author: GURICH, C.J.

text:
    Thomas E. SOUTHON, Plaintiff/Appellant, v. OKLAHOMA TIRE RECYCLERS, LLC, Defendant/Appellee.
    No. 116,888
    Supreme Court of Oklahoma.
    FILED MAY 21, 2019
    Rex W. Thompson and Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, OK, for Thomas E. Southon, Appellant -and-
    Bob Burke, Oklahoma City, OK, for Thomas E. Southon, Appellant
    J. Clay Christensen, T.P. Howell and Lisa M. Molsbee, Christensen Law Group P.L.L.C., Oklahoma City, OK, for Oklahoma Tire Recyclers, LLC, Appellee
   GURICH, C.J.

¶1 The issues presented to this Court are: (1) whether 85A O.S.Supp. 2013 § 7 unconstitutionally restricts a plaintiff's right to jury trial, (2) whether section 7 denies Southon his right to due process, (3) whether section 7 wrongfully classifies workers' compensation claimants separately from other wrongful termination victims, and (4) whether a Burk tort is available to such plaintiffs in the district court. We conclude that Southon's four assignments of error are without merit and affirm the judgment of the district court.

Facts and Procedural History

¶2 Appellant Thomas Southon was employed by Oklahoma Tire Recyclers, LLC ("Employer"). On September 13, 2016, Southon sustained an injury while on the job and filed a claim for workers' compensation benefits. Employer fired Southon less than a month after he suffered the injury. Southon filed an action in the Creek County District Court, alleging Employer terminated him as retaliation for seeking workers' compensation benefits. Southon's petition further requested a declaratory ruling that 85A O.S.Supp. 2013 § 7 is unconstitutional.

¶3 Appellee Employer moved to dismiss the action, arguing that the Workers' Compensation Commission, and not the district court, has sole jurisdiction over wrongful termination claims involving workers' compensation benefits. The district court judge entered an order sustaining Employer's Motion to Dismiss. Further, the lower court found section 7 did not violate the Oklahoma Constitution. Southon appealed the ruling and we retained the case. We now affirm the district court.

Standard of Review

¶4 The subject of this appeal is Employer's 12 O.S.2011 § 2012(B)(1) Motion to Dismiss, which was granted by the district court. "The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts." Young v. Station 27, Inc., 2017 OK 68, ¶ 8, 404 P.3d 829, 833. As such, whether an action should have been dismissed for lack of subject matter jurisdiction is a question of law this Court reviews de novo on appeal. Id.

Analysis

A Wrongful Discharge Claim Brought Pursuant to 85A O.S.Supp. 2013 § 7 Is Not an Action with a Guaranteed Right to Trial by Jury under Article II, Section 19 of the Oklahoma Constitution

¶5 Southon asserts 85A O.S.Supp. 2013 § 7 is unconstitutional because, by restricting jurisdiction to the Workers' Compensation Commission, it prevents claimants from having their cases heard by a jury. He argues that this violates article II, section 19 of the Oklahoma Constitution, which provides in relevant part that "[t]he right of trial by jury shall be and remain inviolate." Okla. Const. art. II, § 19. This Court has consistently interpreted "the right of trial by jury" to mean "the right as it existed in the territories at the time of the adoption of the Constitution." State, ex rel. Pruitt v. Native Wholesale Supply, 2014 OK 49, ¶ 24, 338 P.3d 613, 621 (citing A.E. v. State, 1987 OK 76, ¶ 11, 743 P.2d 1041, 1044 ; Md. Nat'l Ins. Co. v. Dist. Court of Okla. County, 1969 OK 73, ¶ 0, 455 P.2d 690, 690 (Syll. ); Keeter v. State ex rel. Saye, 1921 OK 197, ¶ 0, 82 Okla. 89, 198 P. 866, 866 (Syll. )).

¶6 Oklahoma did not adopt a workers' compensation system until 1915. Young, 2017 OK 68, ¶ 13, 404 P.3d at 835. Consequently, the first cause of action based on the wrongful termination of an employee for filing a workers' compensation claim was created by the Retaliatory Discharge Act, enacted in 1976 and codified as part of the Workers' Compensation Act at 85 O.S.Supp. 1976 §§ 5 - 7. See Glasco v. State ex rel. Okla. Dep't of Corr., 2008 OK 65, ¶ 10, 188 P.3d 177, 182 (citing 1976 Okla. Sess. Laws, ch. 217). "As originally enacted, the statutes prohibited retaliatory discharge of an employee for participation in workers' compensation proceedings in § 5, provided for damages and reinstatement in § 6, and vested jurisdiction in the district courts to restrain employer violations in § 7." Id. This Court has repeatedly emphasized that the "obvious object" of the original Retaliatory Discharge Act was to "provide rights and benefits to employees that were not recognized by the common law at-will employment doctrine ." Id. (emphasis added); see also Young, 2017 OK 68, ¶ 13, 404 P.3d at 835-36. Accordingly, an action for retaliatory discharge predicated on the filing of a workers' compensation claim, is a "statutory tort" created by the Legislature in 1976 and the subsequent amendments to the workers' compensation statutes. It is not an action which was originally guaranteed the constitutional right to a trial by jury.

¶7 Nevertheless, the right to a jury trial may be expanded by constitutional amendment. See A.E., 1987 OK 76, ¶ 11, 743 P.2d at 1045 (acknowledging the right to a jury trial in termination proceedings because the 1969 amendment to article II, section 19 modified the Constitution and expressly extended the right to juvenile proceedings). However, none of the three amendments to article II, section 19 since its creation has either expressly or impliedly created a right to a jury trial for workers' compensation proceedings or a retaliatory discharge claim. See id. ¶ 12, 743 P.2d at 1045 ; see also Okla. Const. art. II, § 19 (1952); Okla. Const. art. II, § 19 (1969); Okla. Const. art. II, § 19 (1990). Because such an action was solely a creature of statute and not one guaranteed the right to a trial by jury at the time our constitution was adopted, article II, section 19 does not provide a basis for determining the relevant statute is unconstitutional. Therefore, we conclude 85A O.S.Supp. 2013 § 7 does not violate article II, section 19 of the Oklahoma Constitution and Southon's retaliatory discharge claim is not guaranteed the right to a trial by jury.

85A O.S.Supp. 2013 § 7 Does Not Deny Claimants Due Process in Violation of Article II, Section 7 of the Oklahoma Constitution or the Fourteenth Amendment of the U.S. Constitution.

¶8 Southon asserts 85A O.S.Supp. 2013 § 7 is unconstitutional because it denies him basic due process in violation of article II, section 7 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution. The due process guarantee of the Oklahoma Constitution is generally coextensive with those rights protected by the Fourteenth Amendment to the United States Constitution. Graham v. D & K Oilfield Servs., Inc., 2017 OK 72, ¶ 14, 404 P.3d 863, 867. "The party seeking a statute's invalidation as unconstitutional has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Oklahoma Constitution." Id. ¶ 11, 404 P.3d at 867. We may not set aside legislation for violating substantive due process unless "it is clearly irrelevant to the policy the Legislature may adopt or is arbitrary, unreasonable or discriminatory." Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 27, n.46, 373 P.3d 1057, 1072. When examining this question we must ascertain the following

(1) if there is a legitimate government interest (a) articulated in the legislation or (b) championed by the parties or (c) expressed by a recognized public policy in support of the legislation, and (2) if that interest is reasonably advanced by the legislation.

Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 28, 373 P.3d 1057, 1072. Southon argues that the jurisdictional limitation and the $ 100,000 cap on back-pay in 85A O.S.Supp. 2013 § 7 are arbitrary and not rationally related to a legitimate state interest.

