http://www.okbar.org/obj/pdf/2010/OBJ2010June19

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OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Lou Ann Moudy, Henryetta David A. Poarch, Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, OBA/Young Lawyers Division

24 – 26 Solo and Small Firm Conference; Downstream Casino Resort; Quapaw, Oklahoma; Contact: OBA Management Assistance Program (405) 416-7008

BAR Center Staff

YLD Midyear Meeting; Downstream Casino Resort; Quapaw, Oklahoma; Contact: Molly Aspan (918) 594-0595

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OBA Board of Governors Meeting; Downstream Casino Resort; Quapaw, Oklahoma; Contact: John Morris Williams (405) 416-7000

John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Nina Anderson, Manni Arzola, Debbie Brink, Melissa Brown, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Amy Kelly, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough

EDITORIAL BOARD Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott Buhlinger, Bartlesville; Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau

events Calendar JUNE 2010 21

OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) 640-2819

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OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Sharisse O’Carroll (918) 584-4192

JULY 2010 5

OBA Closed – Independence Day Observed

7

OBA Women in Law Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Renee DeMoss (918) 595-4800

9

OBA Diversity Committee Meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Marvin Lizama (918) 742-2021

OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800

14

OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Allison Thompson (405) 840-1661

15

OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A. McClure (580) 248-4675

17

OBA Title Examination Standards Committee Meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Kraettli Epperson (405) 848-9100 For more events go to www.okbar.org/calendar

The Oklahoma Bar Association’s official website:

www.okbar.org

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The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.

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The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

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Dallas Makes Three

corporate and insurance law focus of new texas office

Travis Dunn

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McGill has been lead counsel on countless jury trials and successfully steered appeals through state and federal courts.He has won trials on high exposure cases: product Kerry McGill liability, insurance defense, mass tort, employment and commercial litigation.

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105 N. Hudson, Suite 100 Hightower Building Oklahoma City, OK 73102 Vol. 81 — No. 17 — 6/19/2010

Oklahoma Bar Association

table of

contents June 19, 2010 • Vol. 81

• No. 17

page 1419 Events Calendar 1422 Index to Court Opinions 1423 Supreme Court Opinions 1442 Court of Criminal Appeals Opinions 1463 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 44 IN THE MATTER OF OKLAHOMA SUPREME COURT RULES, Part I Rules of General Application Rule 1.1 Title, Citation, Scope, Effective Date of Rules and Unsettled Procedure SCAD No. 2010-37................................................................................ 1423 2010 OK 45 JUDY A. DAVIS Appellant/Petitioner, v. OKLAHOMA EMPLOYMENT SECURITY COMMISSION and TINKER AFB 72 FSS/FSSCEM, Appellee/Respondents. No. 107,100.............................................................................................................................. 1423 2010 OK 43 In the Matter of the Reinstatement of Diana Lynn Mooreland-Rucker, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys SCBD No. 5494....................................................................................................................................................... 1427 2010 OK 46 IN THE MATTER OF: M.S. and K.S., Deprived Children. PUYALLUP TRIBE OF INDIANS, Plaintiff/Appellant, v. STATE OF OKLAHOMA, Defendant/Appellee.

No. 103,921.......................................................................................................................................... 1432 2010 OK 26 DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant, v. CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/ Appellees. No. 105,943...................................................................................................................... 1440

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 12 KENDRICK ANTONIO SIMPSON, Appellant v. STATE OF OKLAHOMA, Appellee Case No. D-2007-1055....................................................................................................... 1442 2010 OK CR 11 MICHAEL LEON WILLIAMS, Appellant -vs- STATE OF OKLAHOMA, Appellee Case No. C-2009-169......................................................................................................... 1442 2010 OK CR 10 CLARENCE ROZELL GOODE, JR., Appellant v. STATE OF OKLAHOMA, Appellee No. D-2008-43..................................................................................................... 1445 2010 OK CR 9 CRYSTAL LEA WATSON, Appellant v. STATE OF OKLAHOMA, Appellee Case No. F-2009-400........................................................................................................................... 1459

