author:
KAUGER, J.
      OPALA, V.C.J.,

text:
    2004 OK 19
    Faramarz MEHDIPOUR, Plaintiff/Appellant, v. STATE ex rel. DEPARTMENT OF CORRECTIONS, et al., Defendants/Appellees.
    No. 99,301.
    Supreme Court of Oklahoma.
    March 30, 2004.

      Faramarz Mehdipour, Stringtown, OK, pro se.
    J. Kevin Behrens, Assistant Attorney General, Oklahoma City, OK, For Defendants/Appellees.
   KAUGER, J.

¶ 1 We granted certiorari to address the issue of whether inmates who seek to proceed as indigents or paupers, but who are required to prepay filing fees pursuant to 57 O.S.2001 § 566.2 if they have filed three or more meritless civil lawsuits are statutorily denied due process or the constitutional right of access to courts guaranteed to all citizens by the Okla. Const, art 2, § 6. The statute in question provides in pertinent part:

“A. A prisoner who has, on three or more prior occasions, while incarcerated or detained in any facility, or while on probation .or parole, brought an action or appeal in a court of this state or a court of the United States that has been dismissed on the grounds that the case was frivolous, or malicious, or failed to state a claim upon which relief could be granted, may not proceed in a matter arising out of a civil case, or upon an original action or on appeal without prepayment of all fees required by law, unless the prisoner is under immediate danger of serious physical injury....”

We hold that the statute does not deprive inmates of the due process right to access to courts.

FACTS

¶ 2 On January 2, 2003, the appellant, Far-amarz Mehdipour (Mehdipour), an inmate at the Mack Alford Correctional Facility in Stringtown, Oklahoma,' filed a lawsuit in the district court of Atoka County, Oklahoma, against the appellants, the warden, and various employees of the prison and the Department of Corrections (collectively, prison officials). Mehdipour complained of violations of his civil rights, alleging that the prison officials: 1) improperly placed him in a segregation unit; 2) seized his legal materials and personal property; 3) forced him to live with a smoker in the same cell; 4) failed to properly train prison employees; and 5) forced him to work against his will. He did not allege that he was under any immediate danger of serious physical injury. Rather than pay the filing fee in the district court, Meh-dipour filed a pauper’s affidavit.

¶ 3 The prison officials filed a motion for summary judgment on March 24, 2003. They argued that, pursuant to 57 O.S.2001 § 566.2, the cause must be' dismissed for failure to pay the filing fee because Mehdip-our had, on at least three prior occasions, filed lawsuits that had been dismissed as frivolous or for failure to state a claim. The prison officials presented an order filed February 25, 2003, in the United States Court of Appeals for the 10th Circuit which dismissed a lawsuit filed by Mehdipour for failing to pay a filing fee after three or more prior meritless cases had been dismissed.

¶4 On April 28, 2003, the trial court entered an order granting the prison officials’ motion for summary judgment. It found that Mehdipour was incarcerated, he had not paid the filing fee, and he had, on at least three prior occasions, filed actions which had been dismissed as frivolous or for failure to state a claim. Mehdipour appealed, insisting that he had never filed a frivolous civil action. The Court of Civil Appeals affirmed the trial court. It determined that 57 O.S.2001 § 566.2 applied as a matter of law, and required dismissal, without prejudice to refiling upon the proper payment of the filing fees. We granted certiorari on January 20, 2004, to address the constitutionality of the statute.

TITLE 57 O.S.2001 § 566.2 DOES NOT DEPRIVE INMATES OF THE DUE PROCESS RIGHT TO ACCESS TO COURTS.

¶ 5 Mehdipour argues that a literal construction of 57 O.S.2001 § 566.2, to require prepayment of fees even though he alleges that he is indigent, violates his right to access to the courts and due process guaranteed by the federal and state constitutions. He relies on our recent decision in Mehdipour v. Wise, 2003 OK 3, 65 P.3d 271 in support of his argument. The prison officials contend that the statute in question does not prevent access to courts or deny due process, but merely requires prepayment of a filing fee rather than installment payments, under certain circumstances when an inmate has filed excessive, meritless lawsuits.

¶ 6 There are two sources of the right to access the courts and due process. Oklahoma’s Constitution, art 2, § 6 specifically guarantees citizens’ access to courts. Although the United States Constitution does not have a specific access to courts provision like the Oklahoma Constitution, the United States Supreme Court has recognized that indigent inmates have a fundamental constitutional right to meaningful access to the courts, arising from several constitutional provisions. However, this right in the civil context, is not absolute or unconditional, except in cases where an indigent litigant has a fundamental interest at stake. Due process is guaranteed by the Okla. Const., art 2, § 7 and the 14th Amendment of the United States Constitution.

¶ 7 The United States Supreme Court has issued orders denying petitioners from proceeding informa pauperis when seeking extraordinary relief for filing excessive, frivolous and/or abusive petitions in the Court. Similarly, the Oklahoma Court of Criminal Appeals has also denied in forma pauperis status for future extraordinary relief filings based on past excessive, frivolous, and duplicitous filings. Other courts, relying on their inherent powers have also imposed similar restrictions on litigants who have demonstrated a pattern of excessive filings.

¶ 8 This Court has previously determined that § 6 of the Oklahoma Constitution was intended to guarantee that the judiciary would be open and available for the resolution of disputes, but not to guarantee that any particular set of events would result in court-awarded relief. We have also determined that prisoners have a constitutional right to reasonable access to the courts. Last year, in Mehdipour v. Wise, 2003 OK 3, 65 P.3d 271, we recognized that our courts have consistently declined to interpret our statutory provisions in a manner which would deprive prisoners access to civil judicial process.

¶ 9 Wise involved the issue of whether inmates were statutorily deprived of the capacity to file any civil action against a third party which does not involve the asserted violation of constitutional rights. In determining that they were not and could not be deprived of such capacity, we also noted that our rulings have long recognized the fundamental policy considerations and constitutional implications which would arise from a holding that prisoners may be deprived of their right to seek protection of the courts to guarantee their personal and property rights.

¶ 10 If this cause were about the abolition of the right to seek redress for every type of injury or complaint of any civil case that required a filing fee, we would agree that Mehdipour v. Wise, 2003 OK 3, 65 P.3d 271, and its progeny would be dispositive. However, it is not about the abolishment of a right to seek redress, but rather, whether the conditions imposed which limit the right to seek redress are constitutional. We have not addressed the issue of whether withholding the right of an indigent prisoner to seek redress for a civil complaint that requires a filing fee, until the filing fee is prepaid, violates access to the courts or due process.

¶11 Title 28 U.S.C.A. § 1915(g)(1996) of the Federal Prison Litigation Reform Act (the Act) has a provision which is similar to Oklahoma’s 57 O.S.2001 § 566.2. Section 1915(g) provides:

“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the Untied States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”

Under the Act, federal courts may also exempt non-prisoner indigents from prepaying filing fees. However, the federal courts may not exempt prisoner indigents from prepaying filing fees. Instead, prisoner indigents must prepay at least a partial filing fee followed by monthly payments until the fees are paid. A limited exception exists for prisoners with no assets and no means to pay the initial partial filing fee.

¶ 12 The United States Supreme Court has not addressed the constitutionality of 28 U.S.C.A. § 1915(g)(1996) as it relates to access to the courts or due process. Our research does not reveal any persuasive authority for holding the statute unconstitutional. However, the federal circuit courts have addressed the constitutionality of the statute and agree that it is constitutional and does not deny access to courts, due process, or violate the equal protection clause.

¶ 13 The courts which have determined that the “three strikes” rule does not block a prisoner’s access to courts do so because, by its terms, it does not prevent prisoners from filing civil actions, it merely prohibits them from enjoying in forma pauperis status. The rationale is that: 1) prisoners aren’t prohibited from accessing the courts to protect, their rights-they merely must pay the filing fees; 2) it only precludes prisoners with a history of abusing the legal system from continuing to misuse it while enjoying in forma pauperis status; and 3) only after demonstrating an inability to function within the judicial system is an indigent inmate asked to pay the filing fee.

¶ 14 These courts also recognize that the United States Supreme Court has never required an unlimited rule that indigents, at all times, in all cases, have the right to relief without payment of fees or that Congress is compelled to provide unlimited access to courts. While fee waivers are required in criminal cases, in the civil context the United States Supreme Court has only required a waiver of fees in a narrow category of cases where the litigant has a fundamental interest at stake.

¶ 15 The courts which have determined that the statute does not violate due process or equal protection recognize that unless a classification involved is a fundamental right or is drawn upon an inherently suspect distinction such as race, religion, or alienage, the constitutionality of statutory discrimination is presumed and requires only that the classification challenged be rationally related to a legitimate state interest. After determining that neither prisoners nor indigents are a suspect class, the provisions of the Act do not implicate fundamental rights, and the provisions are rationally related to the legitimate governmental interest of deterring frivolous prisoner lawsuits, they held that due process was not impeded by the statute.

¶ 16 In upholding the constitutionality of the statute, the courts reason that: 1) proceeding in forma pauperis is a privilege, not a right — fundamental or otherwise; 2) rather than prohibiting the filing of civil actions, it merely prohibits the privilege of proceeding in forma paueris; and 3) its function is not to place burdens on prisoners, but to put them in the same position as other litigants who have to weigh their resources and determine whether a lawsuit or an appeal is worth the expense. Ultimately, application of the statute is entirely within an inmate’s control if meritless lawsuits are not filed.

¶ 17 In Higgins v. Carpenter, 258 F.3d 797 (8th Cir.2001) cert. denied by Early v. Harmon, 535 U.S. 1040, 122 S.Ct. 1803, 152 L.Ed.2d 659 (2002), the Court, in upholding the “three strikes” statute as constitutional recognized that the statute does not close the courthouse doors to “frequent filer” prisoners, it merely prohibits them from enjoying in forma pauperis status and makes them pay the full filing fee sooner rather than later. It noted that:

“It is true that some indigent inmates— who, like Higgins and Early, have no prison jobs or other income sources and cannot save the full filing fee — may be effectively prevented from pursuing valid constitutional claims after receiving three strikes. Yet, a ‘constitutional requirement to waive court fees in civil cases is the exception, not the general rule.’ ... The Supreme Court has recognized only a few civil matters in which fee waivers are required ... (termination of parental rights) ... (divorce proceedings). If fee waivers are not constitutionally required in prisoner § 1983 cases, it follows that inmates do not have a constitutional right to pay court fees for civil cases by the installment method... .To be sure, proceeding IFP in a civil case is a privilege, not a right— fundamental or otherwise.” (Citations omitted.)