¶9 In Graham v. D & K Oilfield Services, Inc., this Court upheld a workers' compensation statute which limited employees' temporary total disability benefits for hernias. 2017 OK 72, 404 P.3d 863. In Graham, the employee sustained a work-induced hernia on the job site and timely pursued compensation under the Workers' Compensation Act. Id. ¶ 2, 404 P.3d at 865. Although the employee's injury persisted, his temporary total disability benefits were capped according to the six-week limitation of 85A O.S.Supp. 2013 § 61. Id. ¶ 6, 404 P.3d at 866. The employee challenged the constitutionality of section 61 as a denial of due process. Id. ¶ 13, 404 P.3d at 868. Using his own injury as an example, the employee argued that six weeks of temporary total disability benefits was insufficient to compensate injured workers and that such a temporal restriction on damages was an arbitrary limitation not rationally related to any legitimate state interest. Id. ¶ 17, 404 P.3d at 869. Although the cap would not entirely compensate this particular employee, this Court determined that section 61 was rationally related to the competing, but legitimate, state interests of providing "reasonable support to injured workers" while still "protecting employers from excessive judgments and providing more limited and certain levels of monetary exposure." Id. ¶¶ 16, 21, 404 P.3d at 868, 870. Moreover, the six-week limitation was considered rational because it aligned with the higher end of hernia recovery times and the return to work scale. Id. ¶ 19, 404 P.3d at 869. Limitations on workers' compensation benefits are not unconstitutional simply because they inadequately compensate the disability caused by the injury. Id. ¶ 20, 404 P.3d at 870.

¶10 Similar to section 61, 85A O.S.Supp. 2013 § 7 attempts to balance the legitimate purpose of providing reasonable support to injured workers against the state's interest in protecting employers from the excessive judgments. Southon argues that the $ 100,000 cap is an "artificial limit on damages," but we agree with the Employer that under the majority of circumstances it would reasonably compensate most injured workers while also protecting employers from unlimited monetary exposure. As such, it both aims to serve legitimate government interests and is reasonably tailored to advance those purposes. Accordingly, 85A O.S.Supp. 2013 § 7 does not deny Southon due process in violation of article II, section 7 of the Oklahoma Constitution or Amendment XIV of the U.S. Constitution.

Title 85A O.S.Supp. 2013 § 7 Is Not a Special Law in Violation of Article V, Section 46 of the Oklahoma Constitution

¶11 The Oklahoma Constitution prohibits local or special laws that regulate "the practice or jurisdiction of ... judicial proceedings or inquiry before the courts ... or other tribunals." Okla. Const. art. 5, § 46. Local or special laws

Rest on a false or deficient classification.... [by] not embrac[ing] all the class that they should naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect.

Barrett v. Bd. of Comm'rs of Tulsa Cnty., 1939 OK 68, ¶ 17, 185 Okla. 111, 90 P.2d 442, 446. When evaluating a law for deficient classification under section 46, there is a presumption of constitutionality. Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶ 12, 613 P.2d 1041, 1044. A classification will be upheld as constitutional as long as the classification itself is reasonable and there is a "reasonable opportunity for uniform or equal incidence on the class created." Id. The law should "be general in its application and embrace all of the given class." City of Enid v. Pub. Emps. Relations Bd., 2006 OK 16, ¶ 13, 133 P.3d 281, 287. Southon argues 85A O.S.Supp. 2013 § 7 is a special law because it designates remedies for victims of workers'-compensation-based wrongful termination that are different than the remedies available to victims of status-based wrongful termination.

¶12 The classification of wrongful termination victims "is determined by the public policy that is offended by the discharge of an employee who is either protected by the public policy or has acted in a way that is consistent with the public policy." MacDonald v. Corporate Integris Health, 2014 OK 10, ¶ 10, 321 P.3d 980, 984. We recently held in MacDonald, that the Oklahoma Anti-Discrimination Act was not a special law even though it created a new class of status-based wrongful termination victims. Id. ¶ 4, 321 P.3d at 982. In MacDonald, as in the present case, "plaintiff argue[d] that all victims of wrongful termination are a similarly situated class of tort victims in the same way all victims of negligence" are a similarly situated class. Id. ¶ 5, 321 P.3d at 983. This Court rejected that notion and held that the remedies for status-based and conduct-based wrongful termination need not be commensurate because the remedies are intended to protect different policies. Id. ¶¶ 7, 10, 321 P.3d at 983-84. Accordingly, a class may receive individualized treatment where there is a separate policy reason for doing so.

¶13 To decide whether 85A O.S.Supp. 2013 § 7 is under-inclusive, we must determine whether the statute targets less than an entire class of similarly situated persons for different treatment. We conclude it does not. Section 7 treats all employees who are discharged for pursuing workers' compensation benefits in an identical manner. The Legislature created section 7 to ensure employees are free to pursue workers' compensation benefits without fear of retaliation. This policy interest is distinct from the interest of equality that inspired the Anti-Discrimination Act's classification of status-based claimants, and the Legislature was within its right to determine that it is better protected by an administrative remedy than by tort liability. We therefore conclude that 85A O.S.Supp. 2013 § 7 is not an unconstitutional special law.

Plaintiff Is Precluded from Bringing a Burk Tort Cause of Action Because the Statutory Remedies of 85A O.S.Supp. 2013 § 7 Adequately Protect Oklahoma Public Policy

¶14 Finally, Southon argues that he should be able to litigate his claim in the district court as a Burk tort because the remedies of 85A O.S.Supp. 2013 § 7 are inadequate. In Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24, this Court created an exception to the employment-at-will doctrine by "restricting the right of employers to discharge at-will employees when that termination is in contravention of a clear mandate of public policy, as articulated by constitutional, statutory or decisional law." McCrady v. Okla. Dep't of Pub. Safety, 2005 OK 67, ¶ 7, 122 P.3d 473, 475. The exception created in Burk "subjects the employer to tort liability where the employee is 'discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy.' " Id. Burk torts were deemed an available avenue for relief because, at the time, there was no other remedy to protect prevailing public policy. MacDonald, 2014 OK 10, ¶ 6, 321 P.3d at 983. "[I]t is axiomatic that the Legislature can declare and change public policy in the area of at[-]will employment and is empowered to provide the measures it deems necessary to protect that public policy." Id. As such, if the Legislature creates a statutory remedy that sufficiently protects employees from a discharge in contravention of public policy, they are precluded from resorting to a Burk cause of action. Shephard v. CompSource Okla., 2009 OK 25, ¶ 12, 209 P.3d 288, 293.

¶15 In 2013, the Legislature recodified the statutory cause of action for retaliatory discharge and specified new remedies which may be pursued through the Oklahoma Workers' Compensation Commission. 85A O.S.Supp 2013 § 7. Southon argues that the remedies set out in section 7 are inadequate because previous versions of the Retaliatory Discharge Act vested jurisdiction in the district courts and provided for actual damages, loss of future wages, emotional distress, punitive damages, and reinstatement. But as we previously explained, remedies available in prior versions of the statute do not render insufficient remedies the Legislature has now chosen and narrowly tailored for a statutory claim. Accordingly, we hold that newly imposed limitations on jurisdiction and damages do not automatically render section 7 inadequate.

