author: CHAPEL, Judge. LUMPKIN, Judge: LILE, Vice Presiding Judge:

text:
    2003 OK CR 12
    John Fitzgerald HANSON, Appellant, v. STATE of Oklahoma, Appellee.
    No. D-2001-717.
    Court of Criminal Appeals of Oklahoma.
    June 11, 2003.

      Jack E. Gordon, Jr., Claremore, OK, Attorney for Defendant at trial.
    Sharon Ashe, Assistant District Attorney, Tulsa, OK, Attorney for the State at trial.
    James H. Lockard, Deputy Division Chief Capital Direct Appeals Division, Jamie D. Pybas, Division Chief Direct Appeals Division, Oklahoma Indigent Defense System, Norman, OK, Attorneys for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   OPINION

CHAPEL, Judge.

T1 John Fitzgerald Hanson was tried by jury and convicted of Count I, First Degree Malice Murder in violation of 21 0.8.1991, § 701.7(A), and Count II, First Degree Felony Murder in violation of 21 0.8.1991, § 701.7(B), in the District Court of Tulsa County, Case No. CF-99-4583. As to Count I, the jury found three aggravating cireumstances: (1) Hanson was previously convicted of a felony involving the use or threat of force; (2) there existed a probability that Hanson would pose a continuing threat to society, and (8) that Hanson knowingly created a great risk of death to more than one person. As to Count II, the jury found two aggravating cireumstances: (1) Hanson was previously convicted of a felony involving the use or threat of force; and (2) there existed a probability that Hanson would pose a continuing threat to society. In accordance with the jury's recommendation the Honorable Linda G. Morrissey sentenced Hanson to death (Count I) and life without the possibility of parole (Count II). Hanson appeals from these convictions and sentences. After thorough consideration of the briefs, exhibits, transcripts and record, we find that pervasive error in jury selection and the second stage requires us to remand Count I for resentencing.

{2 Hanson and Victor Miller took Mary Agnes Bowles from the Promenade Mall in Tulsa sometime between 4:15 p.m. and 5:50 p.m. on August 31, 1999. They had already robbed two liquor stores, and wanted to use Bowles's car in another robbery. Hanson held Bowles down in the back seat while Miller drove to an isolated area near Owasso. He turned down a road leading to a dirt pit. The pit's owner, Mr. Thurman, was there loading a dump truck for a delivery. While speaking to his nephew, Jim Moseby, on his cell phone, Thurman said he saw a car cir-eling through the pit. After this conversation, Miller shot Thurman four times with a chrome .880 revolver. Miller drove a short distance away. He stopped at an overgrown roadside. Hanson got out with Bowles and, using a Imm semiautomatic pistol, shot her between four and six times as she lay on the ground. Before leaving the scene, they partially covered her with branches. Neighbors heard several shots coming from the pit area and saw an unfamiliar car drive by. They found Thurman lying near his dump truck at the entrance to the road. Thurman was taken to the hospital; he never regained consciousness and died on September 14. Bowles's decomposed body was found on September 7.

13 Hanson and Miller drove Bowles's car to the Oasis Motel. Hanson asked the price of a room, then left. He returned shortly, explained that his car wouldn't start, and asked to borrow tools. The desk clerk gave him a serewdriver and followed him out. The clerk saw Hanson and another black man working on Bowles's car. Eventually the two gave up and returned the serewdri-ver and Hanson rented a room. He filled out and signed the registration card, and showed the clerk his driver's license. The clerk never saw either man again, and the car remained parked in the motel lot. Hanson and Miller robbed a liquor store on September 8, and robbed a federal credit union on September 8. On September 9 Miller's wife made an anonymous phone call telling police that Hanson and Miller, the credit union robbers, were in the Muskogee Econolodge. Also on September 9, a patrol officer saw Bowles's car parked at the Oasis. The officer discovered Hanson had rented a room and left the car there. Law enforcement officials from various jurisdictions coordinated this information and served warrants on Miller and Hanson at the Eceonolodge. Miller came out immediately. Hanson stayed in the room until driven out by tear gas. While he was alone in the room Hanson hid the murder weapons and extra ammunition in the toilet tank. Hanson's fingerprint was found on the driver's seat belt latch in Bowles's car, and Miller's fingerprint was on the front passenger seat belt latch. Rashad Barnes testified that, a few days before his arrest, Hanson visited him. Hanson said they carjacked an old lady, described how Miller killed Thurman, and confessed to Bowles's murder.

ISSUES RELATING TO JURY SELECTION

[4 Hanson raises several issues surrounding voir dire. Propositions VI and VII, concerning jurors' views on the death penalty, have merit and contribute to the accumulation of reversible error in this case.

T5 Hanson's claims in Propositions IV and V do not require relief, In Proposition IV Hanson complains that, although his jury was allowed to take notes, the trial court failed to use the standard Oklahoma Uniform Jury Instructions (OUJT) on note-taking and the use of notes in deliberations. Hanson neither requested the instructions nor failed to object to their omission. We encourage trial courts to give jurors the standard instructions where note-taking is allowed. However, the trial court's instructions, taken as a whole, fairly and accurately stated the applicable law, channeling juror's discretion in their use of notes In Proposition V Hanson complains that the trial court abused its discretion in refusing to allow individual voir dire. Individual voir dire is appropriate where the record shows jurors were not candid in their responses about the death penalty, or that responses were tailored to avoid jury service. The record overall does not show the majority of potential jurors were less than candid in a response merely to avoid jury service; nor does it support Hanson's claim that jurors learned economic hardship would result in exeusal from service. Hanson has not shown his right to fair and impartial jurors was affected by the decision to refuse individual voir dire. These propositions are denied.

T6 In Proposition VI Hanson correctly claims he was denied his right to a full and fair examination of prospective jurors' views on automatic imposition of the death penalty for malice murder. The trial court granted Hanson's motion to exelude jurors who were in favor of the death penalty. However, the trial court repeatedly denied Hanson's requests to "life-qualify" the jury by asking whether jurors would automatically impose the death penalty for first degree murder. In Morgan v. Illinois, the United States Supreme Court held that a capital defendant must be permitted on voir dire to find out whether his prospective jurors believe that the death penalty should automatically be imposed upon conviction for first degree murder. The Supreme Court reasoned that a juror who will automatically impose a death sentence cannot in good faith follow the law and consider aggravating cireumstances and mitigating evidence. This Court has repeatedly held that, if a defendant so requests, either he or the trial court must ask prospective jurors whether they would automatically impose a sentence of death; this Court reversed and remanded one capital case twice on this very issue.

T7 The State admits that, upon request, a defendant must be allowed to ask whether jurors would automatically impose the death penalty. However, the State argues this requirement was satisfied by the trial court's general question as to whether jurors could consider all three punishments, along with counsels' questions about jurors' views on the death penalty. Both the United States Supreme Court and this Court have rejected this argument. As we found in Jones II,

The State conflates two very different lines of questioning. It is important that voir dire questions determine whether prospective jurors will consider all three punishments equally. However, asking that question will not satisfy the specific inquiry whether a juror would automatically impose a sentence of death.

As the Supreme Court noted, "a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so." This is lustrated in this case by Juror Fulfa-ro, who said he could follow the law and consider all three punishments, but then said that only the death penalty was an adequate punishment for first degree murder.

18 Hanson's jury was able to impose a sentence of life without parole for felony murder. This does not answer the question whether any sitting juror would automatically have imposed death for malice murder. The record shows that at least one sitting juror indicated by word and gesture he would support such a conclusion. We have held that it is constitutionally unacceptable for a defendant to be sentenced by a jury without knowing whether it, or members of the prospective jury panel, would automatically impose a death sentence. Hanson was entitled to ask whether jurors would automatically impose death, and the trial court erred in denying him that right. In combination with other errors, this error requires remand for capital resentencing.

T9 In Proposition VII Hanson argues that Juror Fulfaro should have been exeused for cause. Juror Fulfaro stated he could follow the law and consider all three punishments for murder. When questioned by defense counsel, Fulfaro said he believed that defendants had their day in court but victims' rights were forgotten; said he believed in "an eye for an eye"; approved of the strict punishments found in Middle Eastern countries. He stated that life and life without parole were significant but not adequate punishments for premeditated murder, and said he would only consider death for that crime. Fulfaro explained he believed that the victim's family deserved that closure. Over defense counsel's objection, the trial court asked Fulfaro whether he could consider all three punishments and impose the one warranted by the law and the evidence. Fulfaro replied he could, because his understanding of the defense question was that, if the prose-ecution brought the proof of murder to him, he would be upholding the law of Oklahoma. Defense counsel correctly noted that the trial court's general question did not go to Fulfa-ro's likelihood to automatically impose the death penalty (see Proposition VI, discussed above). The trial court denied Hanson's request to excuse Fulfaro for cause.

110 The decision to exeuse a juror for cause is within the trial court's discretion. This Court will look to the whole of voir dire in determining whether a juror should be excused for cause. All doubts regarding juror impartiality must be resolved in the defendant's favor. A juror's views must not substantially impair or prevent the performance of his duties under his oath and the trial court's instructions. The court should remove for cause any juror who will automatically vote for the death penalty, as that juror cannot fulfill his oath. This bias need not be proven with unmistakable clarity. This Court recently reversed where a juror indicated a strong bias towards the death penalty which persisted when he was asked whether he could fairly consider all three punishments. The State distinguishes this case because Fulfaro, while stating he believed death was the only adequate punishment for premeditated murder, agreed he could consider all three punishments. However, Fulfaro was not asked whether he could fairly consider all three, and that single word carries an inescapable constitutional weight. Taken as a whole, the record of Fulfaro's voir dire shows that he was biased to automatically give the death penalty for premeditated murder. He should have been excused for cause.

T11 In order to show he was prejudiced by this error, Hanson must show that his peremptory challenges were reduced so he was forced, over objection, to keep an unacceptable juror. Trial counsel made a record asking for an additional peremptory challenge. He explained that he would have used this peremptory challenge to exeuse Juror D. McNeil, who shook his head vigorously in agreement when Fulfaro explained his bias for the death penalty. The State suggests nothing in the record supports this claim, as MeNeil said he could consider all three punishments after hearing the evidence. On the contrary, McNeil stated during voir dire that he believed in the death penalty because people who take a life should pay for it with theirs. Regarding the death penalty, he said, "It really don't bother me at all, If people go out and commit crimes, with a bad nature and everything, I think they should be punished for it." McNeil also had watched as a friend was murdered in a drive-by shooting.