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Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2010 OK 44 IN THE MATTER OF OKLAHOMA SUPREME COURT RULES, Part I Rules of General Application Rule 1.1 Title, Citation, Scope, Effective Date of Rules and Unsettled Procedure SCAD No. 2010-37. June 8, 2010 ORDER Rule 1.1 of Oklahoma Supreme Court Rules is hereby amended by adding thereto subdivision (d). As so amended the Rule is stated below. It shall be effective from this date. (a) Title and Citation. These rules shall be known as the Oklahoma Supreme Court Rules, and may be cited “Okla.Sup.Ct.R. [Rule Number].” (b) Scope and Effective Date. These rules govern proceedings in the Oklahoma Supreme Court and in the Oklahoma Court of Civil Appeals. These rules also have application to certain proceedings in lower tribunals which are incident to appeal or review from decisions of such tribunals.

The rules of general application, Part I of these Rules, shall apply to all proceedings before the Court of Civil Appeals and the Supreme Court.

These rules shall govern all proceedings commenced in the Oklahoma Supreme Court on and after January 1, 1997. In proceedings pending on the effective date, the parties shall comply with these rules to the extent possible. (c) Unsettled Procedure. Any point of practice or procedure which stands unsettled by statutory or decisional law and is not specifically addressed by these rules will be resolved by the Supreme Court as the orderly administration of legal process may require. (d) Review of Online District Court Dockets The court may review information found on Oklahoma district court appearance Vol. 81 — No. 17 — 6/19/2010

dockets posted on the World Wide Web, such as on www.oscn.net or www.odcr. com, in order to enhance the court’s ability to inquire into and protect its jurisdiction.

The court’s present-day capacity to conduct an exploratory review of district court records does not diminish one iota the parties’ duty to provide for this court an adequate record for corrective relief by appeal or otherwise to comply with these Rules.

This order shall be published three times in the Oklahoma Bar Journal and shall be included in the official publication of statutes.

DONE BY THE SUPREME COURT IN CONFERENCE THIS 7TH DAY OF JUNE, 2010. /s/ James E. Edmondson CHIEF JUSTICE Edmondson, C.J., Taylor, V.C.J., Hargrave, Opala, Kauger, Winchester, Colbert and Reif, JJ., concur Watt, J., not voting 2010 OK 45 JUDY A. DAVIS Appellant/Petitioner, v.

OKLAHOMA EMPLOYMENT SECURITY COMMISSION and TINKER AFB 72 FSS/ FSSCEM, Appellee/Respondents.

No. 107,100. June 15, 2010 ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 Respondent, Tinker AFB 72 FSS/FSSCEM, appealed the decision of the Oklahoma Employment Security Commission to award Petitioner, Judy Davis, unemployment benefits. The Appeal Tribunal of the OESC reversed the prior finding and Davis appealed to the Board of Review, which upheld the Appeal Tribunal’s finding. Davis next appealed to the District Court of Oklahoma County. The Honorable Vicki Robertson dismissed the appeal for lack of subject matter jurisdiction, citing Davis’ failure to name the Board of Review as a defendant as required by 40 O.S. Supp. 2008, § 2-610. Davis appealed and the Court of Civil Appeals, Division IV, reversed the trial court finding that

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although the Board of Review was not named in the style of the appeal, the Board nevertheless received notice as it was named in the body of the petition. This Court granted certiorari.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED. Brian M. Dell, BRIAN M. DELL, P.C., Oklahoma City, Oklahoma, for Petitioner/Appellant.

Teresa Thomas Keller, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Oklahoma City, Oklahoma, for Appellees/Respondents.

WINCHESTER, J. ¶1 The primary issue on appeal is whether failure to name the Board of Review (“Board”) of the Oklahoma Employment Security Commission (“OESC”), as a party to an appeal brought under 40 O.S. Supp. 2008, § 2-610, requires the dismissal of the action for failure to name a necessary party. We have previously addressed this issue in Edmondson v. Siegfried Ins. Agency, Inc., 1978 OK 45, 577 P.2d 72, and Oklahoma Employment Security Commission v. Carter, 1995 OK 74, 903 P.2d 868. In both cases, we regarded the failure to name the Board as a fatal, jurisdictional flaw. This case is no different.

