to determine whether any DNA result would prove Indian blood for McGirt purposes.5 We will not do so here. Appellant offered no expert or scientific evidence on the general reliability of DNA as proof of Indian ancestry, the reliability of the specific samples’ collection and preservation, or the methods for analysis and interpretation of these tests.6

¶10 Such a determination would, at minimum, require expert testimony on the current state of DNA technology for proving ethnic ancestry, the scientific validity of the specific tests, the integrity of the sample, and the acceptance of such evidence in the relevant community. See generally Taylor v. State, 1995 OK CR 10, 889 P.2d 319, 327 (applying Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)to DNA profiling technology).

¶11 Appellant’s Estelusti ancestry, his Freedmen citizenship, and his lifelong association with the Seminole Nation are not open to doubt. Appellant satisfies the recognition element of the Rogers test. But he has not shown the required prima facie evidence that he has some degree of Indian blood, and this disposes of his McGirt claim. Proposition One is denied.

DECISION

¶12 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.

IRWIN v. STATE
2024 OK CR 24
Case Number: F-2022-741
Decided: 08/22/2024

¶1 Appellant, Jerry Lee Irwin, was convicted by a jury in the District Court of Tulsa County, Case No. CF-2021-3185, of Count 1: Assault and Battery with a Deadly Weapon, in violation of 21 O.S.2011, § 652(C); Count 4: Kidnapping, in violation of 21 O.S.Supp.2012, § 741; Count 5: Possession of a Firearm After Former Conviction, in violation of 21 O.S.Supp.2019, § 1283(A); and Count 6: Trafficking in Illegal Drugs (Methamphetamine), in violation of 63 O.S.Supp.2019, § 2-415.1 The jury found Irwin was previously convicted of two or more prior felonies and sentenced him to forty years imprisonment each on Counts 1 and 4; twenty years imprisonment on Count 5; and sixteen years imprisonment plus a $100,000.00 fine on Count 6.

¶2 The Honorable Sharon Holmes, District Judge, presided at Irwin’s trial. The case, however, was transferred post-verdict to the Honorable Dawn Moody, District Judge, based on information that Irwin may have lodged threats against Judge Holmes. Judge Moody sentenced Irwin in accordance with the jury’s verdicts except that she suspended the fine imposed on Count 6. Judge Moody ordered the sentences in this case to run consecutively and ordered credit for time served.2 Irwin now appeals.

¶3 This case involves the drug-related kidnapping and torture of Jorge Israel Torres-Zapata by Irwin and his co-defendant, Jennifer Perea. The record shows Irwin bound, gagged, shot, beat and tortured the victim with a hammer, plank and other items. Irwin also used a lighter and aerosol spray can to torch the victim’s exposed genitals, while the victim writhed and screamed in pain. During a traffic stop two weeks later, Irwin was found in possession of 91.78 grams of methamphetamine and a gun.

¶4 On appeal, Irwin raises two propositions of error. First, Irwin complains that the State of Oklahoma lacked jurisdiction to prosecute him in this case because he is Native American with a certified 1/32 quantum degree of Indian blood, and the offenses were committed within the jurisdictional boundaries of the Cherokee and Muskogee (Creek) Nations. Second, Irwin argues that trial counsel was constitutionally ineffective for failing to seek dismissal of the case for lack of jurisdiction.

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

STATE v. ALVARADO
2024 OK CR 23
Case Number: S-2023-837
Decided: 08/22/2024

¶1 The State of Oklahoma, Appellant, presents a question of law reserved for appeal under the authority of 22 O.S.Supp.2022, § 1053(3). The State charged Appellee by information with Count 1, conspiracy to commit larceny by false pretenses, in violation of 21 O.S.Supp.2018, § 421, and Count 2, obtaining money by false pretenses, in violation of 21 O.S.2011, § 1541.2, both after former conviction of two or more felonies, in the District Court of Comanche County, Case No. CF-2019-513. The court granted Appellee’s demurrer to Count 2. The jury acquitted Appellee of Count 1. The State in its appeal seeks to clarify whether a supplemental information alleging prior felony convictions gave the advance written notice required for impeaching the defendant’s testimony with stale felony convictions under 12 O.S.2011, § 2609(B).1 We answer the legal question presented applying de novo review. State v. Davis, 2011 OK CR 22, ¶ 5, 260 P.3d 194, 195.

…

DECISION

¶14 RESERVED QUESTION ANSWERED. 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.