{ 12 The State suggests Hanson had many opportunities to remove MeNeil with a peremptory challenge. This misses the point. If, as the State claims, MeNeil was an acceptable juror, Hanson had no need to remove him. If, as the record shows, McNeil was potentially biased, then Hanson should have been able to use a peremptory challenge to remove him-instead of using it to remove a juror who should have been removed for cause. The State also suggests Hanson was not prejudiced since MeNeil was passed for cause. This is not the standard. Hanson need only show that the juror was unacceptable because he was undesirable to his position. The record supports Hanson's claim. Fulfaro should have been exeused for cause, and this error prejudiced Hanson. In combination with other errors, this requires that Count I be remanded for resentencing.

ISSUES RELATING TO FIRST STAGE PROCEEDINGS

T13 Hanson raises only one claim of error specifically pertaining to the guilt/innocence stage of trial. In Proposition III he complains that prosecutorial misconduct in the first stage deprived him of his right to a fair trial. He objected to several comments, preserving the error for appeal; we review the rest for plain error. Parties have wide latitude, in closing argument, to discuss the evidence and reasonable inferences from evidence, and relief is required only where grossly improper and unwarranted argument affects a defendant's rights. None of the comments require relief.

114 Hanson preserved only one error during the first stage. Counsel objected twice to the prosecutors' repeated characterizations of the defense case as resembling an octopus's ink bag, and hiding from the facts. These objections were overruled, and the prosecutor continued to similarly de-seribe Hanson's case. Prosecutors should not cast aspersions on opposing counsel or ridicule the defense. The comments to which Hanson objected were inappropriate, but do not require relief,

115 Without objection, the State called Hanson a "gun-totin', trigger-pullin' carjacker" and a "two-time, cold-blooded murderer" and jackal. We look with disfavor on name-calling. However, the evidence showed Hanson was a carjacker who carried a gun and committed at least one murder; this does not rise to the level of plain error. Hanson claims the prosecutor improperly vouched for Rashad Barnes's truthfulness and argued facts not in evidence concerning him. The prosecutor argued that Barnes had become a third victim in the case when he became a snitch; Barnes testified that he failed to contact police and was unhappy about testifying because he had a snitch label. The prosecutor also argued Hanson was trying to accuse Barnes to save himself. This is exactly what defense counsel suggested during closing argument: that Barnes, not Hanson, committed the crimes with Miller. This was a reasonable characterization of Hanson's case.

116 The prosecutor, describing the crimes, asked rhetorically what might have happened had Bowles's car not broken down, and suggested perhaps there would be a file of dead bodies. He also stated that Miller and Hanson were jackals who traveled in packs and preyed on the weak, and said "we" pay the price. A prosecutor should not encourage jurors to let improper sympathy, sentiment or prejudice influence their decisions. The prosecutor told jurors it "choked me up" to hear testimony that, after killing Thurman and Bowles and robbing the federal credit union with the same guns, the defendants bought beer. Prosecutors should refrain from expressing personal opinions. The prosecutor's descriptions of Bowles accurately describe the evidence, or are within the wide latitude afforded in argument. Hanson fails to show that the prosecutor's comments were so grossly improper and unwarranted that they affected his rights, and this proposition is denied.

ISSUES RELATING TO SECOND STAGE PROCEEDINGS

T17 In Proposition I Hanson claims the trial court erred in refusing to permit his expert witness to present testimony discussing the probability of his future dangerousness, to rebut the continuing threat aggravating cireurastance. Hanson argues (a) that this evidence is relevant and admissible; (b) that the trial court erred in summarily excluding the evidence without holding a hearing on its scientific reliability; and (c) that the error was not harmless. The State argues that the evidence was irrelevant so the trial court did not err in refusing to admit it. This Court does not have a sufficient record before it to determine whether Hanson correctly claims this evidence was admissible. However, given the importance of the issue, we have concluded that we must remand the case for capital resentencing.

T18 Hanson filed notice in January, 2001, that he intended to present expert testimony regarding his risk of future dangerousness while incarcerated through Dr. Mark Cunningham. In February, 2001, Hanson filed a supplemental notice substituting Dr. Gilda Kessner as his expert witness in this area. The State made no objection until well into the second stage of trial, after evidence of the aggravating cireumstances had been presented. At that time the State objected to Dr. Kessner's testimony. Defense counsel explained that, in addition to familiarity with the tests, clinical research, literature and analysis regarding future dangerousness in prison, Dr. Kessner had interviewed Hanson and his family, and had reviewed the records of his previous prison stays. Counsel explained Dr. Kessner would testify regarding her conclusions based on her scientific knowledge as applied to her knowledge of the defendant, and would also testify regarding the term "probability". The State claimed this evidence did not meet the standards of scientific reliability set forth in Daubert v. Merrell Dow Pharmaceuticals. The prosecutor vigorously argued that this evidence was "highly unreliable", claiming that "the State of Oklahoma has said certainly psychological profiling is not acceptable in the court of Oklahoma." Without reference to authority, the prosecutor stated this kind of continuing threat evidence had been held inappropriate. Without holding a hearing on scientific admissibility, or allowing further argument, the trial court summarily ruled that "the testimony of Mr. [sic] Kessner is not admissible and does not meet the Dau-bert and Kumho Tire test."

119 This Court has never held inadmissible evidence of a defendant's propensity for future violence, in or out of prison, to support continuing threat. Both this Court and the Supreme Court have explicitly held that psychiatric evidence is relevant on this issue. Its scientific reliability has long been accepted. This Court has not held that the specific "risk assessment" evidence of future dangerousness, combining clinical results with a defendant's own history, is inadmissible. Neither this Court nor the United States Supreme Court have suggested that this evidence would be irrelevant on the issue of future dangerousness.

T20 This Court recently discussed "risk assessment" evidence. In Fitzgerald v. State [I] we had reversed and remanded a capital sentence, in part because the defendant had been prevented from presenting expert testimony to rebut the continuing threat aggravating circumstance. - We determined that a capital defendant is entitled to expert assistance to rebut an allegation of continuing threat where the State presents evidence, expert or not, on future dangerousness. On remand, the defendant indicated he intended to present a psychological expert to conduct a risk assessment of his future dangerousness, but his designated expert was not allowed to testify. In Fitzgerald v. State [II] we determined this decision was not error. We noted that, while the defendant had indicated he would use an expert to present risk assessment evidence, "nothing in either the Offer of Proof or Response indicates that Cunningham performed risk assessment on Fitzgerald or how he would testify regarding such an assessment. Thus, the trial court correctly prohibited Dr. Cunningham from testifying." As the State does in Hanson's appeal, we relied on Hooker v. State, in which we upheld a trial court's decision to prevent a defense expert from testifying where the expert's opinions were not based on individual assessment of the subjects of her opinion. Since Fitzgerald did not present risk assessment evidence to counter the State's allegation of continuing threat, this Court did not reach the issue of its scientific reliability.

121 Hanson argues that the trial court abused its discretion by failing to hold a Daubert hearing. Daubert held that trial courts, acting as gatekeepers, review novel expert testimony for reliability. The trial court here failed to fulfill its role as a gatekeeper when it summarily concluded that risk assessment evidence would not meet the Daubert test. Risk assessment evidence may, as Hanson claims, be substantially identical to the well-accepted clinical psychiatric evidence of future dangerousness. It may, as the State argues, be a significantly different, novel approach to psychiatric testimony. As there was no Daubert hearing and the record does not sufficiently describe the proposed testimony or risk assessment method, this Court cannot evaluate this claim. We refuse any invitation to speculate regarding this evidence's admissibility.

1 22 The State alleged that Hanson would probably continue to commit acts of violence posing a continuing threat to society. Hanson had a constitutional right to rebut that allegation by presenting expert evidence regarding his future dangerousness. With notice to the State, Hanson offered an expert witness to testify regarding the nature of probability in this context, the scientific literature on this issue, and how that applied to Hanson himself, based on the expert's interviews with Hanson and his family and her reviews of his prison records. Hanson could not present this witness. We are unable to determine whether this was error, but the potential error would be of constitutional magnitude. The only fair and equitable remedy is a remand for resentencing, at which time Hanson and the State will have an opportunity to present evidence regarding the scientific reliability of this testimony. This proposition is granted.

123 Hanson claims in Proposition II that trial counsel was ineffective for failing to press this issue further. The record shows that the trial court would neither entertain further argument on this issue nor reconsider its ruling. We will not say counsel was ineffective for accepting the trial court's ruling and continuing with the trial.

24 In Proposition XI Hanson correctly claims the trial court failed to instruct the jury to consider his proffered list of mitigating cireumstances. The Oklahoma Uniform Jury Instructions, Criminal, contain a model instruction on mitigating evidence, OUJI-CR 4-79, The Notes on Use to that Instruction state: "This list is intended to be illustrative, rather than exclusive, and the trial court should instruct the jury on any

other mitigating circumstances for which evidence has been introduced." Hanson submitted an instruction on mitigating evidence specifically listing nine mitigating cireum-stances, and orally asked to add a tenth cireumstance. Hanson's proposed mitigating cireumstances were supported by evidence admitted during either the first or second stage of trial, all of which was incorporated into the second stage. Although the OUJI note indicates a trial court should instruct on any mitigating circumstance supported by the evidence, the trial court refused Hanson's proposed instruction. Instead, the trial court allowed only three of the illustrative cireumstances listed in OUJI-CR (2"") 4-79, about which the trial court believed evidence had been presented-Hanson's age, character and emotional and family history. Consequently, the jury was not instructed on all the mitigating cireumstances supported by the evidence.

25 This Court will not disturb a trial court's decision regarding instructions absent abuse of discretion, "as long as the instructions, taken as a whole, fairly and accurately state the applicable law." The trial court gave OUJI-CR (23) 4-78, which defines mitigating cireumstances and notes, "The determination of what cireumstances are mitigating is for you to resolve under the facts and cireumstances of this case." This instruction was followed by OUJI-CR (2"") 4-79, as modified by the trial court, which told jurors that information had been introduced as to the three mitigating cireum-stances above, and stated, "In addition, you may decide that other mitigating cireum-stances exist, and if so, you should consider those circumstances as well." These instructions, taken as a whole, did not fairly and accurately state the applicable law. While jurors were instructed that evidence of only three mitigating cireumstances was introduced, in fact evidence had been presented supporting six other circumstances, which should have been enumerated for the jury in modified OUJI-CR (2"") 4-79.