¶16 Administrative agencies may serve as an appropriate and sufficient forum for wrongful termination actions. In Glasco v. State ex rel. Okla. Dep't of Corr., a state employee suffered a work-related injury, received temporary total disability benefits, and was placed on leave without pay. 2008 OK 65, ¶ 72, 188 P.3d at 180. After being on leave without pay for more than a year, the Department discharged the employee pursuant to the Oklahoma Personnel Act. Id. ¶ 4, 188 P.3d at 181 ; See 74 O.S. § 840-2.21. The employee initiated a tort claim against the employer in the district court, alleging retaliatory discharge under the Workers' Compensation Act. Id. ¶ 5, 188 P.3d at 181 ; See 85 O.S. 2001 §§ 5 - 7. The trial court found that the employee's discharge was governed by the Oklahoma Personnel Act which restricted jurisdiction to the Merit Protection Commission and sustained the defendants' Motion for Summary Judgment. Id. ¶¶ 6-7, 188 P.3d at 181. On appeal, this Court affirmed. Id. ¶ 36, 188 P.3d at 188. This Court held that the Oklahoma Personnel Act did not limit access to the courts in violation of article II, section 6 of the Oklahoma Constitution by simply restricting jurisdiction to the Merit Protection Commission. Id.; see also Shephard, 2009 OK 25, ¶ 7, 209 P.3d at 292 (deciding that the Merit Protection Commission provides an "adequate remedy to protect state employee whistleblowers from wrongful termination" and "to protect the statutory public policy."); McCrady, 2005 OK 67, ¶ 12, 122 P.3d at 476 (deciding that the Oklahoma Merit System of Personnel Administration provides an "adequate remedy sufficient to protect [employees] and the identified public policy goals of Oklahoma.").

¶17 The case before us falls squarely within the purview of Glasco. Like the statutory claim in Glasco, 85A O.S.Supp. 2013 § 7 vests limited jurisdiction in an administrative agency to make a factual determination as to whether an employee has been wrongly discharged. Specifically, section 7 vests jurisdiction in the Workers' Compensation Commission to determine whether an employer "discriminate[d] or retaliate[d] against an employee" who filed a claim under the Oklahoma Administrative Workers' Compensation Act, retained a lawyer for representation regarding a claim under the Act, instituted any proceeding under the Act, or testified or was about to testify in any proceeding under the Act. 85A O.S.Supp. 2013 § 7. We specifically held in Robinson v. Fairview Fellowship, that the Workers' Compensation Commission, "as a Commission 'established by statute,' may 'exercise adjudicative authority or render decisions in individual proceedings.' " 2016 OK 42, ¶ 7, 371 P.3d 477, 481 (citing Okla. Const. art. 7, § 1 ). The Legislature explicitly gave the Workers' Compensation Commission sole jurisdiction to oversee wrongful termination claims that arise from an underlying Workers' Compensation Claim, and like the Merit Protection Commission, the Workers' Compensation Commission is fit to adequately protect Oklahoma public policy in this area.

¶18 Moreover, the Legislature designated the set of remedies that the Workers' Compensation Commission is authorized to award a prevailing employee. "The amount of that recovery is in the province of the legislature under the specific directive of the constitution, and if it is too small the people have the power, either through their elected officials or by their right of initiative petition, to increase it." See, e.g, Hughes Drilling Co. v. Crawford, 1985 OK 16, ¶ 21, 697 P.2d 525, 530 ; Graham, 2017 OK 72, ¶ 21, 404 P.3d at 870. With the enactment of section 7, the legislature has determined that Oklahoma's public policy is adequately protected by a statutory cause of action brought in the Commission and subject to the relief set forth therein. Our law is well settled that "decisions concerning public policy in creating and abolishing causes of action are routinely within the judgment of the Legislature." Torres, 2016 OK 20, ¶ 35, 373 P.3d at 1075. We conclude that 85A O.S.Supp. 2013 § 7 provides an adequate statutory remedy sufficient to protect Oklahoma public policy, and thus, no Burk tort is available in the district court.

Conclusion

¶19 Southon failed to meet the burden required to establish section 7 is unconstitutional. We therefore hold that 85A O.S.Supp. 2013 § 7 does not violate either article II, sections 7 and 9, or article V, section 46 of the Oklahoma Constitution. Moreover, the remedies provided in section 7 are adequate and preclude Southon from bringing a Burk tort in the district court. We affirm the judgment of the district court dismissing the action against the defendants for lack of subject matter jurisdiction.

¶20 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Combs, JJ., concur.

¶21 Reif, S.J., dissents.

      Section 7 provides in its entirety:
      A. An employer may not discriminate or retaliate against an employee when the employee has in good faith:
      1. Filed a claim under this act;
      2. Retained a lawyer for representation regarding a claim under this act;
      3. Instituted or caused to be instituted any proceeding under the provisions of this act; or
      4. Testified or is about to testify in any proceeding under the provisions of this act.
      B. The Commission shall have exclusive jurisdiction to hear and decide claims based on subsection A of this section.
      C. If the Commission determines that the defendant violated subsection A of this section, the Commission may award the employee back pay up to a maximum of One Hundred Thousand Dollars ($ 100,000.00). Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall reduce the back pay otherwise allowable.
      D. The prevailing party shall be entitled to recover costs and a reasonable attorney fee.
      E. No employer may discharge an employee during a period of temporary total disability for the sole reason of being absent from work or for the purpose of avoiding payment of temporary total disability benefits to the injured employee.
      F. Notwithstanding any other provision of this section, an employer shall not be required to rehire or retain an employee who, after temporary total disability has been exhausted, is determined by a physician to be physically unable to perform his or her assigned duties or whose position is no longer available.
      G. This section shall not be construed as establishing an exception to the employment at will doctrine
      H. The remedies provided for in this section shall be exclusive with respect to any claim arising out of the conduct described in subsection A of this section.

      The only amendment to section 19 since the creation of an action for retaliatory discharge, Okla. Const. art. II, § 19 (1990), did not substantively change the section. The 1990 amendment increased the amount in controversy to be eligible for a jury trial, adjusted the amount of jurors for civil and criminal cases, and clarified the number of jurors needed to reach a verdict. Accordingly, we reject Southon's argument that the 1990 amendment vested new causes of action with a right to jury trial.

      The Oklahoma Anti-Discrimination Act, 25 O.S. 2001 §§ 1101 -1901, created a class of status-based discrimination victims who alleged wrongful termination on the basis of their race, color, national origin, sex, religion, creed, age, disability, or genetic information. Shirazi v. Childtime Learning Ctr., 2009 OK 13, ¶ 8, 204 P.3d 75, 78.

      "The doctrine of employment-at-will is firmly embedded in the common law of Oklahoma." McCrady v. Okla. Dep't of Pub. Safety, 2005 OK 67, ¶ 6, 122 P.3d 473, 474. Under the employment-at-will doctrine, "an employee with an employment contract of indefinite duration is free to leave his or her employment for any reason or no reason without incurring liability to the employer, and the employer has the corresponding freedom to terminate the at-will employee for any reason or no reason without incurring liability to the employee." Id. ¶ 6, 122 P.3d at 475.


source: Caselaw Access Project

license: Public Domain

text:
    Jeremy Dwayne LAVORCHEK, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2018-263
    Court of Criminal Appeals of Oklahoma.
    FILED June 13, 2019
   ATTORNEYS AT TRIAL TROY R. COWIN, 111 N. PETERS AVE., STE. 500, NORMAN, OK 73069, COUNSEL FOR DEFENDANT

COREY MINER, ASST. DISTRICT ATTORNEY, DISTRICT ATTORNEY'S OFFICE, DISTRICT 21, 201 W. GRANT ST., ROOM 15, PAULS VALLEY, OK 73075, COUNSEL FOR THE STATE

ATTORNEYS ON APPEAL NANCY WALKER-JOHNSON, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

MIKE HUNTER, ATTORNEY GENERAL OF OKLA., KEELEY L. MILLER, ASST. ATTORNEY GENERAL, 313 NE 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE:

¶ 1 Appellant, Jeremy Dwayne Lavorchek, was convicted by a jury in Garvin County District Court, Case No. CF-2016-114, of the following crimes, all After Conviction of a Felony:

Count 1 First Degree Robbery
21 O.S.2011, § 797(2)
Count 2 Use of a Firearm in the Commission of a Felony
21 O.S.Supp.2012, § 1287
Count 3 Conspiracy to Commit a Felony
21 O.S.2011, § 421
Counts 4-6 Kidnapping
21 O.S.Supp.2012, § 741
Counts 7-9 Assault with a Dangerous Weapon
21 O.S.2011, § 645

¶ 2 The jury recommended sentences of life imprisonment on all nine counts. On March 5, 2018, the Honorable Leah Edwards, District Judge, sentenced Appellant in accordance with that recommendation, and ordered Counts 2 through 9 to be served concurrently with one another, but consecutively to Count 1. Appellant must serve 85% of the sentence on Count 1 before parole eligibility. 21 O.S.Supp.2015, § 13.1(9).