¶ 18 While pronouncement of a federal law question by an inferior federal court is not binding on this Court, it is persuasive, as well as instructive, in providing guidance on similar state law questions. Given the Federal precedent and overwhelming agreement in rejecting constitutional challenges to similar legislative enactments, we agree with the rationale of the federal courts.

¶ 19 Under the current statutory scheme, Oklahoma courts may exempt non-prisoner indigents from prepaying filing fees. If an applicant for in forma pauperis is an indigent prisoner, the prisoner is required to prepay partial filing fees followed by monthly payments until the fees are paid. An exception exists for prisoners with no means and no assets to pay the fees. Inmates are also prohibited from filing patently frivolous pleadings. Pursuant to 57 O.S.2001 § 566.2, a prisoner who has previously filed three or more meritless lawsuits must save up and prepay the full fees when filing a new lawsuit, rather than make a partial payment or installment payments.

¶ 20 The Okla. Const, art. 2, § 6, was not intended to guarantee the right to litigate entirely without expense to the litigants, nor to impose upon the public the entire burden of the expense of the maintenance of courts. Requiring partial payments was a response to a flood of pro se claims by prisoners.. The partial payment requires a prisoner to weigh the validity of a lawsuit against the cost of pursuing it. This Court has already upheld the practice of requiring prisoners to pay filing fees, as long as the payment of a partial filing fee in any month would not completely deplete a prisoner’s account with the Department of Corrections.

¶21 Because prisoners are not a suspect class, and the provisions of 57 O.S.2001 § 566.2 do not implicate fundamental rights, and are rationally related to the legitimate governmental interest of deterring frivolous prisoner lawsuits, we hold that the challenged provision is constitutional under both the federal and state constitutions. Although the effect of our holding is similar to the effect of the Federal Act, we base our holding on Oklahoma law. Under the current statutory scheme, inmates are not barred from filing lawsuits if there are no funds. However, inmates who continue to file meritless lawsuits have been on notice since 57 O.S.2001 § 566.2 became effective in November of 2001, that continuing to file frivolous lawsuits will result in its application and require prepayment of filing fees.

CONCLUSION

¶ 22 A legislative act is presumed to be constitutional and will be upheld until the contrary is shown. Because prisoners are not a suspect class, and the provisions of 57 O.S.2001 § 566.2 do not implicate fundamental rights, and are rationally related to the legitimate governmental interest of deterring frivolous prisoner lawsuits, no showing has been made that the statute is unconstitutional under either the federal or the state constitution. The Court is duty-bound to give effect to legislative acts, not to amend, repeal or circumvent them. Under the current statutory scheme, inmates are not barred from filing lawsuits if there are no funds. However, pursuant to 57 O.S.2001 § 566.2, unless an inmate is under immediate danger of serious physical injury, inmates who continue to file frivolous lawsuits will be required to prepay the full filing fees.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

WATT, C.J., HODGES, LAVENDER, HARGRAVE, BOUDREAU, WINCHESTER, and EDMONDSON, JJ., concur.

OPALA, V.C.J., concurs in result.

OPALA, V.C.J.,

concurring in result.

¶ 1 I would pronounce today that, insofar as the prisoner’s paperwork should be treated as launching before this court a facial attack upon the constitutional validity of those provisions in 57 O.S.2001 § 566.2 which are said impermissibly to impede the prisoner’s forensic access, the cited statute will pass muster under both the due process clauses (federal and state) and under state-law testing for compliance with the terms of Art. 2 § 6, Okl. Const. Affording reasonable protection against abuse of judicial process by those who repeatedly press meritless civil claims lies well within the power of the legislature.

¶ 2 As for an alleged constitutional infirmity in the cited statute’s application to this cause, I would conclude the prisoner failed to offer below any evidentiary material which would show that raising against him the § 566.2’s bar would, under the circumstances invoked by the State, offend minimum due process criteria (federal or state) as well as those standards of Oklahoma fundamental law which guarantee him a sine qua non opportunity for critical civil litigation access.

      . Tide 57 O.S.2001 § 566.2 provides:
      "A. A prisoner who has, on three or more prior occasions, while incarcerated or detáined in any facility, or while on probation or parole, brought an action or appeal in a court of this state or a court of the United States that has been dismissed on the grounds that the case was frivolous, or malicious, or failed to state a claim upon which relief could be granted, may not proceed in a matter arising out of a civil case, or upon an original action or on appeal without prepayment of all fees required by law, unless the prisoner is under immediate danger of serious physical injury.
      B. The court administrator of the Oklahoma courts shall maintain a registry of those prisoners who have had any cases dismissed as frivolous or malicious or for failure to state a claim upon which relief can be granted. The Attorney General, the General Counsel of the Department of Corrections, the district attorneys and general counsels of the various state agencies shall forward to the court administrator copies of all orders in which there was a finding the case filed by a prisoner was dismissed as frivolous or malicious or for failure to state a claim upon which relief can be granted.”

      . The Okla. Const, art 2, § 6 provides:
      "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for eveiy wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice.”

      . A copy of Mehdipour’s pauper’s affidavit was not included in the record on appeal. However, he did file one in this Court and it shows that he has nothing in his prison draw account and $45.88 in his savings account.

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . The order, entered by the Court Clerk for the 10th Circuit, refers to Mehdipour v. Chapel, DC No. 00-CV-652-T from the Western District Court of Oklahoma, which was dismissed for failure to state a claim. The appeal to the 10th Circuit, Mehdipour v. Chapel, No. 00-6347, 12 Fed.Appx. 810 was dismissed as frivolous. Mehdipour v. Oklahoma County Board of County Commissioners, DC. No. CIV-99-2983-T from the Western District Court of Oklahoma, was dismissed for failure to state a claim and the decision was affirmed on appeal, No. 00-6351 in the 10th Circuit. The Federal Rules of Appellate Procedure, 10th Cir. Rule 27.3 authorize the clerk to act on behalf of the court for certain motions which include proceedings in forma pauperis under Federal Rules of Appellate Procedure, 10th Cir. Rule 24.

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . Id.

      . Mehdipour relies upon the United States Const. Amendment 14, § 1 which provides in pertinent part:
      "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

      .In addition to citing the Okla. Const, art. 2, § 6, see note 2, supra, Mehdipour also cites to the Okla. Const, art 2, § 7 which provides:
      "No person shall be deprived life, liberty, or property, without due process of law.”
      Mehdipour also insists, for the first time on appeal And offers no explanation why, that the statute as applied by the trial court conflicts with the Okla. Const, art 2, § 15, 12 O.S. Supp.2002 § 2003.1(A) and violates 21 O.S.2001 § 68. The Okla. Const, art 2, § 15 provides:
      "No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed. No conviction shall work a corruption of blood or forfeiture of estate: Provided, that this provision shall not prohibit the imposition of pecuniary penalties.”
      Title 12 O.S. Supp.2002 § 2003.1(A) provides in pertinent part:
      “Petitions, motions, or other pleadings filed by an inmate as defined in paragraph 2 of subsection B of Section 566 of Title 57 of the Oklahoma Statutes appearing pro se shall be on forms approved by the district court and supplied without charge by the clerk of the district court upon request ...”
      Title 21 O.S.2001 § 68 provides:
      "No conviction of any person for crime works any forfeiture of any property, except in the cases of any outlawry for treason, and other cases in which a forfeiture is expressly imposed by law.”
      Because these arguments were raised for the first time on appeal, we need not address them. Ful-

        som v. Fulsom, 2003 OK 96, ¶ 5, n. 5, 81 P.3d 652; Niemeyer v. United States Fidelity and Guaranty Co., 1990 OK 32, ¶ 12, 789 P.2d 1318; Mothershed v. Mothershed, 1985 OK 23, ¶ 23, 701 P.2d 405.

      . Okla. Const, art 2, § 6, see note 1, supra.

      . Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). But see, Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996) ["Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.”].

      . See, M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 565, 136 L.Ed.2d 473 (1996)[Indigent mother’s right to appeal judgment terminating parental rights on prepayment of cost was unconstitutional.]; Boddie v. Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971)[Indigent must be given access to courts in divorce action.]; Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961)[Indigent prisoner may not be required to pay a filing fee for petitioning for a writ of habeas corpus.]. But see, Ortwein v. Schwab, 410 U.S. 656, 658, 93 S.Ct. 1172, 1174, 35 L.Ed.2d 572 (1973)[No constitutional violation in requiring payment of appellate filing fee by indigents seeking review of adverse welfare decision.]; United States v. Kras, 409 U.S. 434, 439, 93 S.Ct. 631, 635, 34 L.Ed.2d 626 (1973)[No constitutional violation in requiring payment of filing fee by indigent, in bankruptcy ation.]. Other states who have access to court constitutional provisions similar to Oklahoma's have recognized that only lawsuits concerning fundamental rights require waiver of the filing fee. See, e.g., Martin v. State, 321 S.C. 533, 471 S.E.2d 134, 135 (1995)[Judge must make ruling whether complaint fits within one of statutory exceptions or whether cause concerns fundamental right requiring waiver.]; Tahtinen v. Superior Court, 130 Ariz. 513, 637 P.2d 723, 724 (1981), cert. denied by Mendibles v. Superior Court of Pinal County, 454 U.S. 1152, 102 S.Ct. 1021, 71 L.Ed.2d 308 (1982)[Refusal to waive fees did not infringe fundamental right.]; State ex rel. Lindell v. Litscher, 2003 WI App 36, 260 Wis.2d 454, 659 N.W.2d 413, 415 (2003)[A litigant's right to proceed without prepayment of fees in any civil matter not implicating a fundamental right is legislative privilege, not constitutionally guaranteed right.].

      . The Okla. Const, art 2, § 7, see note 9, supra; United States Const. Amendment 14, § 1, see note 8, supra.

      . Shieh v. Kakita, 517 U.S. 343, 116 S.Ct. 1311, 134 L.Ed.2d 464 (1996)[Clerk directed not to accept further petitions for certiorari in noncriminal matters without prepayment of docketing fees.]; Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992)[Clerk directed not to accept further' petitions for certiorari in noncriminal matters without prepayment of docketing fees.]; In re Sindram, 498 U.S. 177, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991)[Access to proceed before the courts in forma pauperis is a privilege, not a right which can be revoked if a litigant evinces a history of abusing the judicial system while exercising that privilege.]; In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989).

      . Cotner v. Creek County Dist. Court, 1996 OK CR 3, ¶ 58, 911 P.2d 1215. The Oklahoma Court of Civil Appeals declined to restrict a prisoner's filings, but left the matter to the district court in Lowe v. Cantrell, 2000 OK CIV APP 27,¶ 5, 1 P.3d 438. Although we have not issued such orders, we do take judicial notice that the appellate docket shows numerous pleadings by several prisoners. For instance, since 1994, Mehdipour and B.J. Stouffer have filed over 30 filings each and Ronald Dean Lowe has filed over 110 filings in the appellate docket.