126 Given the qualitative difference between a death sentence and other punishments, a capital jury must be able to consider in mitigation "any aspect of a defendant's character or record and any of the cireumstances of the offense that the defendant proffers as a basis for a sentence less than death." Specific instructions on mitigating evidence give guidance to the jury and reduce the likelihood that a death sentence will be imposed arbitrarily, capriciously, or in a freakish manner. Oklahoma allows jurors to consider any evidence they may, individually, find to be mitigating, and enumerated lists of mitigating cireumstances are not exclusive. 5 However, trial courts should give an instruction, modeled after OUJI-CR (28) 4-79, listing mitigating circumstances supported by the evidence. It is error for a trial court to refuse to give a defendant's proposed list of mitigating circumstances where the list is supported by the evidence and the evidence is the focal point of the defendant's case in mitigation. Hanson's case in mitigation centered on exactly his requested circumstances: his emotional and family history, his subservience to his co-defendant, and his limited culpability in one of the murders. The trial court's failure to give the requested instruction significantly diminished Hanson's ability to fully present his mitigating evidence for the jury's consideration. Hanson's jury should have © received his requested instruction on mitigating evidence. Its absence prejudiced Hanson's ability to present his case in mitigation to the jury. The jury instructions on mitigation did not accurately and fairly state the applicable law. In combination with other errors, this requires reversal for resentenc-ing on Count I.

T27 Hanson correctly claims in Proposition XIII(A) that the jury heard vice-tim impact evidence outside the seope of the capital sentencing statute. Mary Bowles's niece, Sara Mooney, gave evidence as the designated Bowles family representative. Mooney presented evidence of the impact of Bowles's death on Mooney's elderly mother, who was Bowles's sister. This was within the bounds of permissible vietim impact evidence. Mooney also presented evidence of the impact of Bowles's death on herself and her extended family of cousins and their children, all of whom were Bowles's nieces and nephews, as well as on the Tulsa community. Jerald Thurman's sister, Dianne Mose-by, presented evidence regarding the impact Thurman's death had, not only on her life, but on the life of her son, Thurman's nephew.

128 "Immediate family" for the purposes of victim impact evidence is defined as "the spouse, a child by birth or adoption, a stepchild, a parent, or a sibling of each vice-tim." We have held that a person not within the statutory definition of "family" may be designated a family representative, and may present otherwise admissible testimony on behalf of immediate family members. However, we have not extended the statutory definition of "immediate family" to include persons related to victims in ways other than those designated by the Legislature. While Mooney could properly give evidence regarding the effect of Bowles's death on her mother, the remainder of her testimony was inadmissible under the statute. Moseby's testimony regarding the impact of her brother's death on herself was within statutory limits, but her testimony regarding the effect on her son was not. Consequently, almost all of Mooney's eight-page statement, and a significant portion of Moseby's six-page statement, should not have been admitted. These statements, particularly Mooney's, focused on the emotional impact of the victims' deaths. They were emotionally affecting. This Court need not decide whether, standing alone, this inadmissible evidence created an unreasoned response in juror's minds and affected the death sentence. In combination with other errors, it requires relief.

4 29 In Proposition XV Hanson argues that the accumulation of error in this case deprived him of due process of law and a reliable sentencing proceeding. We have found separate errors in Propositions I, VI, VII, VIII, X1, and XIII. These serious errors affected the sentencing stage. Hanson was not allowed to discover whether potential jurors, including sitting jurors, would automatically impose the death penalty for malice murder. When the trial court refused to excuse just such a biased juror, Hanson used a peremptory challenge to remove him and was foreed to keep an unacceptable juror on the panel. We cannot determine whether Hanson should have been allowed to present his expert witness to present "risk assessment" evidence and rebut the allegation that he would be a continuing threat to society. The jury was not instructed on the elements of the continuing threat aggravating circumstance. As a consequence, the instructions failed to properly guide the jury's discretion. The jury did not hear Hanson's requested instruction on mitigating cireumstances, which were supported by the evidence and were the focus of his case in mitigation; this effectively diminished his ability to present his case in mitigation to the jury. The jury heard improper victim impact evidence. We did not find any of these errors individually harmless beyond a reasonable doubt. Their combination requires reversal and remand for capital resentencing. The remainder of Hanson's second-stage propositions are moot.

LILE, V.P.J., LUMPKIN, J. and STRUBHAR, J., concur in results.

JOHNSON, P.J., concurs.

LUMPKIN, Judge:

concurs in results.

1 I agree with Judge Lile's separate vote and join in his writing. In addition, I do not find the record factually supports the statements the Opinion makes about Juror D. MceNeil,

T2 Furthermore, the Opinion's statement that "Hanson need only show that the juror was unacceptable because he was undesirable to his position," supposedly supported by Thompson v. State, 1974 OK CR 15, 519 P.2d 538, is a misstatement of the law. Thompson cites to Fennell v. State, 1964 OK Cr 107, 396 P.2d 889 as an example of a case where the defendant did not exhaust all of his peremptory challenges "... and was thereby precluded from removing a prospective juror from the panel, whom he considered to be undesirable to his position." - Thompson, 519 P.2d at 541. (emphasis added.) This statement is mere dicta, is not part of Thompson's holding, and is therefore not the law. The actual rule of law regarding error on the challenge of a juror for cause was stated by this Court in Patton v. State, 1998 OK CR 66, 973 P.2d 270, 288:

The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion. Allen v. State, 862 P.2d 487, 491 (Ok1.Cr.1998), cert. denied, 511 U.S. 1075, 114 S.Ct. 1657, 128 L.Ed.2d 375 (1994). The trial court's decision will not be overturned unless an abuse of discretion is shown. Id.

Here, the trial court did not abuse its discretion. Even if the challenge for cause should have been granted, Appellant has failed to demonstrate he was forced, over objection, to keep an unacceptable juror. Warner v. State, 2001 OK CR 11, 29 P.8d 569, 574. However, I agree the failure to allow the defense counsel's questions, designed to determine if prospective jurors would automatically impose the death penalty, deprives this Court with the record it needs to ensure, in fact, there was not an unacceptable juror remaining on the panel. The term table" means a juror who cannot be fair and impartial.

T 3 I also disagree with some of the syntax in the discussion of proposition one. The Opinion states, "This Court does not have a sufficient record before us to determine whether Hanson correctly claims this evidence was admissible." From there, the Opinion goes on to discuss the test for admissibility of scientific evidence without pointing out it is the Appellant's duty to provide a sufficient record for this Court to review. If the trial court denies testimony of a witness or admission of an exhibit, it is the responsibility of the party offering the testimony or evidence to ensure a sufficient record is made to allow this Court to review the issue on appeal. This can be accomplished by requesting and conducting an in camera hearing to present the evidence for the ree-ord or through an offer of proof of sufficient specificity to provide this Court with what it needs in order to review the claim of error.

1 4 Furthermore, such evidence or testimony must be specifically applicable to the defendant on trial, not general statistics applicable to some larger, amorphous group of people who are not on trial. Here, the ree-ord is void of how the proposed evidence relates directly to Appellant or is applicable to his individualized sentence. Seq, eg., Fitzgerald v. State, 2002 OK CR 31, 61 P.3d 901, 904-05 (expert correctly prohibited from testifying because risk assessment was not performed on defendant); Hooker v. State, 1994 OK CR 75, 887 P.2d 1851, 1867 (defense expert properly prohibited from testifying to opinions not individualized to the defendant or his crime). I cannot agree error exists in the failure to hold a Daubert/Kumho hearing, where Appellant failed to establish the relevancy of his proffered witness's testimony to the Court.

15 Additionally, I disagree with the Opinion's statement in Proposition XI, concerning the failure of the Court to specifically list proposed mitigating factors, that "consequently, the jury was not instructed on all the mitigating cireumstances supported by the evidence." It is not automatic error when a judge fails to specifically list every possible mitigating factor, even those supported by the evidence. That is why we have OUJI-CR (2d) 4-79. Jurors are not limited in their consideration of mitigation factors to only those specifically listed. As triers of fact, they determine what is and what is not mitigating, regardless of whether or not it is listed. Defense counsel is free to argue any and all of the evidence presented as mitigating, but the jury is ultimately free to decide the issue. Here, any error in the trial judge's list of mitigating factors was not an abuse of discretion and was, in my opinion, harmless.

LILE, Vice Presiding Judge:

concurs in results.

T1 Clearly, the trial court should have allowed defense counsel's questions designed to determine which, if any, prospective jurors would automatically impose the death sentence for intentional murder. Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492. This error requires re-sentencing. However, the legal analysis concerning prospective juror Fulfaro and juror McNeil is flawed. Frederick v. State, 2001OK CR 34, 37 P.3d 908; Ross v.Oklahoma, 1986 OK CR 49, 717 P.2d 117; Ross v. Oklohoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

      . Hanson was charged in the alternative with malice or felony murder in both counts. The jury acquitted him of malice murder on Count IL.

      . OUJI-CR (224) 1-9, 10-84.

      . 12 0.8.2001, § 577.2.

      . Cohee v. State, 1997 OK CR 30, 942 P.2d 211, 213 and 214-15; Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 303. The trial court did not abuse its discretion in telling jurors transcripts of the proceedings would not be available during deliberations. Glaze v. State, 1977 OK CR 206, 565 P.2d 710, 714. Hanson particularly complains that the trial court compounded the error in instruction by telling jurors to "sit there and draw pictures of us" or "be as colorful or angry or whatever sentiment you feel" in the notes. Taken in context, this colloquial statement was intended to reassure jurors that their notes were for private use, not to encourage jurors to be distracted.

      . Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 8, cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001).

      . Childress v. State, 2000 OK CR 10, 1 P.3d 1006, 1015-16.

      . 504 U.S. 719, 735-36, 112 S.Ct. 2222, 2233, 119 L.Ed.2d 492 (1992).

      . Morgan, 504 U.S. at 729, 112 S.Ct. at 2229.