¶ 3 Appellant raises eight propositions of error in support of his appeal:

PROPOSITION I. APPELLANT HAS SUFFERED DOUBLE PUNISHMENT BY HIS CONVICTIONS FOR ROBBERY IN THE FIRST DEGREE AND THREE CONVICTIONS FOR ASSAULT WITH A DANGEROUS WEAPON IN VIOLATION OF DUE PROCESS AND DOUBLE JEOPARDY PROTECTIONS UNDER THE UNITED STATES CONSTITUTION AND OKLAHOMA CONSTITUTION .

PROPOSITION II. APPELLANT HAS SUFFERED DOUBLE PUNISHMENT BY HIS CONVICTIONS FOR ROBBERY IN THE FIRST DEGREE AND THREE CONVICTIONS FOR KIDNAPPING IN VIOLATION OF DUE PROCESS AND DOUBLE JEOPARDY PROTECTIONS UNDER THE UNITED STATES CONSTITUTION AND OKLAHOMA CONSTITUTION .

PROPOSITION III. APPELLANT HAS SUFFERED DOUBLE PUNISHMENT BY HIS CONVICTIONS FOR ROBBERY IN THE FIRST DEGREE AND USE OF A FIREARM DURING COMMISSION OF A FELONY IN VIOLATION OF DUE PROCESS AND DOUBLE JEOPARDY PROTECTIONS UNDER THE UNITED STATES CONSTITUTION AND OKLAHOMA CONSTITUTION .

PROPOSITION IV. APPELLANT WAS DENIED HIS RIGHT TO SELF-REPRESENTATION AS GUARANTEED UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTION 20 OF THE OKLAHOMA CONSTITUTION WHEN THE TRIAL COURT DENIED HIS CLEAR AND UNEQUIVOCAL REQUEST TO PROCEED PRO SE .

PROPOSITION V. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL TO WHICH HE WAS ENTITLED UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION WHEN THE TRIAL COURT FAILED TO GRANT A CONTINUANCE .

PROPOSITION VI. APPELLANT WAS DENIED A FAIR SENTENCING HEARING WHEN THE TRIAL COURT IMPROPERLY CONSIDERED AGGRAVATING EVIDENCE AT FORMAL SENTENCING .

PROPOSITION VII. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT TO SERVE HIS SENTENCES CONSECUTIVELY, THEREFORE RESULTING IN A CONSTITUTIONALLY EXCESSIVE SENTENCE .

PROPOSITION VIII. APPELLANT'S CONVICTIONS SHOULD BE REVERSED AS THE CUMULATIVE EFFECT OF ERRORS DEPRIVED HIM OF A FAIR TRIAL .

¶ 4 After thorough consideration of these issues, the briefs of the parties, and the record on appeal, we affirm. Appellant's convictions stem from an armed robbery at Legacy Drug, a pharmacy in Pauls Valley, on the morning of March 5, 2016. Two men wearing rubber masks entered the pharmacy, brandished guns, and threatened to harm the three employees if they did not cooperate. During the ordeal, the victims were physically assaulted, threatened with imminent death, and ordered to perform certain tasks. The manager was instructed to lock the store's entrance. All three victims were eventually ordered to lie on the floor, and their hands and feet were bound with duct tape and electrical cords. The two gunmen collected money and controlled drugs from the pharmacy, then left through the back door. Police, having just arrived on the scene, chased the gunmen through a local neighborhood. Appellant was seen discarding items later identified as either having been used in the robbery or taken during the crime. At trial, Appellant took the witness stand and admitted his involvement in the robbery plan (although he claimed he was not one of the gunmen who entered the pharmacy). On appeal, he does not challenge the sufficiency of the evidence to link him to the crimes.

¶ 5 In Propositions I, II, and III, which we analyze together, Appellant claims that a number of his convictions constitute double punishment, violating 21 O.S.2011, § 11(A) ("in no case can a criminal act or omission be punished under more than one section of law"). He claims that making threats to kill the pharmacy employees (three counts of Assault with a Dangerous Weapon) and binding them with tape and cord (three counts of Kidnapping) were merely means to the ultimate objective of taking drugs and money from the pharmacy (one count of First Degree Robbery). He also claims that because he used a firearm to instill fear in his victims during the robbery, he cannot be convicted separately for Using a Firearm in the Commission of a Felony. At trial, Appellant raised a double-punishment claim only as to the robbery and assault counts (here, Proposition I). Thus, the claims made in Propositions II and III are reviewed only for plain error. Appellant must show a plain or obvious deviation from a legal rule which affected his substantial rights. Even then, this Court will not grant relief unless the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings, or otherwise represents a miscarriage of justice. Barnard v. State , 2012 OK CR 15, ¶¶ 25, 31, 290 P.3d 759, 767, 769.

¶ 6 Double-punishment analysis focuses on the relationship between the crimes. If the offenses truly arise out of one act, 21 O.S.2011, § 11 prohibits prosecution for more than one crime, absent express legislative intent. Barnard , 2012 OK CR 15, ¶ 27, 290 P.3d at 767. While Appellant's ultimate objective may have been to rob the pharmacy, that does not insulate him from liability for other, factually distinct crimes committed along the way. See Davis v. State , 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126-27. Moreover, when a criminal course of conduct inflicts harm on more than one person, punishments for each victim do not constitute double punishment. Clay v. State , 1979 OK CR 26, ¶ 6, 593 P.2d 509, 510, disapproved of on other grounds in Davis , 1999 OK CR 48, 993 P.2d 124.

¶ 7 Appellant and his accomplice placed three people in mortal fear for close to an hour. They did not merely point guns at the victims and demand money and drugs; they repeatedly made verbal threats, pushed the victims around, and directed each victim to do certain acts. All three victims were eventually ordered to lie face-down on the floor, where they were bound with tape and electrical cord. Only after the employees were restrained did the gunmen actually start taking drugs and cash. Considering the length of time the gunmen were in the pharmacy, and the many things they did to terrorize and restrain the victims during that time, separate punishments for Robbery, Assault with a Dangerous Weapon, and Kidnapping were not improper. Davis v. State , 2018 OK CR 7, ¶ 5, 419 P.3d 271, 276 ; McElmurry v. State , 2002 OK CR 40, ¶¶ 77-82, 60 P.3d 4, 23-24 ; Williams v. State , 1957 OK CR 114, ¶ 11, 321 P.2d 990, 995.

¶ 8 As for Appellant's argument that he cannot be separately punished for Robbery and Use of a Firearm in the Commission of a Felony, we make three observations. First, the variant of robbery alleged by the State, 21 O.S.2011, § 797(2), does not require use of a firearm as an element of the crime. Second, while the State did allege that Appellant used "a firearm" to effectuate the robbery (Count 1), several firearms were in fact wielded throughout the event, and the State specifically named two of them in Count 2. Third, our Legislature has made it clear that punishment for using a firearm in the commission of a felony shall be "in addition to the penalty provided by statute for the felony committed or attempted." 21 O.S.Supp.2012, § 1287. See Barnard , 2012 OK CR 15, ¶ 27, 290 P.3d at 767 (legislative intent is key to double-punishment analysis). Appellant cites no clear, controlling authority which the trial court should have been aware of, despite defense counsel's failure to raise an objection. We therefore conclude there is no "plain or obvious" error in punishing Appellant for both crimes under these facts. Irwin v. State , 2018 OK CR 21, ¶ 4, 424 P.3d 675, 676. Propositions I, II, and III are denied.