      . For example, the Nebraska Supreme Court in State ex rel. Tyler v. Douglas Co. Dist. Court, 254 Neb. 852, 580 N.W.2d 95, 99 (1998), upheld the limiting of an inmate's filings to one per month as not unreasonably restricting the litigant's access to courts under the state constitution. The Ohio Court of Appeals in State ex rel. Richard v. Cuyahoga County Board of Commissioners, 100 Ohio App.3d 592, 654 N.E.2d 443, 446 (1995), which has an access to courts provision like Oklahoma's, denied a prisoner in forma pauperis status in connection with excessive filings. The rationale that the right to access to courts does not include the right to impede the normal functioning of the judicial process, along with the recognition of the need to tailor the remedy narrowly so as not to prospectively shut the courthouse door was also recognized in an unpublished opinion in Hattie v. Andrews, 1998 WL 240501 (Ohio App.1998). Similarly, Delaware courts, in unpublished opinions, have also recognized that the ability of courts to restrict the use of in forma pauperis filings does not violate access to courts. See, Walls v. Delaware State Police, 599 A.2d 414, 1991 WL 134488 (Del. Supr.1991); Lee v. Johnson, 1996 WL 944868 (Del.Super.1996). Although access to courts was not discussed, the Supreme Court of South Carolina in In re Maxton, 325 S.C. 3, 478 S.E.2d 679 (1996) ordered that because an inmate had submitted 64 frivolous pro se petitions over the previous three years, the inmate was required to prepay fees and show good faith before proceeding. However, some courts have issued such orders which have been determined too extreme or overbroad. See, State ex rel. Woods v. State, 731 So.2d 873 (La.1999); Ex parte Magouirk, 804 So.2d 308 (Ala.Crim.App.2000).

      . Okla. Const, art 2, § 6, see note 1, supra.

      . Rollings v. Thermodyne Indus., Inc., 1996 OK 6, ¶ 9, 910 P.2d 1030 [Okla. Const, art 2, § 6, see note 1, supra, has most often been used to ensure, regardless of status, that equal access to courts is permitted.]. The right to a remedy guarantee is a mandate to the judiciary and is not intended to be a limitation on the authority of the Legislature. The constitutional guarantee mandates that the courts should be open and afford a remedy for those wrongs that are recognized by the law of the land. Rivas v. Parkland Manor, 2000 OK 68, ¶ 18, 12 P.3d 452. Section 6, see note 1, supra, requires that the courts be open to all on the same terms without prejudice. Woody v. State ex rel. Dept. of Corrections, 1992 OK 45, ¶ 9, 833 P.2d 257.

      . Kordis v. Kordis, 2001 OK 99, ¶ 7, 37 P.3d 866; Shabazz v. Keating, 1999 OK 26, ¶ 14, n. 26, 977 P.2d 1089; Gaines v. Maynard, 1991 OK 27, ¶ 6, 808 P.2d 672; Johnson v. Scott, 1985 OK 50, ¶ 10, 702 P.2d 56.

      . The statute at question in Mehdipour v. Wise, 2003 OK 3, 65 P.3d 271, was 21 O.S.2001 § 65 which provides in pertinent part:
      "A sentence of imprisonment under the Department of Corrections suspends all the civil rights of the person sentenced ...”

      . See, Kordis v. Kordis, note 19, supra [Recognizing serious constitutional questions if inmates were deprived of the capacity to enforce vested property rights.]; Sholer v. State ex rel. Dept. of Public Safety, 1995 OK 150, ¶ 47, 945 P.2d 469 [Error to deny right to be designated a class representative because convicted felon.]; Davis v. Pullium, 1971 OK 47, ¶ 10, 484 P.2d 1306 [Rejecting notion that "civil death” of a convicted felon included incapacity to initiate a civil suit for personal injuries.]; Grooms v. Thomas, 1923 OK 825, ¶ 4, 219 P. 700 [Upholding the right of a person convicted of a felony to convey title to real property and inherit an estate.]. See also, Harmon v. Harmon, 1997 OK 91,¶ 16, 943 P.2d 599 [Incarcerated spouse entitled to participate in divorce and custody proceedings.]; Lowe v. Monard, 1997 OK 100, 942 P.2d 732 [Inmates petition may be returned only if fails to comply with statutory requirements for certain information.]; Harris v. State ex rel. Macy, 1992 OK 6, 825 P.2d 1320 [Court may not dismiss inmate suit for failure to appear.]; Johnson v. Scott, see note 19, supra [Dismissal of small claims case violated constitution.].

      . The Oklahoma Court of Civil Appeals has recognized that the fact that there are limits on the extent to which prisoners may secure financial assistance from the state or its prison authorities for conducting all manners of litigation does not amount to an infringement of their right to access to courts. Stouffer v. Ward, 1998 OK CIV APP 82, ¶ 10, 959 P.2d 985.

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . Title 28 U.S.C.A. § 1915(a)(1) (1996) provides:
      "Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.”

      . Title 28 U.S.C.A. § 1915(b) (1996) provides:
      ."(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of-
      (A) the average monthly deposits to the prisoner’s account; or
      (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
      (2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.”

      . Title 28 U.S.C.A. § 1915(4) (1996) provides:
      “In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."

        . Higgins v. Carpenter, 258 F.3d 797, 801 (8th Cir.2001) cert. denied by Early v. Harmon, 535 U.S. 1040, 122 S.Ct. 1803, 152 L.Ed.2d 659 (2002)[Does not violate Equal protection.]; Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir.1999)[No access to court, due process, or equal protection violation.]; White v. State of Colorado, 157 F.3d 1226, 1233 (10th Cir.1998) cert. denied. 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 216 (1999)[No access to court or equal protection violation.]; Rivera v. Allin, 144 F.3d 719, 726 (11th Cir.1998) cert. denied 524 U.S. 978, 119 S.Ct. 27, 141 L.Ed.2d 787 (1998)[No violation for access to court, due process or equal protection.]; Wilson v. Yaklich, 148 F.3d 596, 603 (6th Cir.1998) cert. denied 525 U.S. 1139, 119 S.Ct., 1028, 143 L.Ed.2d 38 (1999)[No due process or equal protection violation.]; Carson v. Johnson, 112 F.3d 818, 821 (5th Cir.1997)[No equal protection, due process or access to court violation.]. Other cases have addressed the constitutionality of 28 U.S.C.A. § 1915 generally, and upheld the statute as constitutional. Tucker v. Branker, 142 F.3d 1294, 1299 (D.C.Cir.1998)[No violation of constitutional right of access to court, due process or equal protection.]; Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir.1997)[No violation of constitutional right of access to court, due process or equal protection.]; Norton v. Dimazana, 122 F.3d 286, 289 (5th Cir.1997) cert. denied 517 U.S. 1213, 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996)[Fee provisions do not violate access to courts.]; Shabazz v. Parsons, 127 F.3d 1246, 1248 (10th Cir.1997) [Fee provisions are constitutional.]; Roller v. Gunn, 107 F.3d 227, 233 (4th Cir.1997) cert. denied 522 U.S. 874, 118 S.Ct. 192, 139 L.Ed.2d 130 (1997)[Does not violate access to courts or equal protection.]; Nicholas v. Tucker, 114 F.3d 17, 21 (2nd Cir.1997) cert. denied 523 U.S. 1126, 118 S.Ct. 1812, 140 L.Ed.2d 950 (1998)[No denial of access to courts or equal protection.]; Losee v. Maschner, 113 F.Supp.2d 1343, 1354 (S.D.Iowa 1998)[Does not violate access to courts.]. See also, Lucien v. DeTella, 141 F.3d 773, 775 (7th Cir.1998)[Fee provisions within Congress' power.]. See generally, M.A. Shields, "Validity and Construction of the 'Three Strikes’ rule under 28 U.S.C.A. § 1915(g) Barring Prisoners from In Pauperis Filing of Civil Suit After Three Dismissals for Frivolity" 168 A.L.R. Fed 433. Other states with access to 'court provisions have also generally determined similar statutory schemes constitutional under access to court, due process, or equal protection challenges. See, Longval v. Superior Court Department of the Trial Court, 434 Mass. 718, 752 N.E.2d 674, 677 (2001); Smith v. McKune, 31 Kan.App.2d 984, 76 P.3d 1060 (2003); State ex rel. Lindell v. Litscher, see note 12, supra; State ex rel. Tayr Kilaab Al Ghashiyah v. Sullivan, 2000 WI App. 109, 235 Wis.2d 260, 613 N.W.2d 203, 207 (2000). Florida determined a portion of their similar state statute was unconstitutional in Mitchell v. Moore, 786 So.2d 521, 524 (2001) [Statute requiring inmates to submit copies of complaints for preceding five years before determining indigency status over burdensome and unconstitutional.]. At least two lower federal courts have determined the statute unconstitutional as violative of the equal protection rights of prisoners. Ayers v. Norris, 43 F.Supp.2d 1039 (E.D.Ark.1999) abrogated by Higgins v. Carpenter, supra. [Because fundamental interest was at stake, “three strikes” provision violates equal protection clause.]; Lyon v. Vande Krol, 940 F.Supp. 1433 (S.D.Iowa 1996)[Statute violates equal protection rights of prisoners proceeding in forma pauperise.

      . Rodriguez v. Cook, see note 27, supra; White v. State of Colorado, see note 27, supra; Rivera v. Allin, see note 27, supra; Carson v. Johnson, see note 27, supra.

      . Rodriguez v. Cook, see note 27, supra; Rivera v. Allin, see note 27, supra.

      . Rodriguez v. Cook, see note 27, supra; White v. State of Colorado, see note 27, supra; Rivera v. Allin, see note 27, supra; Carson v. Johnson, see note 27, supra.

      . Id.

      . See, Higgins v. Carpenter, note 27, supra; Rodriguez v. Cook, note 27, supra; Rivera v. Allin, note 27, supra; Tucker v. Branker, note 27, supra; Carson v. Johnson, note 27, supra; Wilson v. Yaklich, note 27, supra.

      . Id.

      . Id.

      . Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 30, 977 P.2d 1040; Dority v. Green Country Castings Corp., 1986 OK 67, ¶ 11, n. 24, 727 P.2d 1355; Phillips v. Williams, 1980 OK 25, ¶ 10, 608 P.2d 1131 cert. denied by Shabazz v. Williams, 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 (1980).

      . See, Payne v. Dewitt, 1999 OK 93, ¶ 8, 995 P.2d 1088; McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 7, 979 P.2d 252; Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 21, 958 P.2d 128 [Recognizing that federal case law provides a logical framework for determining the scope of the protection guaranteed by Oklahoma constitutional law.]. Oklahoma due process clause has definitional sweep that is coextensive with its federal counter part. Gladstone v. Bartlesville Independent School Dist. No. 30, 2003 OK 30, ¶ 6, n. 16, 66 P.3d 442.