      . McCarty v. State, 1998 OK CR 61, 977 P.2d 1116, 1135, cert. denied, 528 U.S. 1009, 120 S.Ct. 509, 145 LEd.2d 394 (1999); Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1170-71 (where trial court denied pro se defendant's request to life-qualify jury, then sustained State's objections to defendant's questions, error in combination with others required reversal); Cannon v. State, 1998 OK CR 28, 961 P.2d 838, 844 (no error for trial court refusal to ask life-qualifying questions where defense counsel was allowed to pose questions); Knighton v. State, 1996 OK CR 2, 912 P.2d 878, 884-85, cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 LEd.2d 71; Hammon v. State, 1995 OK CR 33, 898 P.2d 1287, 1300 (reversal required where trial court failed to allow life-qualifying questions). See also Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 8, cert. denied, 532 U.S. 1028, 121 S.Ct 1976, 149 LEd.2d 768 (2001) (reaffirming principle that jury must, on request, be asked life-qualifying questions, Court held no error in trial court's failure to remove jurors who indicated they might automatically impose death penalty).

      . Jones v. State, 1999 OK CR 8, 990 P.2d 247, 250 (Jones II); Jones v. State, 1995 OK CR 34, 899 P.2d 635, 647, cert. denied, 517 U.S. 1122, 116 S.Ct. 1357, 134 L.Ed.2d 524 (Jones 1).

      . Jones II, 990 P.2d at 249-50; Jones I, 899 P.2d at 647; Hammon, 898 P.2d at 1300; Morgan, 504 U.S. at 732-34, 112 S.Ct. at 2232.

      . Jones II, 990 P.2d at 249.

      . Morgan, 504 U.S. at 735, 112 S.Ct. at 2233.

      . Jones II, 990 P.2d at 250.

      . Warner v. State, 2001 OK CR 11, 29 P.3d 569, 572.

      . Humphreys v. State, 1997 OK CR 59, 947 P.2d 565, 570, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).

      . Warner, 29 P.3d at 572; Hawkins v. State, 1986 OK CR 58, 717 P.2d 1156, 1158.

      . Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 LEd.2d 841 (1985).

      . Morgan, 504 U.S. at 729, 112 S.Ct. at 2229.

      . Warner, 29 P.3d at 573. See also Salazar v. State, 1996 OK CR 25, 919 P.2d 1120, 1128 cert. denied, 528 U.S. 895, 120 S.Ct. 226, 145 L.Ed.2d 190 (1999) (holding that the trial court erred in denying defendant challenges for cause when three jurors indicated they would impose the death penalty for premeditated or intentional murder).

      . Warner, 29 P.3d at 573.

      . Matthews v. State, 2002 OK CR 16, 45 P.3d 907, 915, cert. denied, 537 U.S. 1074, 123 S.Ct. 665, 154 LEd.2d 570 (2002); Warner, 29 P.3d at 574; Young v. State, 1998 OK CR 62, 992 P.2d 332, 338, cert. denied, 528 U.S. 837, 120 S.Ct. 100, 145 L.Ed.2d 84 (1999); Salazar, 919 P.2d at 1128-29; Johnson v. Gibson, 254 F.3d 1155, 1159 (10th Cir.2001), cert. denied, 534 U.S. 1029, 122 S.Ct. 566, 151 LEd.2d 439. See also United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 782, 145 L.Ed.2d 792 (2000) (error where use of peremptory challenge to unseat juror who should have been excused for cause results in seating of biased juror).

      . Hanson used his first peremptory challenge on Fulfaro. His fourth challenge was used for a juror who felt strongly that murder should be taken with a death sentence. [Trial Tr. Vol. 4 589] Hanson's fifth challenge was used for a juror who first said she had a mandatory threshold above which the death penalty must be imposed, then said she would not solely impose the death penalty. [Trial Tr. Vol. 4 649-47] The State's seventh challenge was used against a juror who said the death penalty was appropriate where a life was taken. [Trial Tr. Vol. 5 848] Hanson used his seventh challenge against an African-American juror; he explained the trial court had not allowed him to question this juror about automatically imposing the death penalty but he had shaken his head in agreement with everything Fulfaro said. [Trial Tr. Vol 4 459, Vol. 5 853] Hanson's eighth challenge excused the juror who had stated he believed the entire panel was jaundiced by the voir dire process and thought counsel was not contesting Hanson's guilt. [Trial Tr. Vol. 5 864-65, 885]

      . Thompson v. State, 1974 OK CR 15, 519 P.2d 538, 541.

      . - Our decision to remand Count I for resentenc-ing renders Hanson's claim of prosecutorial misconduct in the second stage largely moot. Hanson complains the prosecutor engaged in name-calling, referring to Hanson as a jackal who lived a reign of terror, committing armed robbery after armed robbery and murder. While prosecutors should avoid name-calling, the comment about multiple armed robberies and murder is an accurate statement of the facts. Hanson claims the prosecutor impugned counsel's credibility by arguing that "we heard about some third party on some grassy knoll or in the bushes. It's always somebody else. It's the grandma that didn't give him attention." The first sentence, again, suggests that counsel is trying to fool the jurors. However, the remaining sentences are a proper comment on Hanson's mitigating evidence. Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 401-02, cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146. The record does not show these borderline statements improperly affected the jury's decision to impose life without the possibility of parole for Count II.

      . Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 314, cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 LEd.2d 282; Childress, 1 P.3d at 1013.

      . Malicoat, 992 P.2d at 401; Hammon, 898 P.2d at 1307.

      . - Hanson incorrectly claims this is vouching for a witness's credibility. Vouching occurs when a prosecutor expresses a personal belief in a witness's credibility, either through explicit assurances or by implying that other evidence, not presented to the jury, supports the witness's testimony. Pickens v. State, 2001 OK CR 3, 19 P.3d 866, 880, cert. denied, 536 U.S. 961, 122 S.Ct. 2668, 153 L.Ed.2d 842 (2002).

      . Robinson v. State, 1995 OK CR 25, 900 P.2d 389, 398.

      . Malicoat, 992 P.2d at 402.

      . 509 U.S. 579, 113 S.Ct. 2786, 125 LEd.2d 469 (1993) (setting standard for reliability of scientific evidence).

      . Skipper v. South Carolina, 476 U.S. 1, 4-5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986); Barefoot v. Estelle, 463 U.S. 880, 896-97, 103 S.Ct. 3383, 3396, 77 LEd.2d 1090 (1983); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 LEd.2d 929 (1976). A defendant must be allowed to present all relevant mitigating evidence, including expert testimony if the expert's specialized knowledge will assist the jury to understand the evidence or determine a fact in issue. Lockett v. State, 2002 OK CR 30, 53 P.3d 418, 429, cert. denied, - U.S. -, 123 S.Ct. 1794, 155 L.Ed.2d 673 (2003); 12 0.$.2001, § 2702. Evidence of good behavior in prison is relevant to the issue of continuing threat. Salazar v. State, 1998 OK CR 70, 973 P.2d 315, 326, cert. denied, 528 U.S. 895, 120 S.Ct. 226, 145 LEd.2d 190 (1999) (State must avoid any argument that defendant's good prison behavior is irrelevant in a capital sentencing proceeding, and State must itself avoid improperly limiting the term "society" by telling jury that the term is not limited to any particular segment of the population); Hain v. State, 1996 OK CR 26, 919 P.2d 1130, 1148, cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 ("society" can apply to prison population, as it is defendant's attitude and actions, not number of people threatened, which determines future dangerousness); Braun v. State, 1995 OK CR 42, 909 P.2d 783, 798, cert. denied, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 559 (1996) ("society" includes prison population, and defendant's attitudes and actions determine future dangerousness); Berget v. State, 1991 OK CR 121, 824 P.2d 364, 374, cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 LEd.2d 79 (1992) (capital sentencing statute must be read broadly as relating to prison life and society at large). This Court has repeatedly upheld the State's use of psychiatric, psychological, or other testimony concerning a defendant's behavior as a predictor of his risk of future dangerousness. See, eg., Williams v. State, 2001 OK CR 9, 22 P.3d 702, 720-21, cert. denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002) (expert evidence of defendant's sexual fantasies and sexually explicit communications while in jail); Moore v. State, 1990 OK CR 5, 788 P.2d 387, 403, cert. denied, 498 U.S. 881, 111 S.Ct 227, 112 LEd.2d 182 (clinical psychologist testified that if released from prison the chance was good that defendant would continue to commit violent criminal acts); Thompson v. State, 1986 OK CR 130, 724 P.2d 780, 785 (clinical psychologist's testimony was used solely to prove the existence of a probability that defendant would commit criminal acts of violence that would constitute a continuing threat to society). We have also upheld the use of evidence describing a defendant's behavior while incarcerated in order to predict future criminal conduct. See, eg., Phillips v. State, 1999 OK CR 38, 989 P.2d 1017, 1040, cert. denied, 531 U.S. 837, 121 S.Ct. 97, 148 LEd.2d 56 (2000) (testimony that while in jail defendant filled a spray bottle with urine and sprayed it on guards who were serving his food, plus family's fear of defendant and contact with local law enforcement, showed a pattern of escalating criminal activity and general disregard for the rules of society); Thornburg v. State, 1999 OK CR 32, 985 P.2d 1234, 1247, cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 LEd.2d 800 (2000) (after he was incarcerated, defendant menaced other inmates and assaulted a jailer); Braun, 909 P.2d at 798 (defendant assaulted a guard in the New Mexico prison system, and Kansas officials twice found homemade weapons in his jail cell); Pennington v. State, 1995 OK CR 79, 913 P.2d 1356, 1371, cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996) (defendant had made threats of violence while in custody). We have said that evidence of adaptability to prison life is legitimate in mitigation where the continuing threat aggravating circumstance is alleged. Welch v. State, 2000 OK CR 8, 2 P.3d 356, 376, cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 LEd:2d 567 (majority of defendant's second stage defense focused on his adaptability to a structured prison environment which defense counsel vigorously argued during closing argument to rebut the State's continuing threat contention).

      . 1998 OK CR 68, 972 P.2d 1157, 1169.

      . 2002 OK CR 31, 110, 61 P.3d 901, cert. denied, - U.S. -, 123 S.Ct. 1631, 155 L.Ed.2d 495 (2003).

      . 1994 OK CR 75, 887 P.2d 1351, 1367, cert. denied, 516 U.S. 858, 116 S.Ct. 164, 133 LEd.2d 106 (1995) (defense expert could not testify about effect on defendant's children of death sentence compared to life without parole, where expert had neither met nor examined the children).