¶ 9 As to Proposition IV, while a defendant has a constitutional right to represent himself, see generally Faretta v. California , 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975), he may not abuse the privilege by claiming it once trial is underway. Naum v. State , 1981 OK CR 76, ¶¶ 11-12, 630 P.2d 785, 788 ; Day v. State , 1980 OK CR 94, ¶ 8, 620 P.2d 1318, 1320. Here, the trial court did not abuse its discretion in denying Appellant's request to give closing argument, particularly since he had elected not to attend the trial until after the State had rested its case. Proposition IV is denied.

¶ 10 In Proposition V, Appellant claims that by denying defense counsel's request for a continuance, the trial court prevented counsel from delivering reasonably effective assistance as guaranteed by the Sixth Amendment to the United States Constitution. Appellant must show that counsel's performance was constitutionally deficient, and that counsel's deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ;

Bland v. State , 2000 OK CR 11, ¶ 112, 4 P.3d 702, 730. Appellant claims that if the trial court had delayed the trial, defense counsel might have explored additional defenses and had more time to develop "rapport" with his client. But Appellant fails to specify what additional defenses might have been available, or that a better relationship between counsel and client would have made any difference in the outcome. Because Appellant has failed to demonstrate a reasonable probability that he was prejudiced by the trial court's denial of a continuance, we cannot find counsel was rendered ineffective by the action. Phillips v. State , 1999 OK CR 38, ¶ 103, 989 P.2d 1017, 1043. Proposition V is denied.

¶ 11 Propositions VI and VII deal with issues related to sentencing. The prosecutor filed a sentencing memorandum, strenuously arguing that Appellant should serve all nine life sentences consecutively. The court ordered Counts 2 through 9 to be served concurrently, but consecutively to Count 1. The information presented to the court in the prosecutor's sentencing memorandum (some of which was duplicated in the Presentence Report) was entirely proper. The court was authorized to consider evidence presented at trial, the impact of the crimes on the victims, and Appellant's entire criminal history in deciding how to implement the sentences imposed by the jury. 21 O.S.2011, § 142A et seq . ; 22 O.S.Supp.2017, § 982.

¶ 12 Appellant's reliance on Malone v. State , 2002 OK CR 34, 58 P.3d 208, is inapposite. Malone addressed what information is relevant to a fact-finder's verdict. "[W]hen the defendant has demanded the jury to assess punishment or the trial judge has allowed the jury to assess punishment, there simply is no provision allowing for mitigating evidence to be presented in the sentencing stage of the trial ." Id . at ¶ 7, 58 P.3d at 210 (emphasis added). At issue here is what information is admissible at sentencing hearings , held after the jury has rendered its verdict. Appellant neither disputes the trial court's authority to order consecutive or concurrent service of sentences as it sees fit, nor does he dispute that the prosecutor's memorandum and argument went only to that issue.

¶ 13 The trial court's focused decision to reject the prosecutor's request, and group most of Appellant's sentences for concurrent service, was to Appellant's benefit and hardly an abuse of discretion. Kamees v. State , 1991 OK CR 91, ¶ 21, 815 P.2d 1204, 1208-09, overruled on other grounds in Davis , 2018 OK CR 7, ¶ 26, 419 P.3d at 281. Propositions VI and VII are denied.

¶ 14 Finally, since we have identified no error in the preceding propositions, there can be no error by accumulation. Clayton v. State , 1995 OK CR 3, ¶ 27, 892 P.2d 646, 657. Proposition VIII is denied.

DECISION

¶ 15 The Judgment and Sentence of the District Court of Garvin County is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LEWIS, P.J.: CONCUR

LUMPKIN, J.: CONCUR

HUDSON, J.: CONCUR

ROWLAND, J.: CONCUR

      While Appellant occasionally uses the term "double jeopardy" in these three claims, he never elaborates on how the crimes violate the constitutional protection from double jeopardy. See generally Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) ; Logsdon v. State , 2010 OK CR 7, ¶ 19, 231 P.3d 1156, 1165. This Court will not undertake the analysis for him. Cuesta-Rodriguez v. State , 2011 OK CR 4, ¶ 12, 247 P.3d 1192, 1197 (on rehearing); Rule 3.5(A)(5) and (C)(1), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019). In focusing instead on the statutory "double punishment" protection of 21 O.S. § 11, Appellant observes that it has a "wider scope" than its constitutional cousin because it considers the "relationship" between the crimes.

      Again, we note that Appellant refused to attend most of his own trial, and testified before the jury (against counsel's advice), admitting his involvement in the crimes. From our review of the record, counsel performed admirably and zealously for his client. The record also shows that Appellant had difficulty getting along with several prior attorneys appointed to his case.


author: DAVID B. LEWIS, Presiding Judge

text:
    Alex MOORE, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2017-710
    Court of Criminal Appeals of Oklahoma.
    FILED JUNE 13, 2019
    ORDER GRANTING APPELLEE'S MOTION TO PUBLISH, WITHDRAWING PRIOR OPINION AND SUBSTITUTING ATTACHED OPINION
    ¶ 1 On March 28, 2019, this Court affirmed Appellant's conviction and sentence on direct appeal in an unpublished opinion. On April 12, 2019, the State of Oklahoma filed with this Court a Motion for Publication and Brief in Support. In this motion, the State urges that publication of our opinion in this case is warranted on various grounds. Upon review of that request and the opinion, and for good cause shown, we find that the State of Oklahoma's Motion for Publication and Brief in Support should be and hereby is GRANTED .
    ¶ 2 IT IS THEREFORE THE ORDER OF THIS COURT that the prior opinion in the above styled case is WITHDRAWN. The Clerk of this Court is hereby directed to designate the attached opinion as "FOR PUBLICATION."
    ¶ 3 The Clerk of this Court is directed to transmit a copy of this Order and the attached Opinion to the Court Clerk of Beckham County; the District Court of Beckham County, the Honorable Doug Haught, District Judge; and counsel of record.
    ¶ 4 IT IS SO ORDERED.
    ¶ 5 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 13th day of June, 2019.
    /s/ David B. Lewis
   DAVID B. LEWIS, Presiding Judge

/s/ Dana Kuehn

DANA KUEHN, Vice-Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN, Judge

/s/ Robert L. Hudson

ROBERT L. HUDSON, Judge

/s/ Scott Rowland

SCOTT ROWLAND, Judge

OPINION

HUDSON, JUDGE:

¶ 1 Appellant, Alex Moore, was tried and convicted at a jury trial in Beckham County District Court, Case No. CF-2015-9, of Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7(A). The jury recommended a sentence of life imprisonment without the possibility of parole. The Honorable Doug Haught, District Judge, presided at trial, and sentenced Moore in accordance with the jury's verdict. Moore now appeals.

FACTS

¶ 2 The State's evidence showed that Appellant attacked and killed his cellmate, Todd Bush, on the evening of March 6, 2014. Appellant and Bush were inmates from California incarcerated at the privately-run Northfork Correctional Center in Sayre. Appellant and Bush were under lockdown in Cell 261 of the Fox South Unit at approximately 7:45 p.m. when Christopher Hill, a corrections counselor, stopped by to verify their respective account balances. Hill did not unlock the cell door during this process although he had a key. Instead, he knocked on the cell door and spoke with each inmate through the window. Bush was laying on the bottom bunk bed when Hill read Bush's account balance. Bush did not get up but responded with a simple "okay." Appellant was laying on the top bunk, reading a book when Hill asked whether he wanted his balance. Appellant hopped down off his bunk, walked to the door and Hill read his account balance. Appellant said "okay" and returned to the top bunk where he resumed reading. Appellant and Bush were the only two inmates inside the cell.

