Revilla v. State, 121919 OKCRI, F-2018-929

Docket Nº:F-2018-929
Opinion Judge:KUEHN, VICE PRESIDING JUDGE.
Party Name:ANDREW JOSEPH REVILLA, Appellant v. THE STATE OF OKLAHOMA, Appellee.
Attorney:KENNY GOZA COUNSEL FOR DEFENDANT DAVID THOMAS SOMMER ROBBINS FIRST ASSISTANT AND ASST. DISTRICT ATTORNEYS COUNSEL FOR THE STATE CHAD JOHNSON COUNSEL FOR APPELLANT MIKE HUNTER ATTORNEY GENERAL OF OKLA. KEELEY L. MILLER ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE
Judge Panel:LEWIS, P.J., LUMPKIN, J., HUDSON, J., ROWLAND, J.: CONCURS.
Case Date:December 19, 2019
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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2019 OK CR 30

ANDREW JOSEPH REVILLA, Appellant

v.

THE STATE OF OKLAHOMA, Appellee.

No. F-2018-929

Court of Criminal Appeals of Oklahoma

December 19, 2019

AN APPEAL FROM THE DISTRICT COURT OF JACKSON COUNTY THE HONORABLE CLARK E. HUEY, ASSOCIATE DISTRICT JUDGE.

ATTORNEYS AT TRIAL

KENNY GOZA COUNSEL FOR DEFENDANT

DAVID THOMAS SOMMER ROBBINS FIRST ASSISTANT AND ASST. DISTRICT ATTORNEYS COUNSEL FOR THE STATE

ATTORNEYS ON APPEAL

CHAD JOHNSON COUNSEL FOR APPELLANT

MIKE HUNTER ATTORNEY GENERAL OF OKLA. KEELEY L. MILLER ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE.

¶1 Appellant, Andrew Joseph Revilla, was convicted by a jury in Jackson County District Court, Case No. CF-2017-62, of two counts of Lewd Molestation of a Minor, and one count of Forcible Sodomy. On August 29, 2018, the Honorable Clark E. Huey, Associate District Judge, sentenced him in accordance with the jury's recommendation to twenty years imprisonment on each count, and ordered the sentences to be served consecutively. Appellant must serve 85% of these sentences before parole consideration. 21 O.S.Supp.2015, § 13.1 (15), (18).

¶2 Appellant raises five propositions of error in support of his appeal: PROPOSITION I. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AS TRIAL COUNSEL NEGLECTED TO FILE A MOTION TO QUASH AFTER THE STATE FAILED TO PRESENT SUFFICIENT COMPETENT EVIDENCE AT THE PRELIMINARY HEARING.

PROPOSITION II. IMPROPER EVIDENCE OF OTHER CRIMES AND BAD ACTS RENDERED APPELLANT'S TRIAL FUNDAMENTALLY UNFAIR.

PROPOSITION III. AN OVERLY BROAD LIMITING INSTRUCTION ON IMPEACHMENT EVIDENCE RENDERED APPELLANT'S TRIAL FUNDAMENTALLY UNFAIR.

PROPOSITION IV. PROSECUTORIAL MISCONDUCT PREVENTED A FAIR TRIAL.

PROPOSITION V. CUMULATIVE ERRORS PREVENTED A FAIR TRIAL.

¶3 After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant and his girlfriend, Stephanie Garcia, were jointly tried and convicted of sexually abusing Appellant's minor relative. The child testified at preliminary hearing and at trial. Appellant does not challenge the sufficiency of the evidence to support his convictions, but claims various errors require relief.

¶4 In Proposition I, Appellant claims his trial counsel was deficient for failing to seek dismissal of the case after preliminary hearing, via a motion to quash for insufficient evidence. 22 O.S.2011, § 504.1. A claim that counsel did not provide reasonably effective assistance, grounded in the Sixth Amendment right to counsel, requires the defendant to show (1) professionally unreasonable performance and (2) a reasonable likelihood that the conduct affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 694 (1984); Sanchez v. State, 2009 OK CR 31, ¶ 98, 223 P.3d 980, 1012. In this situation, Appellant must show that if counsel had filed a motion to quash for insufficient evidence, it would have been granted, and that the State would have been unable to refile the prosecution and proceed to trial with additional evidence. See 22 O.S.2011, § 504.1 (D) (granting a motion to quash for insufficient evidence does not bar further prosecution for the same offense).

¶5 Appellant's contention is that at preliminary hearing, the child victim was "unavailable" under 12 O.S.Supp.2014, § 2804 (A)(3) because she testified to a lack of memory about some things. Because the witness was unavailable, he claims, her hearsay statements describing sexual abuse (her drawings and...

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