      . 509 U.S. at 593-95, 113 S.Ct. at 2796-97. Factors for consideration include: (1) a method's falsifiability, reliability and feasibility; (2) whether the method is subject to peer review, publication, or other scrutiny by the scientific community; (3) the method's known or potential rate of error; and (4) the proposed technique's general acceptance in the relevant scientific community. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-51, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999), the United States Supreme Court extended the Daubert test to all novel expert testimony. Where the subject of expert testimony has been often used and has long been recognized as proper, the trial court need not make a determination of reliability under Daubert. See, eg., Harris v. State, 2000 OK CR 20, 13 P.3d 489, 493, cert denied, 532 U.S. 1025, 121 S.Ct. 1971, 149 LEd.2d 764 (2001). See also Taylor v. State, 1995 OK CR 10, 889 P.2d 319, 327 (adopting Daubert, we stated Oklahoma imposes additional admissibility requirement only on novel scientific evidence, which uses an uncommon procedure or theory). This Court will not apply Daubert retroactively where scientific subjects have been accepted as valid. Romano v. State, 1995 OK CR 74, 909 P.2d 92, 112, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996).

      . In Proposition VIII(B) Hanson correctly claims the trial court failed to give OUJI-CR (2nd ) 4-74, defining the evidence necessary to support a finding of continuing threat. This instruction should be given at resentencing.

      . Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674, 693 (1984).

      . - OUJI-CR (2nd) 4-79, Notes on Use {emphasis added).

      . (1) Defendant's emotional history; (2) Defendant's family history; (3) Defendant has a five-year-old son; (4) Defendant has never killed anyone before; (5) Defendant had no intention that Jerald Thurman be killed; (6) Co Defendant Miller was the active influence in the crimes and the Thurman murder; (7) Only Rashad Barnes provided direct evidence that Defendant ever pulled the trigger on any gun the day of the murders; (8) Life without parole is a significant punishment; (9) Miller dominated the Defendant; (10) Defendant was a follower. O.R. 295.

      . Hanson's mother and sister both testified that Hanson had a S5-year-old son and was a good father. Second stage evidence showed that, unlike his co-defendant, Hanson had not committed murder before these crimes. First and second-stage evidence showed that co-defendant Miller, not Hanson, killed Thurman and Rashad Barnes's testimony suggested Hanson was unaware Miller was going to kill Thurman and did not intend his death; this circumstance is bolstered by the jury's finding that Thurman's death was felony murder. First and second-stage evidence, from State witnesses Rashad Barnes, Pa-rekh, and Mendez, indicated that co-defendant Miller was an active influence in the Thurman murder and two of the additional armed robberies the two committed (as well as telling Hanson to kill Bowles). The whole of the evidence in both stages supports Hanson's claim that Rashad Barnes gave the only testimony that Hanson ever pulled the trigger on any gun the day of the murders. State witnesses Rashad Barnes, Pa-rekh, and Mendez, as well as Hanson's mother, supported Hanson's claim that he was a follower and was dominated by Miller. Hanson's proposed circumstance, that life without parole is a significant punishment, was supported by common sense, argument, and the jury panel's answers in voir dire, but was not supported by any specific evidence at trial.

      . Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 303.

      . Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978).

      . Gregg v. Georgia, 428 U.S. 153, 194-95, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976).

      . Douglas v. State, 1997 OK CR 79, 951 P.2d 651, 677-78, cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 LEd.2d 159 (1998); Romano v. State, 1995 OK CR 74, 909 P.2d 92, 124, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 LEd.2d 96 (1996).

      . Douglas, 951 P.2d at 678.

      . Ledbetter v. State, 1997 OK CR 5, 933 P.2d 880, 888. In Ledbetter, this error combined with errors in victim impact evidence to require reversal. In Cannon v. State, 1998 OK CR 28, 961 P.2d 838, 853-54, we found the trial court's failure to give the defendant's requested instruction did not require relief because the mitigating circumstance at issue was not the focal point of the defendant's case in mitigation.

      . Hanson also claims this instruction created a reasonable likelihood that the jury applied the challenged instruction in a way that prevented the consideration of constitutionally relevant evidence under Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). We have previously rejected this argument, and will not revisit the issue in this case. Cannon, 961 P.2d at 854; Ledbetter, 933 P.2d at 898.

      . 22 0.9.2001, § 984(2).

      . Hooks, 19 P.3d at 313.

      . In Selsor, 2 P.3d at 352, we held testimony of an unrelated, live, victim was inadmissible as victim impact evidence. We declined to grant relief for this error because the testimony was relevant and admissible to prove the charged aggravating circumstance that the defendant created a great risk of death to more than one person. Neither Mooney's nor Moseby's evidence was relevant to any charged aggravating circumstance, or to any other issue in the first or second stage of trial.

      . Cargle, 909 P.2d at 829.

      . Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1175.

      . Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1175.

      . This point is made clear in the notes on use to OUJI-CR (2d) 4-79, which says the trial judge "should" instruct in the jury on any other mitigating circumstances for which evidence has been introduced. Obviously, this decision will be discretionary, as different trial judge's would surely have differences of opinion regarding what is or what is not mitigating. Furthermore, several mitigating ideas may be combined into one broad statement or separated into very specific statements. The point is that the judge's decision on mitigating evidence is discretionary and should be reviewed only for an abuse of discretion.


source: Caselaw Access Project

author: TOM COLBERT, Vice Chief Judge:

license: Public Domain

text:
    2003 OK CIV APP 54
    Eddie Ray HODGES, Petitioner, v. HODGES ELECTRIC & AIR CONDITIONING, INC., Compsource Oklahoma & /or No Insurance, and the Workers' Compensation Court, Respondents.
    No. 97,835.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Feb. 25, 2008.
    Certiorari Denied June 3, 2003.

      Rex D. Brooks, Oklahoma City, OK, for Petitioner.
    J. William Archibald, Holloway, Dobson & Bachman, Oklahoma City, OK, for Respondents.
   Opinion By

TOM COLBERT, Vice Chief Judge:

T1 Claimant, Eddie Ray Hodges, seeks this court's review of an order of the workers' compensation court's three-judge panel vacating the trial court's order. The panel awarded Claimant additional temporary total disability (TTD) benefits as well as permanent partial disability (PPD) benefits and apportioned the liability for those benefits between Employer, Hodges Electric & Air Conditioning, Inc., (Employer/No Insurance) and Employer's insurance carrier, Comp-source Oklahoma (Employer/Compsource). The issues on review are whether the panel had authority to apportion the liability for the benefits and whether the order is supported by competent evidence. We answer in the affirmative and sustain -the panel's order.

T2 Claimant, an electrician, was the primary stockholder of Employer, a now-defunct corporation. On January 14, 1998, after Employer's operations were suspended, Claimant filed a claim for workers' compensation benefits for cumulative trauma injury to his knees, shoulders, and body as a whole with a last date of exposure of December 31, 1997.

T3 Claimant initially named Farmers Insurance Group as Employer's workers' compensation insurance provider and then added Compsource. Farmers was ultimately dismissed because Claimant "had no aggravating injurious exposure to his knees during the period of insurance coverage [August 1, 1997, through December 31, 1997] for Farmers." Compsource, which insured Employer from February 2, 1996, through May 14, 1997, was left as the only insurance provider. The parties stipulated that Employer had no workers' compensation insurance coverage from January 1, 1996, through February 1, 1996, and from May 14, 1997, through August 4, 1997.

T4 In an order dated December 1, 2000, the workers' compensation trial court concluded that Claimant suffered a work-related injury to his knees, but not to his shoulders, and temporarily set Claimant's TTD compensation rate at $81.08 per week. In an order nune pro tune dated December 19, 2000, the court awarded Claimant TTD for 48 weeks and 4 days to be paid by Compsource, sub-jeet to reimbursement from other responsible parties. Claimant subsequently requested PPD and underpayment of TTD and requested that the trial court consider his compensation rate. Following a trial, the trial court entered its order on January 7, 2002, awarding Claimant PPD, determining his compensation rate for TTD to be $81.08 per week, and apportioning the PPD between Employer/Compsource and Employer/No Insurance.

T5 Claimant appealed to a three-judge panel, which vacated the trial court's order. The panel denied Claimant's claim for injury to his shoulders, but found that he had sustained a work-related injury due to cumulative trauma to his knees. The panel determined that Claimant's knee injury resulted in 21.86% PPD to the right leg (over and above 16.65% pre-existing disability) and 154% PPD to the left leg (over and above 28.1% pre-existing disability). The panel also determined that Claimant's wages established a rate of compensation of $140 per week for TTD and PPD and that Claimant was entitled to an additional two weeks of TTD for the period when he had knee replacement surgery. Finally, the panel apportioned the award, concluding that Employer/Comp-source was liable for one additional week of TTD, 9.26% PPD to Claimant's right leg, and 7.17% PPD to his left leg, leaving Employer/No Insurance liable for the remaining week of additional TTD, 12.6% PPD to his right leg, and 7.7% PPD to his left leg.

16 Claimant now seeks this Court's review. He claims the panel exceeded its authority by apportioning the award between Employer/No - Insurance and - Employer/Compsource. He also contends that portions of the panel's order are not supported by competent evidence.

STANDARDS OF REVIEW

17 Claimant's assertion that the panel lacked authority to apportion his award between Employer/No Insurance and Employer/ Compsource raises a question of law, which we review de novo. Ibarra v. Hitch Farms, 2002 OK 41, 4, 48 P.3d 802, 808-04. The remainder of Claimant's assertions raise issues of fact, for which we employ the any-competent-evidence - standard of - review. Parks v. Norman Mun. Hosp., 1984 OK 58, 12, 684 P.2d 548, 549 In applying this standard, we review the facts, not to determine where the preponderance lies, but only to determine whether the panel's decision is supported by any competent evidence. Id. at " 12, 684 P.2d at 552.

DISCUSSION

T8 This claim is complicated in two ways: First, Claimant was the majority stockholder of Employer, a now-defunct corporation, and Claimant did not receive an hourly or regular wage. Second, Compsource was Employer's insurance provider for only part of the period at issue: February 2, 1996, through May 14, 1997. Employer had no workers' compensation insurance coverage from January 1, 1996, through February 1, 1996, and from May 14, 1997, through August 4, 1997.