¶ 3 Before walking away from Cell 261, Hill tugged at the handle of the cell door to confirm it was locked. Then Hill moved down the line to the other cells, repeating the process of balance checks with the other inmates. At approximately 8:00 p.m., Hill finished his shift and had just walked outside the Fox South Unit when an emergency medical call for Appellant's and Bush's cell was broadcast. Robert Hubbard, a correctional officer, was conducting a lockdown of the inmates on the bottom row of the Fox South Unit when someone yelled about an inmate down on the top tier.

¶ 4 Hubbard raced upstairs to Cell 261. There, he observed through the window of the locked cell door Appellant holding onto Bush. Both inmates were on the floor with Appellant's legs folded underneath him; Bush was on his knees. Appellant had his arms wrapped around Bush and was doing something to Bush's chest. According to Hubbard, Appellant was "[k]ind of like shaking" Bush's chest. No other inmates were inside the cell. Hubbard called over the radio for medical assistance then unlocked the cell with his key and went inside. Hubbard quickly determined that Bush had no pulse and that his condition was not good. Hubbard conveyed this information over the radio, laid Bush's body flat on the floor and began CPR while waiting for the medical team to arrive.

¶ 5 Hill arrived to find Hubbard inside Cell 261 performing CPR on Bush. Hill ushered Appellant away from the cell and told him to sit on a bench in the common area. Hill then relieved Hubbard and commenced CPR on Bush. The prison's medical team soon arrived. Bush was loaded onto a gurney and transported to a local hospital by ambulance. Bush was in full cardiac arrest and never responded to the continuous efforts of the prison medical staff, paramedics and emergency room personnel to save his life. Bush was pronounced dead at the hospital.

¶ 6 When asked by Northfork officials what happened to Bush, Appellant said he didn't know. Appellant explained that Bush "liked to drink" and had fallen off his bunk bed. Appellant offered too that he and Bush were from the same neighborhood. Bruising and abrasions were observed on Bush's face, neck and upper chest by investigators and medical personnel that were inconsistent with falling roughly two feet off the lower bunk bed. A small laceration was observed at the base of Bush's neck and an abrasion was apparent on Bush's left rib cage where the skin had rubbed off. Petechial hemorrhaging was observed in both of Bush's eyelids. These injuries suggested to investigators evidence of attack, struggle and asphyxia. By contrast, two small scratches were observed on Appellant's neck.

¶ 7 Inside Cell 261, investigators found utter disarray. Spilt "hooch" or contraband prison alcohol (commonly made from fermented food like bread, fruit and sugar) was spilt on the floor along with one of Bush's overturned tennis shoes. In the corner of the cell near a mounted table and chairs was an overturned cup and wet towel. Passive blood drips were found in this same area suggesting the source was directly above the blood drops. Blood swipes were observed on the cell wall that were consistent with someone trying to get up off the ground.

¶ 8 Dr. Ruth Kohlmeier, the state medical examiner, autopsied Bush and determined that the manner of death was homicide with the cause of death being asphyxiation due to strangulation. Her external examination revealed bruising on Bush's hands, forearm and chest area. Bush also had an abrasion on his left chest. Bush had bruises on his nose, above his left eyebrow and on his right eyebrow; he also had a black left eye. These injuries were fresh and were inflicted during the same time frame. Dr. Kohlmeier opined that these injuries were consistent with Bush receiving multiple blows to the head and were not consistent with Bush having fallen down.

¶ 9 Dr. Kohlmeier's internal examination revealed that Bush's brain had swollen but there was no blood on the brain. The absence of blood on the brain meant Bush's head injuries were not lethal. Bush had petechial hemorrhages in both eyes, along with injuries to his neck, which were consistent with strangulation. Indeed, Bush's hyoid bone inside his neck was fractured which, according to Dr. Kohlmeier, would take "tremendous force" to break in a younger person like Bush. Toxicology of Bush's blood showed he was intoxicated: his blood alcohol level was positive for alcohol at 0.18 percent.

¶ 10 The defense presented no evidence at trial and rested at the conclusion of the State's case. However, the defense theory at trial-advanced both through cross-examination and closing argument-was that the victim's death may have been caused by an accidental fall, consistent with Appellant's statement to prison officials.

ANALYSIS

¶ 11 Proposition I. The trial court admitted evidence under 12 O.S.2011, § 2404(B) showing that Appellant attacked an inmate and a detention officer in separate incidents occurring at the county jail while Appellant awaited trial in the present case. The first incident occurred on January 9, 2016 when, according to detention officer Chris Yeager, Appellant "balled up" his fists and struck his cellmate, Kevin Ezzell, on the back of the head inside their cell. This incident occurred after Yeager opened the cell door and responded to Ezzell's request for bedding. Appellant and Ezzell were the only two inmates inside the cell. Yeager testified that Appellant "was getting his hands up close to [Ezzell's] neck and shoulder region" while standing behind Ezzell. Yeager intervened and separated the two as Ezzell attempted to run out the open cell door. Yeager testified that Appellant's hands weren't coming off of Ezzell's neck and shoulder area, prompting him to pull Appellant off Ezzell. Appellant later said to the detention officer "tell that dude that I did him a favor because I could have waited 'til y'all did meds and killed him."

¶ 12 The second incident occurred on February 18, 2016, as detention officer Jason Crook was passing out medications in Appellant's pod. Appellant attempted to walk out of the pod to confront a jail captain about that morning's oatmeal rations when he was stopped by another detention officer. Appellant then knocked off a stack of trays from the medication cart, pushed the cart out of the way and walked towards a hallway door. When Crook stepped around the medicine cart, Appellant came at the officer and put his hands on Crook's "head and shoulder area." Crook and Appellant then fell to the ground. Crook was able to subdue Appellant despite Appellant having both hands on Crook's face with his thumbs going forward into the officer's eyes. When Crook knocked Appellant's hands away, Appellant grabbed the back of the officer's shirt.

¶ 13 The trial court admitted this evidence under Section 2404(B) as proof showing absence of mistake or accident. The trial court included in the written charge the uniform Oklahoma limiting instruction for other crimes or bad acts evidence. On appeal, Appellant argues the trial court abused its discretion by admitting this evidence. Appellant urges this error denied him due process and was not harmless. Appellant requests either a new trial or modification of his sentence.

¶ 14 At trial, Appellant timely objected to this evidence on the grounds raised here thus preserving this claim for our review. We review the admission of other crimes or bad acts evidence for abuse of discretion. Kirkwood v. State , 2018 OK CR 9, ¶ 3, 421 P.3d 314, 316. An abuse of discretion is a conclusion or judgment that is clearly against the logic and effect of the facts presented. Id . We have held that any criminal conviction obtained through a trial "must be based upon evidence establishing that the defendant committed the charged crime(s), rather than evidence of other offenses."

Miller v. State , 2013 OK CR 11, ¶ 89, 313 P.3d 934, 966.

¶ 15 Section 2404(B) governs the admission of other crimes or bad acts evidence. This provision "specifically prohibits evidence intended to prove a character trait of a person in order to show the person acted in conformity with that trait." Cuesta-Rodriguez v. State , 2010 OK CR 23, ¶ 26, 241 P.3d 214, 226. Other crimes or bad acts evidence is admissible, however, for limited purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. We recently discussed the requirements for the admission of this type of evidence:

Evidence of other crimes must be (a) probative of a disputed issue of the charged crime; (b) there must be a visible connection between the crimes; (c) the evidence must be necessary to support the State's burden of proof; (d) proof of the evidence must be clear and convincing; (e) the probative value of the evidence must outweigh its prejudicial effect; and (f) the trial court must instruct jurors on the limited use of the testimony at the time it is given and during final instructions.