MILLS v. STATE
2024 OK CR 22
Case Number: F-2023-469
Decided: 08/15/2024

¶1 Appellant Jaqueline Marjonnie Mills, through counsel, appeals from the acceleration of her deferred sentence in Tulsa County District Court Case No. CF-2019-5868. Appellant entered a blind plea of guilty to Robbery with a Dangerous Weapon, in violation of 21 O.S.2011, § 801 (Count 1), Trafficking in Illegal Drugs -Methamphetamine, in violation of 63 O.S.Supp.2019, § 2-415 (Count 2), Possession of a Firearm While in the Commission of a Felony, in violation 21 O.S.Supp.2012, § 1287 (Count 3), and Obstructing an Officer, in violation 21 O.S.Supp.2015, § 540 (Count 5). The trial court withheld a finding of guilt for Appellant to complete the Women In Recovery program.

¶2 Upon successful completion of the Women In Recovery program, Appellant was placed on a two year deferred sentence with the Department of Corrections until April 5, 2024.

¶3 The State filed an application to accelerate the judgment and sentence alleging Appellant committed the new crimes of felony murder first degree, use of a vehicle in the discharge of a weapon, and possession of a firearm while under the supervision of the Department of Corrections. After an acceleration hearing, Appellant’s deferred sentence was accelerated and she was sentenced to life imprisonment on Count 1, twenty years imprisonment on Count 2, ten years imprisonment on Count 3, and one year in county jail on Count 5. All counts were ordered to run concurrently. Appellant appeals, raising the following propositions of error:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN ACCELERATING MS. MILLS DEFERRED SENTENCE BECAUSE MS. MILLS WAS DENIED HER STATUTORY RIGHT TO AN EVIDENTIARY HEARING ON THE MERITS OF THE STATE’S APPLICATION TO ACCELERATE.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN ACCELERATING MS. MILLS DEFERRED SENTENCE BECAUSE THE EVIDENCE RELIED UPON WAS INSUFFICIENT TO PROVE EACH ELEMENT OF THE ALLEGED OFFENSE.

…

DECISION

¶11 The order of the District Court of Tulsa County accelerating Appellant’s deferred judgment and sentence in Case No. CF-2019-5868 is REVERSED and VACATED. This matter is remanded to the Tulsa County District Court for further proceedings consistent with this opinion. 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.

COTTON v. STATE
2024 OK CR 21
Case Number: RE-2023-454
Decided: 06/28/2024

¶1 Appellant, Darnell Kehaulani Cotton, appeals from the revocation of her suspended sentence by the Honorable Grant Sheperd, District Judge, in the District Court of Comanche County, Case No. CF-2017-589.

¶2 On December 18, 2018, Appellant entered a plea of guilty to Unlawful Possession of Controlled Drug with Intent to Distribute (63 O.S.Supp.2012, § 2-401(B)(2)) (Count 1), Child Neglect (21 O.S.Supp.2014, § 843.5(C)) (Count 2), and Unlawful Possession of Drug Paraphernalia (63 O.S.2011, § 2-405) (Count 3) in Comanche County District Court Case No. CF-2017-589. Appellant was sentenced to ten years imprisonment in the Department of Corrections on Counts 1 and 2 and one year imprisonment in the county jail on Count 3 with all time suspended. All counts were ordered to run concurrently with each other.

¶3 On March 14, 2023, the State filed a Motion to Revoke Suspended Sentence alleging Appellant committed the new crime of Assault and Battery with a Dangerous Weapon as alleged in Comanche County District Court Case No. CF-2023-159. Following a May 12, 2023, hearing Judge Sheperd sustained the State’s motion and revoked five years of Appellant’s suspended sentence, leaving a remaining sentence of five years and resuspending those five years, with credit for time served.

¶4 From this revocation, Appellant appeals, raising the following propositions of error:

I. The decision to revoke Ms. Cotton’s suspended sentence was based exclusively on incompetent evidence admitted in violation of her due process right to confront the witnesses against her;

II. The trial court’s order revoking Ms. Cotton’s suspended sentence must be vacated because it is void of competent proof showing, by preponderance of the evidence, she violated the terms of her probation by committing a new offense; and

III. The trial court has illegally extended Ms. Cotton’s original sentence by requiring five years of the ten year suspended sentence to be “resuspended” upon her release from the Department of Corrections.

ANALYSIS

¶5 In Proposition I, Appellant claims the revocation of her suspended sentence is based exclusively on hearsay evidence and was admitted in violation of her due process right to confront the witnesses against her. Appellant objected on the grounds of hearsay and confrontation at the revocation hearing thereby preserving review of this issue for an abuse of discretion. See Hampton v. State, 2009 OK CR 4, ¶ 10, 203 P.3d 179, 182.