I

T9 The first issue we must consider is Claimant's assertion that the panel erred as a matter of law in apportioning the disability between Employer/No Insurance and Employer/Compsource. Claimant argues that a judgment was entered against Employer/No Insurance without it having entered an appearance or being represented by counsel. He also argues that the panel did not have jurisdiction to apportion liability for benefits between two respondents.

T10 In making this argument, Claimant is attempting to wear two hats, taking off one or the other whenever it serves. First, Claimant did not bring this proceeding as Employer/No Insurance's representative, but, instead, brought it against Employer as an individual employee. If Claimant is only Employer's employee, then he is not the real party in interest to raise Employer/No Insurance's interests here. See James Energy Co. v. HCG Energy Corp., 1992 OK 117, ¶4, 847 P.2d 333, 388. If Claimant is serving as Employer/No Insurance's representative and is, therefore, the proper party to raise this argument, he waived it by not objecting at the trial court level to Employer/Compsource's request for apportionment, although the record clearly demonstrates that apportionment was at issue. Davis v. Med. Arts Lab., 1998 OK CIV APP 1, 17, 952 P.2d 52, 54. Furthermore, Claimant's argument that Employer/No Insurance had no notice of its potential liability is belied by the Form 2-"Employer's First Notice of Injury," filed on February 9, 1998, and signed by Claimant in his capacity as Employer's president.

T11 Claimant's argument that the panel exceeded its jurisdiction by apportioning benefits between the two respondents is also without merit. This is, essentially, an apportionment between two insurance carriers, because Employer/No Insurance was effectively self-insured during those times when it carried no workers' compensation insurance. Such apportionment by the workers' compensation court is clearly contemplated by 85 0.9.2001 § 203 of the workers' compensation statutes and has been expressly approved by the Oklahoma Supreme Court. SW. United Indus. v. Polston, 1998 OK 78, ¶ 8, 964 P.2d 210, 212.

112 Claimant relies on Red Rock Mental Health v. Roberts, 1997 OK 188, 116, 940 P.2d 486, 491, wherein the Oklahoma Supreme Court observed that the workers' compensation court "has no jurisdiction to consider a controversy between (a) two insurance compames in which an injured claimant is not interested, (b) an employer and its insurer unless a claimant's right is affected, or (c) an employer and an insurance carrier of another employer if the statutory liability to the claimant is not implicated." (Footnotes omitted.) In Red Rock, an employer's insurance company sought reimbursement for TTD benefits from a subsequent employer, before any adjudication of liability on the part of the subsequent employer. The Court observed that "Inlo party-employer may be saddled with any obligation incident to a servant's on-the-job harm until the servant's claim for that injury has been adjudicated." Id. at T11, 940 P.2d at 490. In this instance, however, Claimant's interest is clearly implicated since there is no basis for holding Employer/Compsource ultimately liable for any portion of Claimant's benefits accruing outside of its insurance period. Unlike Red Rock, Employer's liability has been adjudicated, although it had insurance through Compsource for part of the period giving rise to that lability. There is, further, no indication of a contractual dispute between Employer and Compsourcee-Comp-source has not argued that it is not Hable for benefits accruing during the period it insured Employer and the parties stipulated to the dates Employer operated without insurance. The review panel did not exceed its authority by apportioning Claimant's award between Employer/No Insurance and Employer/ Compsource.

II

113 Claimant next contends there is no competent evidence to support the panel's denial of a work-related injury to his shoulders. The record, however, contains ample competent evidence to support the panel's conclusion. Claimant testified that he hurt his left shoulder falling on ice at home on December 25, 1997. Although he previously had problems with "bursitis" in his left shoulder in 1994, he sought no treatment, aside from seeking a permit from his physician for cross-bow hunting. Claimant testified that he deliberately did not initially treat the shoulder injury as work-related:

[The only additional shoulder treatment was jlust the preparation for surgery. And I didn't want to fool with workers' comp anymore because I know what a ripoff people you are or your clients are, and I was going to have it done by insurance. And Dr. Harkness or Dr.... Waltner. Put it in one of his reports that it was work-related so the insurance company throwed it out. So I was already set up. Had a date to go in and get the shoulder replaced and everything.

T14 Medical evidence also supports the panel's determination that Claimant's shoulder injuries were not work-related. In his January 15, 1999, report, LeRoy D. Young, D.O., attributed Claimant's shoulder problems to arthritis, not work. Further, Dennis E. Foster, M.D., stated in his November 30, 1998, report: "It would be my opinion that [Claimant] would have developed the degree of arthritis that he has in his shoulders and knees regardless of his occupation." Although Dr. Foster continued, "That is not to say that his occupation has not contributed at least in some way," his report bolsters Dr. Young's conclusion that the condition of Claimant's shoulders is not related to his work.

1 15 Although there is evidence to the contrary, the existence of that evidence is immaterial, since we are searching only for competent evidence to support the workers' compensation court's factual finding. Owings v. Pool Well Serv., 1992 OK 159, ¶7, 843 P.2d 380, 382. We will not reweigh the evidence. Edwards v. Amoco, 1989 OK CIV APP 15, ¶ 17, 776 P.2d 566, 569.

TII

A

116 Claimant next argues the workers' compensation court erred in assigning a percentage of the disability in each knee to underlying degenerative arthritis, since such preexisting disability was not shown to be previously adjudicated or obvious and apparent. The review panel determined Claimant was a total of 38.51% PPD in his right leg, with 16.65% preexisting, and a total of 38.5% PPD in his left leg, with 28.1% preexisting. - "It is proper for a trial court to apportion disability caused by prior off-the-job injury and impairment caused by work-related aggravation of such a prior injury, where the evidence warrants." TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 39 n. 17, 829, P.2d 15, 29 n. 17. The panel's apportionment was supported by competent evidence, both as to the existence of the preexisting injuries and their amount.

{17 Employer/Compsource submitted the October 1, 2001, report of Andrew C. John, M.D., who noted that Claimant had surgery on his left knee for a football injury in 1964 or 1965 and that an x-ray in 1990 showed advanced osteoarthritis in his left knee. Dr. John diagnosed Claimant with "[elxacer-bation of degenerative arthritis of both knees" "related to cumulative trauma," and several injuries to the left knee and "[dliffuse degenerative joint disease (osteoarthritis)" "unrelated, pre-existent or subsequent to cumulative trauma." (Emphasis omitted.) Dr. John concluded that, following his knee replacements, Claimant was a total of 37% PPD to the right leg, with 16% preexisting, and a total of 37% PPD to the left leg, with 23.5% preexisting.

18 Claimant introduced the November 6, 2001, report of Laurence H. Altshuler, M.D., who concluded that Claimant was a total of 40% PPD to each leg, with 60% of that amount (or 24% PPD) preexisting. Dr. Altshuler also concluded, however, that the work-related impairment to each leg accruing during the relevant time period was 14%, saying "[the remainder of the impairment is due to pre-existing disease, previous injuries and from impairment when he worked from August 4, 1997 until December 31, 1997." The amounts determined by the review panel fall within the range of the experts' opinions and are, therefore, supported by competent evidence. See Green Country Rest. v. Carmen, 1978 OK 81, ¶18, 579 P.2d 1281, 1284, and Yuba Heat Transfer v. Wiggins, 1981 OK 72, ¶7, 630 P.2d 783, 784.

B

119 Claimant also contends that, even if it is legally proper (as discussed above), the panel's apportionment of liability between Employer/Compsource and Employer/No Insurance is "not fair." Of the total compensability for Claimant's knees of 21.86% for the right and 15.4% for the left, the review panel assigned 9.26% for the right, 7.7% for the left, and one additional week of PPD benefits to Employer/Comp-source and 12.6% for the right, 7.7% for the left, and one additional week PPD benefits to Employer/No Insurance.

1 20 Without addressing whether Claimant is the proper party to raise this issue, we turn again to the reports of Dr. John and Dr. Altshuler and find competent evidence to support the panel's apportionment. Dr. John concluded that Claimant suffered 4.5% PPD to his left leg and 2.5% PPD to his right leg during the period when Compsource insured Employer and 9% PPD to his left leg and 18.5% PPD to his right leg during the period when Employer had no insurance. Dr. Altshuler concluded that Claimant suffered 10% PPD to each leg during the period when Compsource insured Employer and 4% PPD to each leg during the period when Employer had no insurance. The panel's apportionment falls within the range of the evidence and is, therefore, supported by competent evidence. See Green Country, 1978 OK 81, ¶ 18, 579 P.2d at 1284; Yuba Heat, 1981 OK 72, ¶ 7, 680 P.2d at 784.

IV

121 Claimant next argues there is no competent evidence to support a compensation rate of only $140.00 for TTD and PPD, as ordered by the review panel. He asserts that, based on 85 0.S8.2001 § 218), the evidence he presented supported the maximum rates for both.

I 22 The $140 rate set by the review panel is based on the salary attributed to Claimant in Employer's Compsource insurance policy. Claimant introduced this policy into evidence at trial and argued that the $140 rate was the least the court could award. There is, therefore, competent evidence to support the compensation rate set by the panel.

123 There is also contradictory evidence. Claimant testified about the level of compensation an electrical contractor can command and testified as to Employer's billing rate for his services and the number of hours he worked each week. However, it does not appear that he offered any documentary evidence to bolster his testimony regarding his earnings and, regardless, the workers' compensation court was not compelled to accept Claimant's evaluation of his earning capacity. See TRW/Reda Pump, 1992 OK 31, { 28, 829 P.2d at 27 ("[QJuestions of credibility are for the trier of fact in workers' compensation cases."). Moreover, "it is not the province of [this] court to weigh conflicting evidence to determine where the preponderance lies." Id.

y

€ 24 Finally, Claimant argues that the review panel failed to make specific findings and conclusions of law concerning underpayment of his TTD benefits. He complains that, even though the higher compensation rate applied to the additional two weeks of TTD awarded, the panel's order did not address the fact that the previously-ordered TTD benefits were paid at the lower level ordered by the trial court. Claimant contends the review panel should have recognized that underpayment and ordered its correction.

125 Employer/Compsourcee makes the practical argument that it paid all of the PPD benefits originally ordered. Even though Compsource paid the TTD benefits at the lower rate originally ordered, it did so with the trial court's acknowledgment that its right of reimbursement was reserved. If the review panel had revisited the amount of those benefits, it would also have apportioned them. This would have left Claimant with no claim for additional benefits from Employer/Compsource; indeed, it might have resulted in an order for Employer/No Insurance to reimburse _ Employer/Compsource. We agree with Employer/Compsource and decline to disturb the panel's order.