      . We have previously looked to federal rational for state constitutional questions. See, Woody v. State ex rel. Department of Corrections, note 18, supra; Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶ 15, 613 P.2d 1041.

      . Title 28 O.S. Supp.2003 § 152 governs in forma pauperis proceedings generally and allows litigants who are unable to pay fees and costs in civil actions to proceed without payment of fees and costs. However, prisoners are specifically governed by a statutory scheme aimed at regulating prisoner lawsuits. See generally, 57 O.S. 2001 §§ 564-566.4.

      . Title 57 O.S. Supp.2002 § 566.3 provides in pertinent part:
      "A. 1. If an applicant for in forma pauperis is a prisoner and the prisoner brings an action of any kind, upon filing, the court shall order the prisoner to pay, as a partial payment of any court costs required by law, before the commencement of the action, a first-time payment of twenty percent (20%) of the deposits of the preceding six (6) months to the trust account of the prisoner administered by the confining agency and thereafter monthly payments of twenty percent (20%) of the deposits of the preceding month to the account, but only if the prisoner does not have enough funds to pay the total costs required by law at the time of filing. In those cases where the prisoner has sufficient funds available, the prisoner shall be ordered to pay the required costs before the action may commence ...
      4. If a prisoner is found to be indigent and totally without any funds pursuant to this section at the time of filing, the case may proceed without prepayment of fees or partial fees. Even in those cases where the court finds the prisoner is without funds, the court shall assess costs against the prisoner, establish a payment schedule and order the costs paid when the prisoner has funds

      . Id.

      . See, 57 O.S. Supp.2002 § 566.

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . The Okla. Const, art. 2, § 6, see note 2, supra.

      . Howe v. Federal Surety Co., 1932 OK 730, ¶ 14, 17 P.2d 404; In re Lee, 1917 OK 458, ¶ 17, 168 P. 53. See also, Moses v. Hoebel, 1982 OK 26, ¶ 11, n. 16, 646 P.2d 601[Court costs prescribed by law are excluded from the "Interdiction-of-Sale-of-Justice" clause of art. 2, § 6 of the Okla. Const, because they are fixed in advance and exacted from litigants on an equal basis.].

      . Mahorney v. Moore, 2002 OK 39, ¶ 8, 50 P.3d 1128; Smith v. Moore, 2002 OK 49, ¶ 6, 50 P.3d 215; Cumbey v. State, 1985 OK 36, ¶ 5, 699 P.2d 1094 cert. denied by Jackson v. Oklahoma, 474 U.S. 838, 106 S.Ct. 115, 88 L.Ed.2d 94 (1985). Court costs are imposed primarily to recoup costs for the state and they serve as a mechanism for judicial resource allocation. Elam v. Workers' Compensation Court, 1983 OK 16, ¶ 8, 659 P.2d 938.

      . Mahorney v. Moore, see note 45, supra; Smith v. Moore, see note 45, supra. See also, Foust v. Pearman, 1992 OK 135, ¶ 9, 850 P.2d 1047 [Relying on federal case law, the Court determined that a prisoner could not be required to pay all the funds on deposit.].

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . Higgins v. Carpenter, see note 27, supra; Rodriguez v. Cook, see note 27, supra; White v. State of Colorado, see note 27, supra; Rivera v. Allin, see note 27, supra; Tucker v. Branker, see note 27, supra; Carson v. Johnson, see note 27, supra.; Wilson v. Yaklich, see note 27, supra.

      . Oklahoma has long recognized the constitutional right to proceed as a pauper in criminal proceedings. Jeffries v. State, 9 Okla.Crim. 573, 1913 OK CR 146, 132 P. 823. This cause is limited to the civil context. We note that, Meh-dipour is not destitute. Although his pauper’s affidavit for the trial court was not included in the record, the affidavit he filed on appeal shows a savings balance of $45.00. Additionally, he is not seeking to advance a matter in which some constitutional fundamental interest is at stake such as a divorce proceeding or termination of parental rights. See, State ex rel. McCalister v. Graham, 1975 OK 17, ¶ 10, 531 P.2d 1367(1975)[Indigents have a constitutional right to proceed in divorce action without payment of court fees.]. Application of 57 O.S.2001 § 566.2, see note 1, supra, to those types of actions remains for determination for another day.

      . Our holding with regard to the state constitutional questions is based on Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983).

      . Title 57 O.S. Supp.2002 § 566.3 see note 39, supra.

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . Everyone is presumed to know the law. Nottingham v. City of Yukon, 1988 OK 130, ¶ 11, 766 P.2d 973; Halstead v. McHendry, 1977 OK 131, ¶ 12, 566 P.2d 134; Gibson v. Mendenhall, 1950 OK 276,¶ 15, 224 P.2d 251.

      . Gladstone v. Bartlesville Independent School Dist. No. 30, see note 36, supra; State ex rel. Oklahoma State Bureau of Investigation v. Warren, 1998 OK 133, ¶ 25, 975 P.2d 900; Naylor v. Petuskey, 1992 OK 88, ¶ 3, n. 2, 834 P.2d 439.

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . Higgins v. Carpenter, see note 27, supra; Rodriguez v. Cook, see note 27, supra; White v. State of Colorado, see note 27, supra; Rivera v. Allin; Tucker v. Branker, see note 27, supra; Carson v. Johnson, see note 27, supra.; Wilson v. Yaklich, see note 27, supra.

      . Blythe v. University of Oklahoma, 2003 OK 115, ¶ 8, n. 10, 82 P.3d 1021; Fulsom v. Fulsom, see note 8, supra; City of Tulsa v. Public Employees Relations Board, 1998 OK 92, ¶ 18, 967 P.2d 1214.

      . Title 57 O.S. Supp.2002 § 566.3 see note 39, supra.

      . Title 57 O.S.2001 § 566.2, see note 1, supra.

      . The terms of 57 O.S.2001 § 566.2 are:
      "A. A prisoner who has, on three or more prior occasions, while incarcerated or detained in any facility, or while on probation or parole, brought an action or appeal in a court of this state or a court of the United States that has been dismissed on the grounds that the case was frivolous, or malicious, or failed to state a claim upon which relief could be granted, may not proceed in a matter arising out of a civil case, or upon an original action or on appeal without prepayment of all fees required by law, unless the prisoner is under immediate danger of serious physical injury. * * * "

      . Shabazz v. Keating, 1999 OK 26, 977 P.2d 1089, 1095.

      . I would neither analyze nor even mention here any equal-protection jurisprudence. Because that Fourteenth Amendment's clause is not tendered for today's testing, I would not speculate either on the viability or applicability of Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Williams v. Illinois, 399 U.S. 235, 240, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Legislative classification which sets apart a class without any rational basis for its severance from other classes may offend the equal protection clause. If legislative classification is found to be imper-missibly narrow, it is subject to judicial condemnation as "underinclusive''. Orr v. Orr, 440 U.S. 268, 272, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979); Stanton v. Stanton, 421 U.S. 7, 13-14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688 (1975); See also Wilson v. Foster, 1979 OK 45, 595 P.2d 1329, 1332.


source: Caselaw Access Project

author: LILE, Vice Presiding Judge. CHAPEL, J., STRUBHAR, J.,

license: Public Domain

text:
    2004 OK CR 21
    Rodney Eugene EASLICK, Appellant, v. STATE of Oklahoma, Appellee.
    No. F 2003-70.
    Court of Criminal Appeals of Oklahoma.
    May 3, 2004.

      Anthony McKesson, Assistant Public Defender, Oklahoma City, OK, attorneys for defendant at trial.
    Ashley Altshuler, Assistant District Attorney, Oklahoma City, OK, attorneys for the State at trial.
    Wendell B. Sutton, Assistant Public Defender, Oklahoma City, OK, attorney for appellant on appeal.
    W.A. Drew Edmondson, Oklahoma Attorney General, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.
   SUMMARY OPINION

LILE, Vice Presiding Judge.

¶ 1 Appellant, Rodney Eugene Easlick, was convicted, after a jury trial, of Trafficking in Illegal Drugs (Cocaine Base), after former conviction of one felony, in Oklahoma County Case No. CF-2001-1430, before the Honorable Susan P. Caswell, District Judge. Judge Caswell sentenced Appellant to forty-five years imprisonment after the jury failed to agree on a sentence. Appellant has perfected his appeal of the Judgment and Sentence to this Court.

¶ 2 Appellant raises the following propositions of error in support of his appeal:

1. Mr. Easlick’s conviction for Trafficking in Illegal Drugs must be reversed and remanded with instructions to dismiss because the State presented insufficient evidence to prove beyond a reasonable doubt the essential elements of knowledge and possession.
2. Mr. Easlick’s rights under the Sixth and Fourteenth Amendments, article II, §§ 7 & 20 of the Oklahoma constitution, and Okla. Stat. Tit. 22, §§ 583, 912 (2001), were violated when, prior to the impaneling and swearing of the jury, the trial court held his trial in abstentia over objection.
3. Mr. Easlick’s 45-year sentence was based on irrelevant and/or improper factors thus requiring a sentence modification.

¶ 3 After thorough consideration of the entire record before us on appeal, we have determined that Appellant’s convictions should be AFFIRMED.

¶4 In reaching our decision, we find, in proposition one, that there was sufficient evidence to exclude every reasonable hypothesis but guilt. Jackson v. State, 1998 OK CR 39, 964 P.2d 875. We also take this opportunity to reexamine our antiquated dual testing procedure on the sufficiency of the evidence depending on the type of evidence relied on; circumstantial or direct. We find it is time that we abolish the “reasonable hypothesis” test and adopt a unified approach in examining sufficiency issues.

¶ 5 Thirty-two states and all of the federal circuits utilize a unified approach when examining the sufficiency of the evidence. These tests are based on the test found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970):

Whether after reviewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.

¶ 6 The reasonable hypothesis test was formed at a time when circumstantial evidence was universally distrusted. See Commonwealth v. Webster, 59 Mass. 295, 296 (1850) (first reference to a reasonable hypothesis test). However, given the current instructions defining direct and circumstantial evidence, the equal footing on which both types of evidence stand, along with the strength of the reasonable doubt standard, the fear of circumstantial evidence becomes unfounded.

¶ 7 In Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954), the Supreme Court held, if a proper reasonable doubt instruction is given, a jury need not be instructed that circumstantial evidence must.be so strong as to exclude every reasonable hypothesis other than guilt.