Kirkwood , 2018 OK CR 9, ¶ 5, 421 P.3d at 316 (citation omitted).

¶ 16 The principal issue at trial was whether Appellant killed Bush with malice aforethought or whether the victim died from an accidental fall. When asked what happened, Appellant told prison officials that Bush "liked to drink" and had fallen off his bunk bed. Defense counsel's cross-examination of the State's witnesses, like his closing argument, advanced the defense that Appellant's version of events was possible despite the considerable evidence showing Bush was beaten and strangled. Thus, the issue of Appellant's intent was squarely before the jury as was the defense's attempt to show reasonable doubt by defending the case with the notion that the victim's death was an accident.

¶ 17 Evidence that a defendant committed acts similar to the charged offense may be admissible at trial to prove absence of mistake or accident. Relevant evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 12 O.S.2011, § 2401. The probative nature of the other crimes evidence offered in this case depends upon the similarity of the conduct involved. As recently explained by another court in addressing this issue:

The use of a defendant's other misconduct to prove lack of accident is premised upon Wigmore's theory of improbability. 1 E. Imwinkelried, Uncharged Misconduct Evidence § 5:11 (Updated 2017) (citing 2 Wigmore, Evidence § 363 (3rd ed.) ). See also 22B Fed. Prac. & Proc. Evid. § 5255. Under the theory of improbability, which is also known as the doctrine of chances, "the credibility of the accident explanation decreases as the number of instances of similar conduct increases." Imwinkelried § 5:11. Stated another way, "the more often an accidental or unusual event occurs, the more likely it is that any subsequent reoccurrence is not the result of a mistake or accident." R. Larsen, Navigating a Federal Trial 10:53.

Swett v. State , 2018 WY 144, ¶ 25, 431 P.3d 1135, 1143.

¶ 18 We have approved of the use of other crimes or bad acts evidence to prove absence of mistake or accident in this way even where different victims are involved. See Kirkwood , 2018 OK CR 9, ¶¶ 4-9, 421 P.3d at 316-18 (evidence of a violent domestic incident that occurred between the defendant and the child victim's mother eight months after the charged offense admissible to counter defendant's claim of accident or mistake in child abuse by injury case); Cole v. State , 2007 OK CR 27, ¶¶ 12-26, 164 P.3d 1089, 1094-96 (evidence that defendant was convicted in California eighteen years earlier of aggravated child abuse of his six month old son admissible to disprove absence of mistake of accident in the child abuse murder of his nine month old daughter); Welch v. State , 2000 OK CR 8, ¶¶ 7, 13, 2 P.3d 356, 365, 367 (evidence that defendant murdered Debra Stevens in Grady County three months after Talley Cooper's death in Cleveland County was admissible to prove absence of mistake or accident with respect to Cooper's death). Such evidence is not offered to show a defendant's propensity for violence and the defendant's action in conformity therewith. Rather, it is offered for the limited purpose of proving absence of mistake or accident as authorized under the express terms of Section 2404(B).

¶ 19 In the present case, evidence of Appellant's separate jail altercations occurring after Bush's killing was relevant to prove absence of mistake or accident as to the charged offense. The January 9, 2016, incident is highly similar to the charged offense. The record shows Appellant attacked his cellmate by punching him in the back of the head and grabbing his cellmate around the throat and shoulders. This attack occurred inside the jail cell both men shared. The February 18, 2016, incident is somewhat different from the charged offense but nonetheless similar enough to be admissible. During this second incident, Appellant attacked a detention officer outside his cell, put his hands on the officer's head and shoulder area and both men ended up on the floor before Appellant was subdued.

¶ 20 The setting and nature of the attacks for these two incidents are highly similar to the circumstances surrounding the charged offense. Although Appellant's subsequent victims were not fatally injured, all three incidents reveal similar attacks in which Appellant confronted a cellmate or detention officer. The repeated commission by Appellant of similar attacks was directly probative of the credibility of his claim that Bush's death was accidental. That is particularly so where, as here, Appellant expressly stated that he could have killed Ezzell, the victim of the January 9th attack, had he waited until the jail staff was handing out medication.

¶ 21 Despite Appellant's contrary assertions, the similarities of the charged offense and Appellant's attack against Ezzell and the detention officer were substantial enough to create a visible connection between all three. The other crimes evidence introduced in this case was highly probative of a material issue in the present case and was necessary to the State's burden of proof, in particular, refuting the defense claim at trial (based on Appellant's own words) that Bush's death could have been an accident. See Welch , 2000 OK CR 8, ¶ 13, 2 P.3d at 367. "In dealing with the relevancy of evidence, we begin with the presumption that in determining whether to admit such evidence, the trial judge should lean in favor of admission." Id. , 2000 OK CR 8, ¶ 14, 2 P.3d at 367 (internal quotation omitted). "When balancing the relevancy of evidence against its prejudicial effect, the trial court should give the evidence its maximum probative force and its minimum reasonable prejudicial value." Id .

¶ 22 In the present case, the State bore the burden of proving that Appellant intentionally killed Bush. The challenged evidence tends to refute Appellant's claim that Bush's death was accidental and bolstered the State's considerable evidence showing malice aforethought. Despite its highly prejudicial nature, we find that the probative value of the other crimes evidence introduced in this case outweighed its prejudicial effect; that the evidence was necessary to the State's burden of proof; and the evidence was properly admitted. There thus was no abuse of discretion. Proposition I is denied.

¶ 23 Proposition II. Appellant complains that the trial court erred in admitting "excessively gruesome photographs which depict the medical examiner's handiwork." Specifically, Appellant challenges the admission of State's Exhibits 116, 117, 118, 129, 130 and 131. Appellant complains that these photographs, which depict various internal injuries suffered by the victim, were at best minimally relevant and that their probative value was outweighed by the danger of unfair prejudice.

¶ 24 Appellant concedes that he did not object at trial to the admission of these photographs. He has therefore waived review of this claim for all but plain error. See Tryon v. State , 2018 OK CR 20, ¶ 59, 423 P.3d 617, 636-37, cert. denied , --- U.S. ----, 139 S. Ct. 1176, 203 L. Ed. 2d 215 (2019). To show plain error, Appellant must show an actual error, which is plain or obvious, affected his substantial rights. This Court will only correct plain error if the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Lamar v. State , 2018 OK CR 8, ¶ 40, 419 P.3d 283, 294 ; 20 O.S.2011, § 3001.1.

¶ 25 Appellant fails to show actual or obvious error. We review the trial court's admission of photographic evidence for an abuse of discretion. Photographic exhibits are subject to the same relevancy and unfair prejudice analysis as any other piece of evidence. 12 O.S.2011, §§ 2401 - 2403. As we have held:

Photographs may be probative of the nature and location of wounds ; may corroborate the testimony of witnesses, including the medical examiner; and may show the nature of the crime scene. Gruesome crimes make for gruesome photographs, but the issue is whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or needless presentation of cumulative evidence.

Martinez v. State , 2016 OK CR 3, ¶ 46, 371 P.3d 1100, 1112-13, (internal citations omitted).

¶ 26 State's Exhibits 116 and 117 showed Bush's exposed skull and the bruising underneath the hematoma observed externally on the left forehead which was discussed in the medical examiner's testimony. State's Exhibit 118 showed the victim's exposed brain. The medical examiner testified this photograph showed that the victim's brain was somewhat swollen. Further, the medical examiner observed with this photograph that there was no blood on the brain, signifying the blows to the head Bush received were nonfatal. These challenged photographs depicted the victim's injuries, illustrated the testimony of the medical examiner, and demonstrated the nonfatal nature of Bush's head injuries. This was particularly important because of the defense claim that the victim's death may have been accidental from a fall off the bed.