CONCLUSION

26 The panel's order granting Claimant additional TTD benefits as well as PPD benefits for cumulative trauma injuries to his knees is supported by competent evidence. The panel's apportionment of those benefits is within the workers' compensation court's jurisdiction and is also supported by competent evidence. The review panel's order is, therefore, sustained.

1127 SUSTAINED.

STUBBLEFIELD, J., and RAPP, J. (sitting by designation), concur.

      . Claimant did not appeal from the order dismissing Farmers.

      . Claimant asserts errors in both the trial court's order and the review panel's order. Once the review panel vacates the trial court's order, its order replaces the trial court's and "there is never more than one final decision to be reviewed in the appellate courts." Parks v. Norman Mun. Hosp., 1984 OK 53, 111, 684 P.2d 548, 551. We, therefore, review only the panel's order.

      . In practical terms, the result of apportionment is that Claimant may receive less than half the total benefits awarded for PPD, since he is unlikely to recover benefits from Employer/No Insurance.

      . - We find no merit to Claimant's suggestion that Employer/Compsource's attorney behaved inappropriately in obtaining the apportionment. Further, as explained earlier in this opinion, either Claimant is not representing Employer/No Insurance, in which case he is not the proper party to raise this issue, or he is representing Employer/No Insurance, in which case he waived the issue by not raising it before the trial court. See James Energy Co. v. HCG Energy Corp., 1992 OK 117, ¶4, 847 P.2d 333, 338, and Davis v. Med. Arts Lab., 1998 OK CIV APP 1, ¶ 17, 952 P.2d 52, 54.

      . There is no explanation of the discrepancy between 24% preexisting PPD, 14% compensable PPD, and 40% total PPD.


author: ADAMS, Presiding Judge.

text:
    2003 OK CIV APP 51
    MATERIAL SERVICE CORP., Plaintiff/ Appellant, v. CITY OF CLAREMORE, Rogers County Metropolitan Area Planning Commissioner and Rogers County Commissioners, Defendants/Appellees.
    No. 98,218.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 9, 2003.

      John H.T. Sheridan, Sheridan Law Office, Coweta, OK, for Plaintiff/Appellant.
    Michelle Schultz, Rogers County Assistant District Attorney, Claremore, OK, for Defendants/Appellees.
   OPINION

ADAMS, Presiding Judge.

T1 Material Service Corporation (Material Service) appeals from an order granting a motion for summary judgment in favor of the City of Claremore, Rogers County Metropolitan Area Planning Commission and Rogers County Commissioners (collectively, Planning Commission), the effect of which was to end their lawsuit seeking a declaratory judgment. Because we conclude the undisputed facts are not consistent with judgment for Planning Commission, we reverse the trial court's order.

12 Material Service challenged the annexation of land it leased into the area subject to zoning by Planning Commission because Planning Commission did not give proper notice of the "public hearing" under 19 0.8. 2001 § 866.29. Material Service argues, inter alia, the notice was deficient because the subject of the hearing, the date, the time and the place of the hearing was not published at least fifteen days prior to the public hearing. We agree.

T3 Planning Commission argues, and the trial court agreed, that there was "substantial compliance" with the notice provision. According to Planning Commission, a formal notice was published on February 10, 2000, in the Claremore Progress and the Oologah Lake Leader newspapers along with a map of the covered area, including the land leased by Material Service. The "notice" simply stated:

CITY - OF - CLAREMORE-ROGERS COUNTY METROPOLITAN AREA PLANNING COMMISSION
February 8, 2000
Proposed area to be included within the jurisdiction of the City of Claremore-Rog-ers County Metropolitan Area Planning Commission.
[legal descriptions of 41 parcels omitted]
ALL THE ABOVE IS LOCATED IN ROGERS COUNTY, OKLAHOMA.
DESCRIBED - AS EVERYTHING WEST OF THE VERDIGRIS RIVER TO WASHINGTON AND TULSA COUNTY, AND EVERYTHING NORTH OF THE CANEY RIVER TO NOWATA COUNTY.
This does not include the incorporated areas with the City limits of Oologah and Talala.
/s/ Bill Collins Assistant Director.

T4 An article in the news portion of the Oologah Lake Leader published that same day advised proposed changes to the unineor-porated areas were to be considered by the "Rogers County Commissioners" and that "[the Planning Commission will meet on the issue Feb. 25 and the County Commissioners will address it on Feb. 28." Neither of these accounts gave any information concerning the time or place of any public hearing. According to Planning Commission, reading these two publications together gave adequate notice, and other articles published later supplied missing information such as the time and place of the public hearing.

15 At the February 25, 2000 meeting, Planning Commission discussed and approved recommending annexation of land including the parcel under lease to Material Service. The annexation was approved at the February 28, 2000 meeting of county commissioners.

16 In addressing Material Service's claim that summary adjudication was inappropriate, we must examine the pleadings, depositions, affidavits and other eviden-tiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and Planning Commission was entitled to judgment as a matter of law. Perry v. Green, 1970 OK 70, 468 P.2d 488. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Material Service. Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535. We are limited to the issues actually presented below, as reflected by the record which was before the trial court rather than one that could have been assembled. Frey v. Independence Fire and Casualty Company, 1985 OK 25, 698 P.2d 17.

T7 We need not decide, as have some courts in other jurisdictions, if the publication of information elsewhere in a newspaper than in a legal notice will somehow cure deficiencies in the legal notice. The news stories cited by the Planning Commission clearly fail to impart the critical information lacking in the February 10, 2000 notice within the requisite time period, that is, "at least fifteen (15) days prior to the date of such hearing." 19 0.8.2001 § 866.29. That being so, there was no cause for any application of a "totality of cireumstances" analysis.

T8 Significantly, § 866.29 requires notice of "public hearing" fifteen days prior to the hearing. Without the fundamental information that a hearing will be held and information about the time, place and date for the hearing, a purported "notice" gives no notice. "When notice is a person's due, process which is a mere gesture is not due process." - Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 815, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The "notice" provided was fatally defective, and, contrary to the order of the trial court, those defects were not remedied by the later publication of news stories. Without timely information about the date, time and place of hearing, the "notice" did not comply with the statute.

T9 On the record submitted, Planning Commission did not show it was entitled to judgment as a matter of law. The matter is remanded for further proceedings consistent with the views expressed.

REVERSED AND REMANDED.

JOPLIN, C.J., and BUETTNER, J., concur.

      . Planning Commission raised other defenses which they claimed would deny Material Service relief, even if the notice was not proper. The trial court did not address those defenses, and we do not express any opinion on them.


author: KENNETH L. BUETTNER, Judge:

text:
    2003 OK CIV APP 58
    Jay CROCKER, Plaintiff/ Appellant, v. Sheryl CROCKER, Defendant/Appellee.
    No. 96,950.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 23, 2003.

      Gerald C. Dennis, Dennis & Branam, Antlers, OK, for Plaintiff/Appellant.
    Shannon Reasor, Stamper, Hadley & Rea-sor, Atoka, OK, for Defendant/Appellee.
   Opinion by

KENNETH L. BUETTNER, Judge:

T1 Plaintiff/Appellant Jay Crocker (Husband) appeals the property division, custody award, and other alleged errors at trial in the divorcee proceeding between Husband and Defendant/Appellee Sheryl Crocker (Wife). Husband asserts errors in the trial court's ruling that a ranch purchased during the marriage was Wife's separate property, and the decision to award sole custody of the minor child to Wife. Because the trial court's finding that the ranch was Wife's separate property was clearly contrary to the weight of the evidence, we reverse that portion of the decree and remand for an equitable division of the ranch proceeds as marital property. We find that the decision to award custody of the child to Wife was not against the clear weight of the evidence and affirm that order.

T2 With respect to the division of property, Husband's specific complaint is that the trial court erred in determining that Wife never intended to make a gift to Husband of half the value of ranch property, and that therefore the proceeds from the sale of the 2,048 acre ranch was Wife's separate property.

1 3 Husband and Wife married July 2, 1997 in Arizona. After the marriage, Husband and Wife came to Oklahoma and purchased the ranch in November 1997. There is no dispute that the $387,000 earnest money and down payment on the ranch came from assets Wife had before the marriage. The ranch was titled in joint tenancy. Husband argues that although Wife provided the purchase money, Husband provided the labor for improvements which increased the value of the land. Husband and Wife purchased the ranch for $716,726 in 1997, and sold it for $860,580 in January 2001. After paying the mortgage and fees, $424,196.05 was placed in trust pending the outcome of the divorce proceedings.

14 In the decree, the trial court included the following provisions:

11. At the time the parties were married in July 1997, (Wife), owned and possessed money, horses and other property, both real and personal, valued in excess of one and one half million dollars.
12. It is uncontested that (Wife), provided all of the purchase money for the Crocker Ranch in Atoka County, Oklahoma, and for the operation of the ranch.
13. Prior to the marriage of the parties, (Wife) purchased a CAVCO mobile home, . and thereafter (Wife) paid the cost to move the same to Oklahoma and located it on the Crocker Ranch property as temporary housing. In connection with the ultimate sale of the Crocker Ranch, the mobile home was sold for the sum of $79,000, which the court has heretofore ordered to be paid to (Wife) as her sole and separate property. The prior order of the Court is incorporated by reference and confirmed by this Decree of Divorce.
14. All ranch livestock, feed, ranch machinery and equipment were acquired with money provided by (Wife), except for: (a) $40,000.00 borrowed in February 2000 from the Bank of Kremlin, ... for the purchase of sheep and goats; and (b) $20,000.00 invested by (Husband's) sister, Mrs. Diane Crocker.
15. During the marriage, (Husband), did not contribute money or property for the purchase or operation of the Crocker Ranch and he did not earn wages or other compensation during the marriage. (Husband) did work on the ranch in conjunction with hired ranch hands and received his total subsistence without charge while doing so. 16. In purchasing the ranch and accepting title from sellers, (Wife) was not represented by separate legal counsel and was not advised to obtain legal counsel.
17. Several witnesses, including Mr. David Youngblood, legal counsel responsible for the closing and preparation of documents, ... cannot remember if (Wife) and (Husband) were explained the different ways title to property could be held and the possible legal effect of each. 18. No one explained to (Husband and Wife) what the legal effect of a joint tenancy warranty deed was, or even that (Wife) could hold the property in her name only. 19. (Wife) did not intend or agree to make a gift of one-half interest in the Crocker Ranch to (Husband), and no gift was in law or in fact so made to (Husband). Therefore, the funds on deposit in ... the approximate amount of $424,000.00 are the separate property of (Wife). ...