¶ 8 The Supreme Court reasoned that:

[I]n both instances the jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

Holland, 348 U.S. at 140, 75 S.Ct. at 137. The Court admits that circumstantial evidence may point to a wholly incorrect result, but they point out that the same could be said of testimonial evidence. Id. Direct evidence, whether in the form of eye witness testimony, or exhibits may point to an incorrect result.

¶ 9 However, in both cases a jury is asked to consider the evidence, “draw such reasonable inferences from the testimony and exhibits as you feel are justified when considered with the aid of the knowledge which you each possess in common with other persons ... make deductions and reach conclusions which reason and common sense lead you to draw from the fact which you find to have been established by the testimony and evidence in the case.” OUJI-CR 2d 9-1 (1996), see Holland, 348 U.S. at 140, 75 S.Ct. at 137-38.

¶ 10 The earliest case in Oklahoma utilizing the “reasonable hypothesis” test is Sies v. State, 6 Okl.Cr. 142, 117 P. 504 (1911). This Court set forth the test as follows:

If the facts and circumstances are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient evidence to support a conviction. The general rule in criminal cases is that, where the evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence.

Id. 117 P. at 505. In Sies, the defendant was found with a marked one-dollar bill which agents gave a witness to purchase whisky. However, the witness testified that he did not directly purchase whisky from Sies. These facts only raised a mere suspicion regarding the guilt of the defendant. The same result would have been reached had this Court utilized the test found in Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04.

¶ 11 There is no difference in the weight given circumstantial evidence or. direct evidence. See OUJI-CR 2d 9-4 (1996)(“the law makes no distinction between the weight to be given to either direct or circumstantial evidence”); also see Gilbert v. State, 1997 OK CR 71, 951 P.2d 98, 120 (where the prosecutor told the jury that circumstantial evidence should not be considered inferior to direct evidence, this Court held that the comment was a correct statement of the law). Despite this view, this Court still utilizes two separate tests for the weighing of circumstantial evidence versus direct evidence when it comes to the sufficiency of evidence in a criminal case.

¶ 12 In a more recent case, White v. State, 1995 OK CR 15, 900 P.2d 982, 994, the special concurrence points out that the “dichotomy stems from an antiquated notion” that direct evidence is more valuable than circumstantial evidence. A more uniform standard is necessary to reduce jury confusion and to underscore the belief that there is no difference in the weight to be given circumstantial evidence and direct evidence.

¶ 13 In New Jersey v. Mayberry, 52 N.J. 413, 245 A.2d 481, 493 (1968), citing People v. Sullivan, 22 Ill.2d 122, 174 N.E.2d 860, 861 (1962), the Court made an astute observation-when it stated that it is clear that the standard of the “reasonable hypothesis” test excluding all theories of innocence, “was never applied literally, for if it had been it would have unreasonably defeated many legitimate prosecutions based on circumstantial evidence where it was possible to devise speculative hypothesis consistent with the defendant’s innocence.”

¶ 14 The Court went on to say that:

[T]he proper issue is simply whether the evidence, viewed in its entirety including the legitimate inferences there from, is sufficient to enable a jury to find that the state’s charge has been established beyond a reasonable doubt.

Id. The Supreme Court of Vermont stated:

In determining whether there is sufficient evidence to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt, trial and appellate courts face a difficult task. Judicial scrutiny of evidentiary sufficiency requires courts to make complex, subjective decisions. This enterprise is ill served by reliance upon the discredited suspicion of circumstantial evidence. The proper focus of judicial review should be the quality and strength of the evidence, whether direct or circumstantial.

Vermont v. Derouchie, 140 Vt. 437, 440 A.2d 146, 150 (1981).

¶ 15 Because the “reasonable hypothesis” test is based on antiquated ideas concerning the value of circumstantial evidence and because we have a test that can be utilized in a universal manner, the “reasonable hypothesis” test should meet its demise in this State in accord with the vast majority of jurisdictions. The Spuehler test for insufficiency , is broad enough to utilize when weighing evidence, both circumstantial and direct. Therefore, in the future, we will review sufficiency of evidence issues under the Spuehler standard, regardless of whether the evidence is wholly circumstantial or whether it is based in whole or in part on direct evidence.

¶ 16 In proposition' two, we find that Appellant voluntarily waived his right to be present during trial by failing to appear on the second day of trial, during voir dire proceedings. Gregg v. State, 1992 OK CR 82, 844 P.2d 867, 876-77; Bowie v. State, 1991 OK CR 78, 816 P.2d 1143, 1147.

¶ 17 In proposition three we find that the sentence does not shock the conscience of this court, and there is no evidence that the trial court abused its authority in determining punishment. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149; Riley v. State, 1997 OK CR 51, 947 P.2d 530, 535; Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 291.

DECISION

¶ 18 The Judgment and Sentence of the trial court is AFFIRMED.

JOHNSON, P.J. and LUMPKIN, J., concur.

CHAPEL and STRUBHAR, JJ., dissent.

CHAPEL, J.,

Dissenting:

¶ 1 The majority here finally has jettisoned the protection afforded by this Court’s long adherence to differing standards of review for direct and circumstantial evidence. Since shortly after statehood, this Court has consistently required that a conviction based on circumstantial evidence alone requires exclusion of every reasonable hypothesis other than guilt. This is more stringent than the standard for direct evidence, which reviews whether, taking the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt. The majority suggests this distinction is “antiquated”. However, nothing about the basic nature of this evidence has changed. The different standards of review are justified by the essential difference in the nature of each type of evidence.

¶2 The majority appears to believe our distinction in standard of review of direct and circumstantial evidence is pointless. The majority emphasizes that juries are properly told to give the same weight to both types of evidence. This does not mean that there is no difference between the two types of evidence. Of course there is. Direct evidence may be an eyewitness account or physical object — is, in fact, anything which “proves the existence of the fact in issue without inference or presumption.” Circumstantial evidence consists of a series of facts or occurrences from which one may infer a particular thing has happened. “The distinction to be made is that direct evidence/testimony requires no inference to be made: the particular piece of evidence or testimony is the proof. Circumstantial evidence requires that a reasonable inference be drawn....”

¶ 3 While the two types of evidence are equally probative, one requires a leap in reasoning that the other does not. They are fundamentally different. The majority recognizes this, noting that historically circumstantial evidence was “universally distrusted”. There is a reason for this distrust. We have required a different standard of proof for circumstantial evidence precisely because, as the majority again recognizes, it may “point to a wholly incorrect result.” Circumstantial evidence presents the very real danger that an innocent defendant will be convicted purely on jurors’ wrong impressions or inferences from competing circumstances. This is vitally important because, as commentators have noted, circumstantial evidence is both the most common type of evidence and, often, the most critical evidence in a case. I agree with Justice Boslaugh, of the Nebraska Supreme Court, who noted: “If the inferences to be drawn from particular facts are equally consistent with guilt ■ or innocence, then it should be clear that those facts alone are not sufficient to support a finding of guilt beyond a reasonable doubt.”

¶ 4 Judge Furman, writing for this Court in 1912, presented an excellent analysis of the necessity for the reasonable hypothesis standard:

“All evidence is largely circumstantial, and even when most direct it depends upon circumstances for its credibility, weight, and effect.... In cases' depending upon circumstantial evidence, witnesses may swear falsely as to the circumstances relied upon; but experience shows that it is impossible to fabricate consistency in the circumstances themselves,' where many facts are involved. As the law requires, in cases of circumstantial evidence, that the facts or circumstances proven to be true must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence, the impossibility of fabricating consistency in the circumstances makes this class of evidence as safe and reliable as human testimony can become.”

¶ 5 The majority takes as its starting point Holland v. United States. Closer examination of this case does not suggest it either requires or supports a change in Oklahoma law. Holland does not announce a constitutional rule and is not binding on this Court. It merely interprets a federal evidentiary rule. Holland parsed the narrow issue of determination of net worth for a tax evasion prosecution, but included the sweeping language cited by the majority. However, the Supreme Court did not simply conclude a reasonable hypothesis instruction was unnecessary. Rather, it explicitly stated that the instruction was not necessary “where the jury is properly instructed on the standards for reasonable doubt.” Holland did not suggest what a proper instruction on reasonable doubt might be. In other cases, the Supreme Court has indicated that reasonable doubt is “one based on reason which arises from the evidence or lack of evidence,” an abiding conviction of guilt and a moral certainty, and not a mere possible doubt. The Supreme Court has stated that the Constitution does not require trial courts to give any particular instruction on the meaning of reasonable doubt, as long as the instructions taken as a whole correctly convey the concept of reasonable doubt to the jury.

¶ 6 This Court, of course, has consistently refused to allow judges or attorneys to attempt to define reasonable doubt for jurors. I am not suggesting we should require, or allow, an explicit definition of that term. However, in the absence of some definition of reasonable doubt, our jury instructions do not seem to me to be sufficiently precise to ensure that a jury is “properly instructed” for Holland purposes. Other courts have addressed this problem. When Texas adopted a unified standard of review, the Texas Court of Criminal Appeals recognized the Holland emphasis proper instruction on reasonable doubt, and simultaneously adopted an instruction defining reasonable doubt. The Missouri Supreme Court, adopting a unified standard, commented, “We have honed -our reasonable doubt instruction with legal analysis brought on by decades of defendants’ attacks coming from every point of the compass. We believe the reasonable doubt instruction fully and accurately instructs the jury on the risk of non-persuasion.”

¶ 7 The majority also cites cases from several other jurisdictions as a basis for its decision. The cases cited for Mississippi and South Dakota each actually reaffirm those states’ continued use of the reasonable hypothesis test for circumstantial evidence. Oregon also uses the reasonable hypothesis test. Several states use a unified test for both circumstantial and direct evidence because they require “substantial evidence”, and do not further distinguish the two types of evidence. However, in Montana, “substantial evidence” requires that “the facts and circumstances must not only be entirely consistent with the theory of guilt, but must be inconsistent with any other rational (i.e.reasonable) conclusion.” Similarly, Connecticut requires proof beyond a reasonable doubt, but notes that circumstantial evidence must exclude any reasonable supposition of innocence. Several states relied on Holland, Jackson v. Virginia, or a combination of the two in adopting a unified test. Utah, while adopting a unified standard, allows but does not require a jury instruction on the reasonable hypothesis test in circumstantial evidence cases. Even if this Court were to be swayed by the practice of other jurisdictions, this history hardly appears to either justify or require a change in Oklahoma law.

¶ 8 The majority offers no reason to suddenly change course. Holland was decided in 1954 and is not new to this Court. We have also known for some time of the federal courts’ standard of review, and that of other states. Despite numerous opportunities to adopt a “unified”, lesser standard of review, Oklahoma has consistently chosen to impose a higher standard of review, requiring more stringent appellate analysis, in eases based entirely on circumstantial evidence. Neither the nature of the evidence nor the law has changed; only the makeup of this Court is different. It appears that the majority is once again disregarding years of precedent and unnecessarily changing Oklahoma law in order to impose a particular view of the law. I dissent.

