Wall v. State, 052120 OKCRI, F-2018-567

Docket Nº:F-2018-567
Opinion Judge:LUMPKIN, JUDGE
Party Name:CHRISTOPHER ALLEN WALL, Appellant v. THE STATE OF OKLAHOMA, Appellee.
Attorney:STEVEN VINCENT COUNSEL FOR THE DEFENSE STEVE KUNZWEILER DISTRICT ATTORNEY RAY PENNEY DANNY LEVY ASST. DISTRICT ATTORNEYS COUNSEL FOR THE STATE LISBETH L. McCARTY COUNSEL FOR APPELLANT MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA WILLIAM R. HOLMES THEODORE M. PEEPER ASST. ATTORNEYS GENERAL COUNSEL FOR...
Judge Panel:LEWIS, P.J. Concur KUEHN, V.P.J. Concur HUDSON, J. Concur ROWLAND, J. Concur KUEHN, V.P.J., CONCURRING IN RESULT:
Case Date:May 21, 2020
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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2020 OK CR 9

CHRISTOPHER ALLEN WALL, Appellant

v.

THE STATE OF OKLAHOMA, Appellee.

No. F-2018-567

Court of Criminal Appeals of Oklahoma

May 21, 2020

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE WILLIAM LAFORTUNE, DISTRICT JUDGE

APPEARANCES AT TRIAL

STEVEN VINCENT COUNSEL FOR THE DEFENSE

STEVE KUNZWEILER DISTRICT ATTORNEY RAY PENNEY DANNY LEVY ASST. DISTRICT ATTORNEYS COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

LISBETH L. McCARTY COUNSEL FOR APPELLANT

MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA WILLIAM R. HOLMES THEODORE M. PEEPER ASST. ATTORNEYS GENERAL COUNSEL FOR THE STATE

SUMMARY OPINION

LUMPKIN, JUDGE

¶1 Appellant Christopher Allen Wall was tried by jury and found guilty of Endeavoring to Manufacture a Controlled Drug (Count I) (63 O.S.2011, § 2-408) and Possession of a Controlled Drug (Count II) (63 O.S.Supp.2012, § 2-402) both counts After Former Conviction of Two or More Felonies, in the District Court of Tulsa County, Case No. CF-2016-3548. The jury recommended as punishment forty (40) years in prison in Count I and twelve (12) years in prison in Count II, with a $10, 000.00 fine in each count. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals.

¶2 Appellant raises the following propositions of error in support of his appeal: I. The trial judge erred by allowing evidence of a prior conviction to be used as "identity" evidence and common scheme or plan evidence.

II. The evidence was insufficient to convict Appellant of the charge of Endeavoring to Manufacture.

III. The evidence was insufficient to prove that Appellant possessed methamphetamine.

IV. Evidentiary Harpoons deprived Appellant of a fair trial and due process of law.

V. The officer rendered an improper expert opinion.

VI. The trial court erred by admitting evidence about red phosphorous when no red phosphorous was found in this case.

VII. Prosecutorial misconduct deprived Appellant of a fair trial.

VIII. Ineffective assistance of counsel deprived Appellant of a fair trial and due process of law.

IX. The sentences were excessive.

X. Cumulative error deprived Appellant of a fair trial.

¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

¶4 In Proposition I, Appellant contends the trial court erred in admitting evidence that in 2000 he operated a methamphetamine lab out of his home. The trial court admitted the evidence under the identity exception to the rule against admission of other crimes evidence under 12 O.S.2011, § 2404 (B). Appellant argues on appeal that the evidence was improperly admitted as it does not prove his identity as the operator of the methamphetamine lab in the present case.

¶5 In admitting the evidence, the trial judge explained that he determined the identity exception was the most appropriate exception because of defense counsel's argument that Appellant had no knowledge of the working methamphetamine lab found in the detached garage of the home he shared with his parents, and that it was others who were coming and going from the garage who were actually manufacturing the methamphetamine. In light of Appellant's timely objection, our review of the trial court's admission of the evidence is for an abuse of discretion. Marshall v. State, 2010 OK CR 8, ¶ 24, 232 P.3d 467, 474. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Id.

¶6 "The general rule is that, when an accused is placed on trial, he is to be convicted by evidence that shows him guilty of the offense charged and not of other offenses not connected with the charged offenses." Williams v. State, 2008 OK CR 19, ¶ 36, 188 P.3d 208, 218-219. "Evidence that a defendant committed other crimes, however, is admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Id. 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.

¶7 "Identity can be proven by a highly peculiar method of committing a crime." Williams, 2008 OK CR 19, ¶ 37, 188 P.3d at 218-219, citing Driskell v. State, 1983 OK CR 22, ¶ 25, 659 P.2d 343, 349. "[T]he identity exception... 'requires unique similarities between the crimes amounting to a 'signature'". Neloms v. State, 2012 OK CR 7, ¶ 14, 274 P.3d 161, 164. "Identity is the more appropriate label for... signature evidence because distinctive methods of operation are indicative of who perpetrated the crime." Williams, 2008 OK CR 19, ¶ 37, 188 P.3d at 219, quoting Welch v. State, 2000 OK CR 8, ¶ 11, 2 P.3d 356, 366.

¶8 However, the terms "signature crimes" or "signature evidence" do not require that the crimes be identical in all respects but merely that they share unique or unusual aspects from which one might reasonably infer that both were committed by the same person. See U.S. v. Porter, 881 F.2d 878, 887 (10th Cir. 1989) ("evidence of another crime need not be identical to the crime charged, but need only be similar and share with it 'elements that possess 'signature quality'"). In Pickens v. State, 1988 OK CR 35, 751 P.2d 742, without using the term "signature crime", this Court found sufficient similarities where both robberies were committed just across the county line, using the same weapon and mask, stating: We find that the evidence of the Tulsa County robbery was admissible to prove the identity of the perpetrator or a common scheme or plan which embraces the commission of two or more crimes so related to each other that proof of one tends to establish the other.

1988 OK CR 35, ¶ 3, 751 P.2d at 743.

¶9 Similarly, where evidence from one crime shows up at another scene, proof of the former might be probative in...

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