115 Husband asserts that when property is purchased by one spouse with separate assets during the marriage and placed in joint tenancy, a presumption arises that the property becomes marital property and that the spouse intended a gift of one-half interest in the property, citing Chastain v. Posey, 1983 OK 46, 665 P.2d 1179. Husband argues the evidence did not support a finding that this presumption was rebutted, that the evidence did not support the trial court's finding that Wife was unaware that the ranch could be titled in her name only, and also that nothing required Wife to be represented by separate counsel during the purchase of the ranch.

T 6 The record reveals that throughout the divorcee proceedings, Wife asserted the ranch, and later its proceeds, were her separate property. At trial, Wife testified that she and Husband entered a contract for the purchase of the ranch, but then stated "I made a purchase agreement. ..." Wife also testified that when she and Husband met and married in Arizona, she owned a home there, debt free, valued at $300,000. Wife explained that Husband was unhappy in Arizona and the couple therefore came to Oklahoma to buy land. Wife mortgaged her Arizona home to pay for the ranch property in Oklahoma Wife acknowledged that she signed the purchase contract for the ranch at the office of Janet Jenkins and Joe Black, and that the contract showed Wife and Husband as the buyers of the ranch. Wife testified that at that time she did not tell anyone that she wanted to buy the property in her name alone. Wife also acknowledged the warranty deed for the ranch which granted the property to Husband and Wife as joint tenants. Wife testified that she first saw the warranty deed during the divorcee proceedings. Wife later agreed she probably saw the warranty deed before that time, but she did not read it until the divorcee proceedings began and she did not know the meaning of joint tenancy with right of survivorship. Wife testified she did not know she had the option to purchase the ranch in her individual name.

T 7 Wife also agreed that she and Husband both signed an agreement to assume the note on the property from the sellers for the amount of $310,000. Wife testified that Husband was legally obligated to pay the note, just as she was, but she stated that Husband "didn't have anything to lose." Wife testified she paid $337,795 cash to complete the purchase. Wife acknowledged that when she filled out the homestead exemption form she listed both herself and Husband as the owners of the property.

18 Wife testified that she and Husband both did the work required to improve the land. Wife testified that she purchased cattle to run on the land and that she was responsible, along with Husband, for feeding the cattle and other livestock. Wife estimated that she contributed about $500,000 to the ranch during the four years the parties owned it, which included money for the land, livestock, and equipment. Wife identified the exclusive sales listing in which she and Husband listed the ranch for sale in August 2000. Wife testified she never told anyone the ranch was her individual property. Wife explained that she still was unaware she had a choice as to the names included on the deed and that she thought that both names on the deed would have to be listed as sellers in order to sell the property. Wife also identified the purchase contract entered January 26, 2001 in which Noah and Roger Springer agreed to purchase the ranch for $860,580, and included the names of Husband and Wife as sellers. Husband and Wife also signed the joint tenancy quit claim deed conveying the ranch to the Springers. Wife testified that at the closing March 6, 2001 (after the petition for divorcee had been filed), the lawyers involved realized there was a dispute between Wife and Husband over ownership of the ranch.

T9 Husband testified that when he and Wife went to Janet Jenkins' office to sign the purchase contract on the ranch, Wife stated she wanted both of their names on the contract. Husband stated that Wife's explanation was that she was putting in the money and Husband was going to be doing all the work, so the ranch should be in both of their names.

1 10 Attorney David Youngblood closed the sale of the ranch. He testified first that he assumed he asked Husband and Wife how they wanted the ranch to be titled. He later stated that he was certain that Husband and Wife told him that joint tenancy was appropriate. Youngblood stated he was aware that the money for the purchase came from Wife.

T11 In Chastain, supro, the Oklahoma Supreme Court explained the presumption of a gift which arises when one spouse uses separate property to purchase property during marriage. The court quoted the original statement of the rule in Oklahoma from the case of Mendenhall v. Walters, 1916 OK 524, 157 P. 782, 58 Okla. 598:

The rule is, where a husband purchases lands with his own money and takes title thereto in the name of his wife or in the joint name of himself and wife, no trust arises in favor of the husband by reason thereof in the lands standing in the name of the wife, but the presumption of law is, in the absence of evidence to the contrary, that an advancement or gift was intended.

In Chastain, shortly after the parties' marriage, they placed most of their assets in joint tenaney. 665 P.2d at 1182. The trial court found that the parties simply intended to place the property in joint tenancy for as long as they were married. Id. The trial court also placed the burden on the wife to prove that the husband intended to make a gift of half the property. Id. On appeal, the Supreme Court noted the rule above and explained that "in the absence of clear and convincing evidence to the contrary, the presumption is made that where a spouse furnishes consideration for a property conveyance and places title thereto in joint tenancy, an advancement or gift of one-half interest is intended." Id. at 1188. The court found there was no evidence presented at trial to rebut the presumption. Id. The court therefore reversed the property division award and remanded for new trial on the issue of division of jointly acquired property. Id.

] 12 In this case, Wife relies on Larman v. Larman, 1999 OK 83, 991 P.2d 536, which Wife contends requires affirmance of the trial court's decision that Wife did not intend to give Husband one-half interest in the ranch. In Larman, the wife inherited two homes and assets from her mother during the marriage. The wife used the inherited money to purchase land next to one of the homes and "without any direction from the wife, the sellers conveyed the lot to the wife and husband as joint tenants." Id. at 12. The wife later refinanced the mortgages on both homes and at that time the mortgagee required the wife to place title to both properties in the names of the spouses as joint tenants. Id. at 18. When the parties separated, they each lived in one of the homes. The trial court declared one home to be the wife's separate property, and the other was characterized as spousal property. Id. at 14.

113 In Larman, the wife explained that she "did not understand the legal consequences of changing the ownership regime by transferring title to her and her husband as joint tenants in the land." Id. at 118. The court also noted the husband's testimony indicated that the wife had never told him that she was making a gift to him. Id. at T 14. Additionally, there was evidence that the mortgage company had insisted that the property be placed in joint tenancy in order to refinance the mortgage. The court concluded that the presumption of a gift was overcome, and reversed the trial court's decision that the inherited home was marital property. Id. at 1 15-16.

114 In this case, Wife allowed the property to be placed in joint tenancy, and the presumption of a gift arose. Wife testified that it was not her intent to make a gift of the money used to purchase the ranch. Wife also indicated that she was unaware that she had a choice in how the ranch property was titled. However, Husband presented evidence that Wife was skilled in property transactions and had purchased property with her first husband and also on her own. Husband argued that Wife therefore knew what she was doing when she took the ranch titled in joint tenancy. Husband also testified that Wife stated the ranch was "theirs." - Other witnesses testified that Wife referred to the ranch as belonging to Wife and Husband. The attorney who closed the purchase testified that Wife indicated she wanted the property placed in joint tenancy.

15 Beyond Wife's testimony at trial that she did not intend to give Husband a half interest in the ranch by placing it in joint tenancy, there is no other evidence which might rebut the presumption of a gift based on the purchase of joint tenancy property with separate funds during the marriage. The presumption would be meaningless if it could be overcome by nothing more than testimony of lack of intent by the party hoping to avoid the effect of the presumption, particularly where there is other evidence supporting an intent to gift. Wife's actions, along with testimony of the other witnesses supports a finding that Wife intended to gift half the ranch to Husband. Only Wife's trial testimony attempts to rebut the presumption. The trial court's conclusion that the presumption of a gift was overcome in this case is against the clear weight of the evidence. We therefore reverse the trial court's finding on this issue and remand for an equitable division of the ranch proceeds.

:116 Husband's remaining argument is that the trial court erred in awarding sole custody of the minor child to Wife. Child custody decisions are matters of equitable cognizance, and we will not disturb an award of custody unless it is against the clear weight of the evidence. Kahre v. Kahre, 1995 OK 138, 916 P.2d 1355, 1860. We have reviewed the record and find that the award of custody to Wife is not against the clear weight of the evidence. There was evidence that both parties were good parents. Husband and Wife also both presented testimony tending to show brief lapses in good parenting on the part of the other. The evidence revealed that the minor child, born July 16, 1997, had bonded with his half sister (Wife's child from her first marriage) and that Wife had been the primary care giver for the minor child since his birth. Husband's plan for daycare was either to take the boy along to do ranch work, or to leave him with his sister. Wife testified her mother planned to live with Wife in order to provide in-home daycare. We find no reason to disturb the custody award.

AFFIRMED IN PART/REVERSED IN PART AND REMANDED.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . Wife asserted that the down payment on the ranch was her separate property which she had inherited from her first husband. Wife also asserted that the mobile home which the parties installed on the ranch, and which was their primary residence, was purchased by Wife with her separate funds for $71,000 prior to the marriage. Wife stated she initially put down $50,000 cash, which was her own money, for the ranch. The record contains a check from Wife's personal checking account for $50,000 made out to the law firm of Moore, Mowdy and Youngblood, for the escrow required on the assumption of the mortgage. The record also contains a note to Wife only from realtor Janet Jenkins with details of the sale and the value of the ranch. Another note from Jenkins to someone named Connie states that Wife is the one getting the money for the ranch purchase.

      . Wife sold the home in Arizona in 1999. The settlement statement on that sale states that the seller is "Sheryl Crocker, wife of Jay Crocker, a married woman as her sole and separate property." Counsel for Husband inferred that Wife knew that she could be married and still sell that house as separate property, in order to discount Wife's testimony that she did not know she had a choice not to take title to the ranch in joint tenancy with Husband. Wife asserted that the settlement statement was prepared for her and that she did not direct the closing company to draft it a particular way.

      . Although it does not impact our decision, we note our disagreement with Husband's assertion that the divorce decree indicated that Wife should have been afforded independent legal representation when the ranch was purchased. The trial court simply relied on that as a factor supporting its conclusion that Wife did not intend to make a gift of half the ranch to Husband.