STRUBHAR, J.,

Dissenting.

¶ 1 I dissent. There is no reason for this Court to adopt a new procedure on the questions presented to us on sufficiency of the' evidence. The different standards of review now utilized are indeed justified.

      . State v. McDonald, 872 P.2d 627 (Alaska App.1994); State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985); People v. Miller, 50 Cal.3d 954, 269 Cal. Rptr. 492, 790 P.2d 1289 (1990); People v. Wyles, 873 P.2d 34 (Colo.App.1994); State v. Reynolds, 264 Conn. 1, 824 A.2d 611 (2003); Hoey v. State, 689 A.2d 1177 (Del.1997); State v. Bright, 64 Haw. 226, 638 P.2d 330 (1981); State v. Ponthier, 92 Idaho 704, 449 P.2d 364 (1969); People v. Shevock, 335 Ill.App.3d 1031, 270 Ill.Dec. 390, 782 N.E.2d 949 (2003); People v. Pollock, 202 Ill.2d 189, 269 Ill.Dec. 197, 780 N.E.2d 669 (2002); Loyd v. State, 787 N.E.2d 953 (Ind.App.2003); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); Bussell v. Com., 882 S.W.2d 111 (Ky.1994); Bryant v. State, 142 Md.App. 604, 791 A.2d 161 (2002); Com. v. Gendraw, 55 Mass.App. Ct. 677, 774 N.E.2d 167 (2002); People v. Hardiman, 466 Mich. 417, 646 N.W.2d 158 (2002); Cox v. State, 849 So.2d 1257 (Miss.2003); State v. Williams, 66 S.W.3d 143 (Mo.App.2001); State v. Landis, 308 Mont. 354, 43 P.3d 298 (2002); State
        v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998); State v. Swint, 328 N.J.Super. 236, 745 A.2d 570 (App.2000); State v. Bankert, 117 N.M. 614, 875 P.2d 370 (1994); State v. Haselden, 357 N.C. 1, 577 S.E.2d 594 (2003); State v. Treis, 597 N.W.2d 664 (N.D.1999); State v. McCarthy, 99 Ohio Misc.2d 11, 714 N.E.2d 475 (1999); State v. Carson, 292 Or. 451, 640 P.2d 586 (1982); Com. v. Robertson-Dewar, 829 A.2d 1207 (Pa.Super.2003); Com. v. Newsome, 787 A.2d 1045 (Pa.Super.2001); State v. Kaba, 798 A.2d 383 (R.I.2002); State v. Guthrie, 627 N.W.2d 401 (S.D.2001); Hayward v. State, 117 S.W.3d 5 (Tex.App.2003); State v. Span, 819 P.2d 329 (Utah 1991); State v. Couture, 169 Vt. 222, 734 A.2d 524 (1999); State v. Israel, 113 Wash.App. 243, 54 P.3d 1218 (2002).

      . Universally, throughout all jurisdictions, the "reasonable hypothesis” test is viewed as an attempt to define reasonable doubt in a circumstantial evidence case.

      . This holding requires the modification of Uniform Jury Instructions; therefore, OUJI-CR 2d 9-5 (1996) shall be modified by removing the third and fourth sentence. The modified Instruction shall read:
      The State relies [in part] for a conviction upon circumstantial evidence. In order to warrant conviction of a crime upon circumstantial evidence, each fact necessary to prove the guilt of the defendant must be established by the evidence beyond a reasonable doubt. All of the facts and circumstances, taken together, must establish to your satisfaction the guilty of the defendant beyond a reasonable doubt.
      This instruction should be given in any case where the State relies in whole or in part on circumstantial evidence.

      . Sies v. State, 6 Okl.Cr. 142, 117 P. 504 (1911).

      . Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1301, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995).

      . Cheatham v. State, 1995 OK CR 32, 900 P.2d 414, 422.

      . One legal scholar has traced the universal distrust of circumstantial evidence back to the Talmudic prohibition against testimony based on conjecture. Irene Merker Rosenberg, “Perhaps What You Say Is Based Only On Conjecture"— Circumstantial Evidence, Then and Now, 31 Hou. L.Rev. 1371 (1995) (Rosenberg). For a discussion on jurors’ interpretation of circumstantial evidence to fit particular narrative explanations of events, see Robert P. Burns, Some Realism and Idealism About the Trial, 31 Ga. L.Rev. 715, 762 (1997).

      . L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in Opening Statement, 48 Emory L.J. 107, 130 (1999), and citations atn. 146. For recent examples of Oklahoma criminal cases relying significantly on circumstantial evidence, see, e.g., Patterson v. State, 2002 OK CR 18, 45 P.3d 925; Abshier v. State, 2001 OK CR 13, 28 P.3d 579, cert. denied, 535 U.S. 991, 122 S.Ct. 1548, 152 L.Ed.2d 472 (2002); Glossip v. State, 2001 OK CR 21, 29 P.3d 597; Hooks v. State, 2001 OK CR 1, 19 P.3d 294, cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282; Young v. State, 2000 OK CR 17, 12 P.3d 20, cert. denied,
        532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001); Powell v. State, 2000 OK CR 5, 995 P.2d 510, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258; Dodd v. State, 2000 OK CR 2, 993 P.2d 778; Miller v. State, 1998 OK CR 59, 977 P.2d 1099, cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999); Matthews v. State, 1998 OK CR 3, 953 P.2d 336; Slaughter v. State, 1997 OK CR 78, 950 P.2d 839, cert. denied, 525 U.S. 886, 119 S.Ct. 199, 142 L.Ed.2d 163 (1998); Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998); Mollett v. State, 1997 OK CR 28, 939 P.2d 1, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998); Bryan v. State, 1997 OK CR 15, 935 P.2d 338, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). In Oklahoma capital cases too numerous to cite, circumstantial evidence has supported aggravating circumstances or been used to prove intent to kill.

      . State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684, 690 (1981) (Boslaugh, J., dissenting). Justice Boslaugh also correctly commented that using the unified standard is misleading unless jurors are told that their inference of guilt from circumstantial evidence must be stronger than any inference of innocence.

      . Ex Parte Jefferies, 7 Okl.Cr. 544, 124 P. 924, 924, 926 (1912).

      . 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Interestingly, Holland protects defendants from unjust prosecution by requiring proof for sufficiency, where net worth is proved by circumstantial evidence, that the Government has investigated leads which support a taxpayer's claims of innocence. 348 U.S. at 135-36, 75 S.Ct. at 135-36.

      . 348 U.S. at 140, 75 S.Ct. at 137. One case on which Holland relies rejected a requirement that the jury be instructed to find the evidence "to a moral certainty.” United States v. Austin-Bagley Corp., 31 F.2d 229, 234 (2nd Cir.), cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002 (1929). ■ That standard was neither at issue in Holland nor adopted by Oklahoma courts.

      . 348 U.S. at 139, 75 S.Ct. at 137.

      . Jackson v. Virginia, 443 U.S. 307, 317 n. 9, 99 S.Ct. 2781, 2788 n. 9, 61 L.Ed.2d 560 (1970).

      . Victor v. Nebraska, 511 U.S. 1, 14-15, 17, 114 S.Ct. 1239, 1247, 1249, 127 L.Ed.2d 583 (1994) (distinguishing Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per cu-riam )).

      . Victor, 511 U.S. at 5, 114 S.Ct. at 1243. For a fuller discussion of Holland and reasonable doubt, see Rosenberg, supra n. 4, at 1408-1413.

      . Geesa v. State, 820 S.W.2d 154 (Tx.Crim.App.1991). In reaching this decision the Court of Criminal Appeals noted that, in 1983, it had abolished the use of a special instruction on circumstantial evidence after Holland and Jackson v. Virginia. Without the instruction, the Court reasoned, its practice of conducting a separate appellate analysis of circumstantial evidence served no purpose.

      . State v. Grim, 854 S.W.2d 403, 408 (Mo.1993). See also State v. Jackson, 331 A.2d 361, 365 (Me.1975) (opinion noted reasonable doubt standard was made abundantly clear to jurors); State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995) (emphasizing importance of jury instruction on the State's heavy burden of reasonable doubt).

      . Responding to a similar argument, the Missouri Supreme Court, in adopting the unified test, stated, "Of course, we do not decide our cases based upon which rule wins favor in the most states.” State v. Grim, 854 S.W.2d 403, 406 (Mo.1993).

      . Cox v. State, 849 So.2d 1257, 1263 (Miss.2003); State v. Guthrie, 627 N.W.2d 401, 421 (S.D.2001).

      . State v. Zauner, 250 Or. 105, 441 P.2d 85, 87 (1968) (explicitly states reasonable hypothesis test is used in circumstantial evidence cases). Zauner is cited in State v. Carson, 292 Or. 451, 640 P.2d 586, 591 (1982) for the proposition that test is "whether a reasonable person, based upon all the evidence adduced in the case, would be warranted in finding beyond a reasonable doubt that the defendant committed the offense charged."

      . Hughes v. State, 513 P.2d 1115, 1117 (Alaska 1973); State v. Fitzpatrick 163 Mont. 220, 516 P.2d 605, 609 (1973); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, 433 (1956). North Dakota and Pennsylvania also adopted a unified test, relying on forum precedent regarding the lack of probative difference between the types of evidence. State v. Emmil 172 N.W.2d 589, 591 (N.D.1969); Commonwealth v. Marino, 142 Pa.Super. 327, 16 A.2d 314, 317 (1940) ("the circumstances proved should be such as reasonably and naturally to justify an inference of the guilt of the accused, and should be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused's guilt beyond a reasonable doubt”).

      . Fitzpatrick, 516 P.2d at 609.

      . State v. Medina, 228 Conn. 281, 636 A.2d 351, 364 (1994); State v. Smith, 138 Conn. 196, 82 A.2d 816, 819 (1951) ("proof beyond a reasonable doubt is such proof as precludes every reasonable hypothesis except that which it tends to support and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion”).

      . 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1970).