¶ 27 State's Exhibits 129, 130 and 131 showed the victim's internal neck organ after being removed by the medical examiner. State's Exhibit 129 is an overview of the internal neck organ. State's Exhibits 130 and 131 are close-up photographs showing the broken hyoid bone and the hemorrhage associated with that injury. The medical examiner acknowledged that the neck organ looked like a "red blob" in the overview picture. She used the two close-up shots of the broken hyoid bone and the related hemorrhage, as pointed out by the forceps shown therein, to identify the location of this injury. This helped illustrate the medical examiner's conclusion that the victim died of asphyxia and that it would take a "tremendous amount of force" to break Bush's hyoid bone.

¶ 28 There is no question that some of these photographs were gruesome. But this alone does not make them inadmissible "so long as they are not so unnecessarily hideous or repulsive that jurors cannot view them impartially." Bosse v. State , 2017 OK CR 10, ¶ 48, 400 P.3d 834, 853. None of the challenged photographs can be described as unnecessarily hideous or repulsive. The challenged photographs were relevant and properly admitted. These photographs were not unfairly prejudicial when considered both individually and collectively. Nor were they cumulative. "[T]he State was not required to downplay the violence involved or its repercussions." Jones v. State , 2009 OK CR 1, ¶ 57, 201 P.3d 869, 885. There is no actual or obvious error. Proposition II is denied.

¶ 29 Proposition III. Appellant complains that the prosecutor improperly defined "reasonable doubt" during voir dire . Appellant failed to object to any of the questions and comments he now challenges on appeal. Our review is thus limited to plain error. Robinson v. State , 2011 OK CR 15, ¶ 16, 255 P.3d 425, 431. Appellant fails to show actual or obvious error.

¶ 30 In the challenged passages, the prosecutor addressed with the venire panel whether they agreed that not all doubt was reasonable. During this discussion, the prosecutor mentioned the example of an oncoming car on a two-way highway and whether it was reasonable to pull off the road because the prospective juror may have doubt that the oncoming car would cross the center line. The consensus view was (unsurprisingly) that it was unreasonable to pull off the highway for an oncoming car on the mere chance it might cross the centerline. At one point, the prosecutor asked a prospective juror whether he agreed that beyond a reasonable doubt should not be equated to "beyond a shadow of a doubt" or "beyond all doubt" to which the prospective juror responded "[y]eah".

¶ 31 "The manner and extent of examination of jurors is not 'prescribed by any definite, unyielding rule, but instead rests in the sound discretion of the trial judge.' " Tryon , 2018 OK CR 20, ¶ 13, 423 P.3d at 627 (quoting Mayes v. State , 1994 OK CR 44, ¶ 15, 887 P.2d 1288, 1298 ). Here, the prosecutor's questions were well within the limits of proper voir dire . We have held that prosecutors may not define "reasonable doubt," Robinson , 2011 OK CR 15, ¶ 16, 255 P.3d at 432, but that is not what happened in this case. The State "may distinguish that standard from commonly heard phrases, and ask jurors not to hold the State to a higher burden of proof, as the prosecutor did here." Id . The prosecutor used the example of the passing car to illustrate the well-established principle that not all doubt is reasonable. Appellant's jury was not left with an erroneous impression and the prosecutor's actions did not represent actual or obvious error. See , e.g. , Phillips v. State , 1999 OK CR 38, ¶¶ 21-23, 989 P.2d 1017, 1028 ; Stewart v. State , 1988 OK CR 108, ¶ 21, 757 P.2d 388, 396. Because Appellant fails to show actual or obvious error, there is no plain error. Proposition III is denied.

¶ 32 Proposition IV. Appellant complains there is nothing in the record to indicate he was advised, either by the trial court or by his own counsel, of his right to testify or that he wished to waive that right. Thus, Appellant complains that his constitutional right to testify in his own behalf has been violated. Appellant requests that we reverse his murder conviction and remand his case for a new trial.

¶ 33 This issue was not raised below. Our review is therefore limited to plain error. See Wackerly v. State , 2000 OK CR 15, ¶ 29, 12 P.3d 1, 12. Appellant fails to show actual or obvious error. He acknowledges that we have never imposed a formal requirement that the defendant's waiver of his right to testify be made on the record at trial. Although it is undoubtedly true that non-testifying defendants commonly make such waivers on the record, Appellant cites no authority requiring it. Indeed, the Tenth Circuit has held that:

[N]othing in this circuit, or any other ... requires defendants to waive their right to testify on the record and we decline to adopt such a rule now. To the contrary, requiring judges to question each non-testifying defendant about his decision not to testify may result in defendants feeling pressured to give up their right not to testify.

Cannon v. Trammell , 796 F.3d 1256, 1273 n.9 (10th Cir. 2015) (citing United States v. Pennycooke , 65 F.3d 9, 13 (3d Cir. 1995) ).

¶ 34 Nothing in the present record indicates that defense counsel frustrated Appellant's desire to testify. Nor does the record suggest in any way that Appellant wanted to testify. We decline Appellant's invitation to create new law and adopt a formal requirement that the trial court in every case advise defendants of their right to testify and obtain an on-the-record waiver of such right from non-testifying defendants. However, trial judges should exercise extreme caution when a defendant's counsel announces during a trial proceeding that their client does not wish to testify. The best practice unquestionably is to take the time to swear in the defendant on the record and outside the presence of the jury and ask simple questions regarding their choice not to testify in their own behalf. The time it takes to do so is a small price to pay for a clean and complete record.

¶ 35 In the present case, there is no actual or obvious error in light of controlling authority. Thus, there is no plain error. Proposition IV is denied.

¶ 36 Proposition V. Appellant complains that trial counsel was ineffective for failing to object to 1) the photographic exhibits challenged in Proposition II; and 2) the prosecutor's questions and comments during voir dire challenged in Proposition III. To prevail on an ineffective assistance of counsel claim, the appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense.

Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Harrington v. Richter , 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011) (discussing Strickland , supra ). We previously rejected Appellant's challenges both to the photographic exhibits as discussed in Proposition II and the prosecutor's voir dire as discussed in Proposition III. Trial counsel thus was not ineffective for failing to make these meritless objections. Jackson v. State , 2016 OK CR 5, ¶ 13, 371 P.3d 1120, 1123. Proposition V is denied.

¶ 37 Proposition VI. Finally, Appellant complains that relief is warranted based on cumulative error. We have held that a cumulative error argument has no merit when the Court fails to sustain any of the other errors raised by Appellant. Bivens v. State , 2018 OK CR 33, ¶ 35, 431 P.3d 985, 996. Such is the case here. Proposition VI is denied.

DECISION

¶ 38 The Judgment and Sentence of the District Court is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LEWIS, P.J.: CONCUR

KUEHN, V.P.J.: CONCUR

LUMPKIN, J.: CONCUR

ROWLAND, J.: CONCUR

      At the time of this incident, Northfork was corporately owned and operated exclusively under a contract with the California Department of Corrections to house inmates. The record shows that Northfork was later acquired by the Oklahoma Department of Corrections and is currently a state-operated prison.

      Title 12 O.S.2011, § 2404(B) provides:
      Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

      Instruction No. 22 stated:
      Evidence has been received that the defendant has allegedly committed misconduct other than that charged in the information. You may not consider this evidence as proof of the guilt or innocence of the defendant of the specific offense charged in the information. This evidence has been received solely on the issue of the defendant's alleged absence of mistake or accident. This evidence is to be considered by you only for the limited purpose for which it was received.
      See OUJI-CR (2d) 9-9 (2000 Supp.).