…

DECISION

¶16 The revocation of Appellant’s suspended sentence in Comanche County District Court Case No. CF-2017-589 is AFFIRMED, but the matter is REMANDED to the District Court for modification of the revocation order to VACATE the imposition of a five year resuspended sentence and impose the remaining balance of the Appellant’s sentence as ordered at the original sentencing. 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.

BOWLDS v. STATE
2024 OK CR 20
Case Number: F-2021-1155
Decided: 06/28/2024

¶1 Appellant,Charles Randy Bowlds, Jr., was tried by jury and convicted in the District Court of Logan County, Case No. CF-2019-45 of: Count 1, Kidnapping, in violation of 21 O.S.Supp.2012, § 741; Count 3, Assault and Battery With a Dangerous Weapon, in violation of 21 O.S.2011, § 645, both After Former Conviction of Two or More Felonies;1 and Count 4, Domestic Assault and Battery (Misdemeanor), in violation of 21 O.S.Supp.2019, § 644(C). The jury returned guilty verdicts on all counts with sentences of twenty years imprisonment on Counts 1 and 3 and one year imprisonment and payment of a $5,000.00 fine on Count 4. The trial court sentenced Appellant in accordance with the jury’s verdict and ordered all counts to run consecutively.

¶2 From this judgment and sentence, Appellant appeals and raises the following counseled propositions of error:

I. STRUCTURAL ERROR OCCURRED WHEN THE ONLY MINORITY JUROR WAS STRUCK BY THE PROSECUTION WITHOUT A NON-PRETEXTUAL, RACE-NEUTRAL REASON, REQUIRING A REVERSAL OF THE CONVICTIONS FOR A NEW TRIAL.

II. THE TRIAL COURT ERRED IN ORDERING THE SENTENCES TO RUN CONSECUTIVELY.

Appellant raises the following pro se propositions of error:

I. THE DENIAL OF APPELLANT’S MOTION FOR APPOINTMENT OF COUNSEL FOR FINAL SENTENCING WAS ARBITRARY AND VIOLATED APPELLANT’S SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION [SIC].

II. APPELLANT’S MOTION FOR SELF-REPRESENTATION WAS NOT INTELLIGENTLY, NOR VOLUNTARILY MADE AND THEREFORE RESULTED IN REVERSIBLE CONSTITUTIONAL ERROR.

III. TRIAL COUNSEL ALBERT HOCH, JR. WAS UNPREPARED, INCOMPETENT AND INEFFECTIVE DEPRIVING APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION [SIC].

IV. THE TRIAL COURT ABUSED ITS DISCRETION BY ARBITRARY [SIC] AND CAPRICIOUSLY DENYING HIS HANDWRITTEN PRO SE MOTION FOR NEW TRIAL.

¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence, Appellant is not entitled to relief.

BOWLDS v. STATE
2024 OK CR 19
Case Number: F-2021-1155
Decided: 07/18/2024

¶1 On June 19, 2024, Appellee, the State of Oklahoma, by and through Attorney General Gentner F. Drummond, filed a Motion To Publish Opinion in the above-styled case. The Attorney General asserts that publication of this Court’s Summary Opinion herein (Bowlds v. State, Case No. F-2021-1155 (June 6, 2024), not for publication) is warranted because it addressed the issue of re-appointment of counsel after a valid prior waiver of counsel.

¶2 Appellee’s Motion to Publish is GRANTED. The Clerk of this Court is hereby directed to designate the Summary Opinion issued on June 6, 2024, as “For Publication.” The unpublished opinion is withdrawn and substituted with 2024 OK CR 20, Bowlds. V. State.

STATE v. AGUILAR
2024 OK CR 18
Case Number: S-2023-575
Decided: 07/18/2024

¶1 The State of Oklahoma appeals a pretrial order quashing the Information against Appellee Aguilar for insufficient evidence. The State charged Aguilar by Information in the District Court of Kay County, Case No. CF-2020-634, with one count of child neglect in violation of 21 O.S.Supp.2019, § 843.5(C). After being bound over for trial at preliminary hearing, she filed a motion to quash for insufficient evidence pursuant to 22 O.S.2021, § 504.1. The Honorable Lee Turner, District Judge, granted the motion and quashed the Information. The State now appeals, pursuant to 22 O.S.Supp.2022, § 1053(4), and raises the following propositions of error:

I. whether the district court erred in granting Aguilar’s motion to quash for insufficient evidence when it found that her use of medical marijuana while pregnant is not illegal under Oklahoma law; and
II. whether the district court erred in finding that the out of state lab report should not have been admitted at preliminary hearing.
¶2 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. The district court’s order granting Aguilar’s motion to quash is affirmed.

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.

…

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.

…
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.

…

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.

Posted in Oklahoma Court of Criminal Appeals