      . State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); Williams v. State, 539 A.2d 164 (Del.1988); People v. Pintos, 133 Ill.2d 286, 139 Ill.Dec. 832, 549 N.E.2d 344 (1989); Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991) (restating previous “not clearly unreasonable” standard as "If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty”); State v. Jackson, 331 A.2d 361, 365 (Me.1975); Commonwealth v. Nardone, 406 Mass. 123, 546 N.E.2d 359 (1989) (noting use of unified standard); Wiggins v. State, (Md.1997), overruled on other grounds Wiggins v. Corcoran, 288 F.3d 629 (C.A.4th.2002) (affirms previous decisions that adopt the unified standard, but cites the trial court’s findings that the facts did not demonstrate a reasonable hypothesis of innocence) [Subsequent cases confirm the use of the unified standard.]; People v. Konrad, 449 Mich. 263, 536 N.W.2d 517, 522 n. 6 (1995); State v. Grim, 854 S.W.2d 403 (Mo.1993); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684, 689 (1981); State v. Fiorello, 36 N.J. 80, 174 A.2d 900, 904 (1961); State v. Sutphin, 107 N.M. 126, 753 P.2d 1314, 1318-19 (1988); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) [The Ohio State Bar Association, responding to concerns about unfairness in death penalty cases, has recommended that the former standard be restored.]; State v. Romano, 456 A.2d 746 (R.I.1983) citing State v. Roddy, 401 A.2d 23, 34-35 (R.I.1979) (rejecting reasonable hypothesis instruction based on Holland); Geesa v. State, 820 S.W.2d 154 (Tx.Crim.App.1991); State v. Derouchie, 140 Vt. 437, 440 A.2d 146 (1981); State v. Green, 94 Wash.2d 216, 616 P.2d 628, 632 (1980); State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

      . State v. Sutton, 707 P.2d 681, 683 (Utah 1985); State v. Clayton, 646 P.2d 723, 724 (Utah 1982); State v. Span, 819 P.2d 329, 332 (Utah 1991) (circumstantial evidence must be of such quality and quantity as to justify a jury in determining guilt beyond a reasonable doubt).

      . See, e.g., White v. State, 1995 OK CR 15, 900 P.2d 982, 993-94. The White dissent, which closely resembles the majority opinion here, also thoroughly discusses Holland and urges this Court to adopt the federal standard.

      . See., e.g., Long v. State, 2003 OK CR 14, 74 P.3d 105 (overruling precedent to find that duress is not a defense to malice murder).


author: BAY MITCHELL, Presiding Judge.

text:
    2004 OK CIV APP 41
    Beverly SMITH, Petitioner, v. MILLWOOD SCHOOLS, Compsource Oklahoma, and the Workers’ Compensation Court, Respondents.
    No. 98,323.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 31, 2003.
    Rehearing Denied Jan. 9, 2004.
    Certiorari Denied May 3, 2004.

      John C. Forbes, Robert Highsaw, Forbes, Forbes & Bowler, Midwest City, OK, for Petitioner.
    James C. Ferguson, Bruce V. Winston, Walker, Ferguson & Ferguson, Oklahoma City, OK, for Respondents.
   Opinion by

BAY MITCHELL, Presiding Judge.

¶ 1 In September, 2000, the Claimant, Beverly Smith, injured her back as a result of moving desks while working as a provisional teacher for Employer, Millwood Schools. On December 10, 2001, the trial court found Claimant sustained a compensable on-the-job injury to her back and awarded temporary total disability (TTD) benefits effective October 25, 2000. Claimant’s one-year teaching contract expired on June 3, 2001. Thereafter, the trial court appointed Emily Friedman, M.D., as an independent medical examiner. Dr. Friedman examined Claimant and on March 11, 2002, determined Claimant was able to work with certain restrictions. As a result of Dr. Friedman’s report, Employer moved to end Claimant’s TTD on March 22, 2002. After a hearing, the trial court terminated TTD effective May 13, 2002. Claimant sought review of the decision by a three-judge panel of the Workers’ Compensatioh Court, which unanimously affirmed the trial court’s order terminating TTD. That order is now before us on review.

¶ 2 On appeal, Claimant argues the trial court’s decision to terminate TTD is without evidentiary or legal support. Claimant alleges the evidence at the termination hearing showed she was currently unable to perform the duties as a teacher. In addition, Claimant contends the testimony of the school’s business manager that he did not have an available position for her, mandates Claimant remain on TTD during the time she is under continuing treatment with Dr. Friedman.

¶ 3 In her report of March 11, 2002, Dr. Friedman diagnosed Claimant as having a small disc bulge at L4-5, and a central disc herniation at L5-S1. Dr. Friedman found Claimant had not yet reached maximum medical improvement and required further treatment, including medication, epidural steroid injections, and physical therapy. Dr. Friedman did determine, however, that Claimant was no longer TTD and could perform light-duty work with certain restrictions, including: no bending, restricted sitting (for an hour at a time with ten minute breaks in between), restricted pushing and pulling of twenty-five pounds or more, and restricted lifting of ten pounds on an occasional basis.

¶ 4 Claimant testified she continues to have back pain with numbness in the right leg and has not worked since her initial injury. Claimant admitted some of Dr. Friedman’s restrictions were in line with her normal duties as a classroom teacher, but maintained the bending and weight restrictions could interfere with her regular duties. She indicated if an appropriate job were available for her at Millwood Schools, she would be willing to take it. Employer testified it had no available positions for Claimant.

¶ 5 The cause and extent of disability arising from an accidental injury are questions of fact to be determined by the Workers’ Compensation Court. Sohio Petroleum Co. v. Cotton, 1954 OK 198, ¶ 7, 272 P.2d 383, 385. All findings of fact made by the Workers’ Compensation Court — whether by the trial court or the reviewing panel — are conclusive and binding on appeal unless we determine they are not supported by competent evidence. Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 552. We thus review the opinion below under the any-competent-evidence test, during which “our responsibility simply is to canvass the facts, not with an object of weighing conflicting proof in order to determine where the preponderance lies but only for the purpose of ascertaining whether the tribunal’s decision is supported by competent evidence.” Id.

¶ 6 TTD for which compensation may be awarded pursuant to 85 O.S.2001 § 22(2) is defined as “the healing period, or that period of time following an accidental injury when an employee is totally incapacitated for work due to illness resulting from injury.” Bodine v. L.A. King Corp., 1994 OK 22, ¶ 9, 869 P.2d 320, 322. The employee’s ability to do light work, though not to engage in the same labor he previously had performed, is sufficient to establish the employee is not TTD. Id.; Akers v. Seaboard Farms, 1998 OK CIV APP 169, ¶ 7, 972 P.2d 885, 887. But if the employer has no light duty work available, the injured employee is nonetheless entitled to TTD benefits. Hinton v. Labor Source, 1998 OK CIV APP 2, ¶ 6, 953 P.2d 358, 359. “The requirement to offer light duty work to injured employees simply does not extend to former employees,” however. Tubbs v. Oklahoma Tax Comm’n, 2001 OK CIV APP 97, ¶ 5, 28 P.3d 624. 28 P.3d 624, 625.

¶ 7 Dr. Friedman’s medical report provides competent evidence Claimant was able to do light duty work and thus was no longer TTD. Further, it is undisputed Claimant’s one-year employment contract expired at the end of the 2000/2001 school year, with Employer having no continuing obligation to employ Claimant thereafter. Accordingly, after June 3, 2001, Millwood Schools was no longer obligated to offer Claimant light-duty work upon medical release because Claimant was no longer an employee. Were Millwood Schools required to offer Claimant light-duty employment even after her contract had expired, Claimant would be in a better position than an uninjured employee whose contract had also expired. See Akers, ¶ 10, 972 P.2d at 887.

¶ 8 Competent evidence exists to support the trial court’s decision to terminate Claimant’s TTD.

¶ 9 SUSTAINED.

HANSEN, J., and JONES, J., concur.

      . At the time it terminated her TTD, the trial court also denied Claimant's request for vocational assistance. On appeal, the three-judge panel of the Workers’ Compensation Court reversed, sustaining Claimant’s vocational assistance request, but affirming the trial court’s order in all other respects, including its termination of TTD. The vocational training issue is not part of the present appeal.


author: JERRY L. GOODMAN, Presiding Judge.

text:
    2004 OK CIV APP 35
    In the Matter of the Application of Lana Renee STRATTON, by and Through Her Mother, Lisa KELLEY, to Change Her Name. and In the Matter of the Application of Cara Christine Stratton, by and Through Her Mother, Lisa Kelley, To Change Her Name. G. Robinson Stratton III, Appellant, v. Lisa Kelley, Appellee.
    No. 98,919.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Dec. 9, 2003.
    Rehearing Denied Jan. 20, 2004.
    Certiorari Denied March 29, 2004.

      Patricia A. Kirch, Ardmore, OK, for Appellant.
    Joseph K. Heselton, Jr., Jennifer H. Kirkpatrick, Phillips McFall McCaffrey, McVay & Murrah, P.C., Oklahoma City, OK, for Appel-lee.
   Opinion by

JERRY L. GOODMAN, Presiding Judge.

¶ 1 G. Robinson Stratton III (Father) appeals the trial court’s January 29, 2003, order which granted his ex-wife Lisa Kelley’s (Mother) petition to change the surname of Father’s biological children from Stratton to that of Mother’s new husband, Kelley. The trial court granted the name change over the objection of Father, whose non-custodial parental rights have not been terminated. Based upon our review of the facts and applicable law, we reverse.

FACTS

¶2 The facts are undisputed. Father is the biological father of the minor children Lana and Cara Stratton (Children). Children were born in 1987 and 1990, respectively. Father was divorced from Mother in 1993, when Children were six and three. Mother was granted custody and Father was granted reasonable and seasonal visitation. Father is currently paying child support and daycare expenses, and providing health and life insurance benefits to Children, but has otherwise not significantly participated in the lives of Children for the last six years. Mother remarried in 1994 and assumed her new husband’s name, Kelley. It was not long before Children began using that surname as well. Children have used the Kelley surname since 1994, and are known by that name at church and school, and by their peers.

¶ 3 In 2001, the oldest child was denied a driving permit in the Kelley name because she was still legally named Stratton. On November 8, 2002, Children, by and through Mother, filed a petition to change Children’s names from Stratton to Kelley, pursuant to the Oklahoma Change of Name Act, 12 0.S. 2001, §§ 1631 through 1637. Father was asked to waive any objections to the name change, or agree to have his parental rights, and his financial obligations, terminated in order to facilitate Children’s adoption by the stepfather. Father declined the request and filed an objection to the name change.

¶4 A hearing was held on January 29, 2002, attended by Father, Mother, and Children. No transcript of the proceedings was recorded, but a narrative statement in lieu of a transcript, executed by the trial judge, was filed April 9, 2003, pursuant to Okla.Sup.Ct. R.1.30, 12 O.S.2001, ch. 15 app. 1. The trial court granted the petition to change Children’s names. Father appeals.

STANDARD OF REVIEW

¶ 5 The parties disagree on the standard of appellate review. Citing Reed v. Reed, 1959 OK 63, 338 P.2d 350, Mother contends a petition for name change is an equitable action and therefore the standard of review is whether the trial court’s order is against the weight of the evidence. Father cites In re Tubbs, 1980 OK 177, 620 P.2d 384, and argues that because Children’s continued use of his surname is a constitutionally protected interest, the standard of review for constitutional questions is de novo. While we agree a constitutionally protected interest is involved, thus entitling Father to due process and adequate notice, we conclude the appropriate appellate standard of review in name change cases to be that set out in Reed:

In an action of equitable cognizance this court will examine the entire record and weigh the evidence, and will reverse the judgment of the trial court if found to be against the clear weight of the evidence or is contrary to established principles of equity. ¶ 19, 338 P.2d at 354-55.

ANALYSIS

¶ 6 The issue presented is: may a court order a child’s name to be changed over the objection of the natural father, whose non-custodial parental rights have not been terminated? While we acknowledge a court may do so, in certain circumstances not present here, we hold the facts in the case before us do not support a name change.

¶ 7 Our research reveals few Oklahoma cases relevant to the facts and issue presented in this case. In Reed v. Reed, 1959 OK 63, 338 P.2d 350, the Oklahoma Supreme Court held the trial court did not err when it refused to permit the child’s name to be changed over the objection of the natural father. The facts in Reed reflect that despite the divorce and his subsequent relocation out of state to attend medical school, the father remained close to his child, participated in the child’s life as much as possible, and maintained good relations with the child’s mother (his ex-wife), as well as with children’s stepfather. Using the best interest test, the Reed Court held it was not an abuse of judicial discretion to deny the name change:

In view of the father and son relationship existing between Dr. Reed and his son and the relationship between the Baldwins and the child, the final determination herein must be on consideration of what, under all the circumstances, is best for the child, coupled with the rights of the parties as such rights refer to and have a direct bearing on the best interest of the child.
Dr. Reed has generously contributed to the support of the child, has exhibited a desire to preserve the parental relationship, has visited the child, had the child within [sic] him and has certainly been interested in his progress. This being an action of equitable nature and the court having heard the testimony, and finding for Dr. Reed, the judgment of the trial court enjoining the changing of the name will not be disturbed on appeal, unless against the clear weight of evidence. In re Fletcher’s Estate, Okl., 269 P.2d 349. From an examination of the entire record, the judgment of the trial court is not against the clear weight of evidence. Reed at ¶¶ 8, 13, 338 P.2d at 352, 353.

II8 In In re Tubbs, 1980 OK 177, 620 P.2d 384, the Oklahoma Supreme Court reversed a trial court decision changing a child’s name to that of a step-parent. Deciding the case on narrow procedural grounds, the Court held:

Every divorced parent-custodial or not-whose paternal or maternal bond remains unsevered, has a cognizable claim to having his/her child continue to bear the very same legal name as that by which it was known at the time the marriage was dissolved. This ancient, valued and inseparable incident of the parental status, merits not an iota less protection of notice under due process than that which stands extended to the larger interest of a parent in preserving-intact and inviolate-the paternal or maternal bond as a whole. Tubbs at If 9, 620 P.2d at 385.
It is generally recognized that a father has a protectible claim in the continued use by the child of the paternal surname in accordance with the usual custom, even though the mother may be the custodial parent. The paternal interest has been alluded to by various terms-a natural right, a fundamental right, a primary or time-honored right, a common-law right, a pro-tectible interest and even a legal right. It has been protected by a variety of procedural devices. While the authorities appear somewhat divided, the better view is that a non-custodial father whose paternal bond remains unsevered has a recognized interest in the child’s continued use of his surname. Tubbs at ¶ 5, 620 P.2d at 386-87 (footnotes omitted).

It should be noted that the Court itself described the scope of its opinion:

The question for decision is whether the decree changing a minor’s name solely on publication service is void for want of personal notice to the father whose whereabouts were known or readily ascertainable and whose paternal rights remained unextinguished. We hold that because the notice given falls short of the minimum standards of due process the trial court should have vacated its decree. Tubbs at ¶ 1, 620 P.2d at 385.
We need not and do not consider here the constitutional validity of § 1633. Nor do we declare that personal notice to some or any person is essential in every change-of-name proceeding. Our 'pronouncement in this case is far more narrow. We merely hold that a decree changing a minor’s surname without personal notice to a living non-custodial parent whose whereabouts are knoum or are readily ascertainable from available sources at hand and whose paternal or maternal bond remains unsevered falls short of compliance with the minimum standards of due process. Art. 2 § 7, Okl. Con. (Emphasis added.) Tubbs at ¶ 7, 620 P.2d at 388.

¶ 9 We note Father does not raise any issues regarding the timeliness or quality of his notice of the proceedings. While we agree Father’s right to have his natural children bear his surname is a constitutionally protected right, that right is not absolute. ■ It must be balanced by the best interest of the children.

[t]he final determination herein must be on consideration of what, under all the circumstances, is best for the child, coupled with the rights of the parties as such rights refer to and have a direct bearing on the best interest of the child. Reed at ¶ 8, 338 P.2d at 352.

¶ 10 In James v. Hopmann, 1995 OK CIV APP 105, 907 P.2d 1098, another division of the Court of Civil Appeals upheld a trial court’s decision to change a child’s name from that of the natural mother to that of the natural father, who was not married to the natural mother, but was judicially determined to be the natural father. The trial court, applying 10 O.S.1991, § 90.4 as the statutory basis for the name change, found the best interest of the child would be advanced by changing the name to that of the natural father, over the objection of the natural mother. The Court of Civil Appeals, using the abuse of discretion standard of review, held that the trial court’s decision was not against the weight of the evidence, given that the child was surrounded by loving and supportive extended family on both sides. The court set out a list of factors that “should be considered by the trial judge” before changing a child’s name under § 90.4, but declined to impose that list on the trial court, relying on the trial court’s wide discretion as a finder of fact. James at ¶ 6, 907 P.2d at 1100.

¶ 11 In Re J.S.S., 1995 OK CIV APP 47, 895 P.2d 748, which relied on Tubbs, held that 12 O.S.1991, § 1631 (now 12 O.S.2001, § 1631):

does not permit a parent to change a minor child’s last name from that of his natural father over the father’s objection. This state has never permitted such a name change for the convenience of the mother when the paternal bond remains unsev-ered. J.S.S. at ¶ 2, 895 P.2d at 748.

We do not interpret Tubbs to completely forbid changing a minor’s name over the objection of the natural father. Therefore we decline to fully adopt J.S.S.’$ reasoning. We interpret Tubbs as defining the quality of the right involved, and also defining the quality of the notice and due process procedures that must be accorded the holder of that right before that right can be modified. Indeed, Tubbs itself implicitly recognized that, under the proper circumstances, a name change over the objection of a non-custodial parent can occur:

We merely hold that a decree changing a minor’s surname without personal notice to a living non-custodial parent whose whereabouts are known or are readily ascertainable from available sources at hand and whose paternal or maternal bond remains unsevered falls short of compliance with the minimum standards of due process. Art. 2 § 7, Okl. Con. Tubbs, at ¶ 7.

Thus, a court may change the name of a child from that of the natural father whose parental bond remains unsevered, even over his objection, as long as the natural father has been accorded the due process protections commensurate with the protected property interest now subjected to the exercise of judicial power. To so interpret § 1631 otherwise would require us to read a prohibition into § 1631 that does not exist.

¶ 12 Section 1634 of the Oklahoma Change of Name Act states:

The material allegations of the petition shall be sustained by sworn evidence, and the prayer of the petition shall be granted unless the court or judge finds that the change is sought for an illegal or fraudulent purpose, or that a material allegation in the petition is false. (Emphasis added.)

From the foregoing text, it is obvious that had the legislature intended a name change to be contingent on the express permission of a parent whose parental rights remained unsevered, it would have so stated. Instead, the only statutory impediment to a name change is a finding that the change is for an illegal or fraudulent purpose. No such allegations are raised in this case. Parenthetically, we note §§ 1631 and 1634 have remained virtually unchanged since their enactment in 1953.

¶ 13 Thus, while an argument can be made that a trial court has no discretion but to change the name of a minor child under § 1634, that section must be read in conjunction with the public policy concerns set out in Tubbs. As quoted above, the Oklahoma Supreme Court set out the extensive history and logic for keeping the parental bond between a child and a parent intact, which use of a natural father’s surname supports.

¶ 14 We conclude that under these facts, the trial court erred in ordering the name change. In this connection, we find Father’s argument that his surname, which is his birthright to his children, is perhaps the last tangible link to his family. This link should not be severed as a convenience to Children or to Wife. It should Only be severed under the most compelling circumstances, which are not present here.

¶ 15 Father testified that since her remarriage, Mother engaged in a practice and pattern of interfering with Father’s attempts to maintain a parental bond with Children. This was done, according to Father, through actions such as not returning phone calls, scheduling social engagements in conflict with Father’s visitation schedule, and prohibiting Children’s visits with the paternal grandparents. Father decided not to exacerbate the tense situation between him and Mother or jeopardize his already tenuous bond with Children, so he elected not to exercise any significant visitation until Children were older. Father testified he planned to reestablish contact with Children when they were older and he would not have to contend with Mother’s interference. Further, Father’s faithful payment of child support can be construed as evidence of his desire to maintain a parental relationship, as do his refusals to consent to the name change or adoption, even though to do so would be of financial benefit to him. These factors, taken as a whole, support Father’s argument that he is trying to do what is best for his children in difficult circumstances. To sever the last remaining familial link between him and Children simply for their convenience is not in their best interest.

¶ 16 We are not unmindful that Children have elected to be known by a different name than Father’s. However, that is a choice of convenience for. them, and their legal surname remains that of Father, their choices notwithstanding. Upon reaching legal age, Children have options available to them, when neither parent is in a position to object.

¶ 17 REVERSED.

REIF, J., and RAPP, J., concur.

      . For reasons set out elsewhere in this opinion, Father chose not to exercise any significant visitation or parental contact for the six years preceding filing of the petition for name change.

      . Title 12 O.S.2001, § 1631 provides:
      Any natural person, who has been domiciled in this state or who has been residing upon any military reservation located in said state, for more than thirty (30) days, and has been an actual resident of the county or such military reservation situated in said county, or county in which the military reservation is situated, for more than thirty (30) days, next preceding the filing of the action, may petition for a change of name in a civil action in the district court. If the person be a minor, the action may be brought by guardian or next friend as in other actions.

      . Father also requested a change of visitation. This was denied by the trial court, but is not an issue on appeal.

      . Now, 10 O.S.2001, § 90.4, this section states in part:
      A. At any time after a determination of paternity, the mother, father, custodian or guardian of the child may file a motion requesting the court to order that the surname of the child be changed to the surname of its father....
      B. If, after said hearing, the judge finds that it is in the best interest of the child to bear the paternal surname, the court shall enter an order to that effect....