BACKGROUND ¶2 Petitioner, Judy Davis (“Davis”), sought unemployment benefits after she was terminated by her employer, Tinker AFB 72 FFS/ FFSCEM (“Tinker”). OESC authorized such benefits to be paid and Tinker appealed the decision to OESC’s Appeal Tribunal. The Appeal Tribunal reversed OESC’s determination finding that Davis had been discharged for misconduct connected to her employment which disqualified her from receiving such benefits. Davis appealed the decision to the Board of Review which affirmed the Appeal Tribunal’s denial of benefits. ¶3 Davis next filed a petition for judicial review in the District Court of Oklahoma County. The caption of the petition listed only Tinker and OESC. The Board was not named in the caption, although Davis did serve a copy of the petition on the Board and the petition specifically mentioned the action of the Board.

OESC appeared specially to move for dismissal of the case on the ground that the Board was not named as required by 40 O.S. Supp. 2008, § 2-610(1).1 The Honorable Vicki Robertson dis1424

missed the appeal for lack of subject matter jurisdiction, citing Davis’ failure to name the Board as a necessary defendant as required by statute. Davis filed a petition in error and the Court of Civil Appeals (COCA), Division IV, reversed the trial court holding that although the Board of Review was not named in the style of the appeal, the Board nevertheless received notice as it was named in the body of the petition. We granted certiorari.

DISCUSSION ¶4 In appeals from decisions of the OESC, 40 O.S. Supp. 2008, § 2-610 provides for the filing of a petition for review in the district court “…against the Board of Review…” and further provides that all other parties to the proceeding before the Board be made co-defendants.

This Court has previously ruled that the failure to name the Board in an action for judicial review is fatal. Edmondson v. Siegfried Ins. Agency, Inc., 1978 OK 45, 577 P.2d 72, and Oklahoma Employment Security Commission v. Carter, 1995 OK 74, 903 P.2d 868. ¶5 In Oklahoma Employment Security Commission v. Carter, 1995 OK 74, 903 P.2d 868, this Court assumed original jurisdiction and prohibited the continued prosecution of an administrative appeal before the district in Pottawatomie County. That opinion registered disapproval of the district court’s allowance of an amendment to add the Board of Review as a party after the expiration of the ten-day appeal time. The Carter Court placed primary reliance on Edmondson v. Siegfried Ins. Agency, Inc., 1978 OK 45, 577 P.2d 72, which regarded the failure to name the Board as a fatal, jurisdictional flaw. ¶6 According to Edmondson, the judicial review provided by statute “is a special proceeding and the procedural requirements are mandatory.” Edmondson v. Siegfried Ins. Agency, Inc., 1978 OK 45, ¶4, 577 P.2d 72, 73. The terms of the statute must be complied with before the court can acquire jurisdiction. The statute clearly denominates the Board and the OESC as separate entities in proceedings for judicial review. ¶7 Davis urges that because she identified the Board in the body of the petition and served the Board with notice this was sufficient to satisfy § 2-610. COCA agreed dismissing the authority of the Edmondson and Carter cases by suggesting that those cases must have involved more than merely omitting the requisite party from the caption. We find nothing in those

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cases to support this finding. In fact, the Carter opinion specifically referenced Taylor v. Okla.

Employment Security Commission, 1993 OK CIV APP 195, 867 P.2d 490, a COCA case with facts similar to the case at bar where the Board was not named as a party but had been served with summons and the petition. In Taylor, the administrative appeal was held fatally flawed. ¶8 The holdings in Edmondson and Carter are clear: the omission of any necessary party requires dismissal by the district court. Davis’ failure to name the Board is fatal and the case is hereby dismissed.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED. CONCUR: EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, WATT, WINCHESTER, JJ. DISSENT: KAUGER (joins REIF, J.), COLBERT (joins REIF,J), REIF, JJ. 1. Section 2-610(1), which was not altered by the 2008 amendment, provides: Within the ten (10) days after the day a notice of decision of the Board of Review is mailed to the parties, the Oklahoma Employment Security Commission, or any party to the proceedings before the Board of Review, may obtain judicial review thereof by filing in the district court of the county in which the claimant resides, or if the claimant is not a resident of the State of Oklahoma then in the district court of Oklahoma County, a petition for review of such decision, against the Board of Review. In such petition for review all other parties to the proceeding before the Board of Review and the Commission shall be made codefendants. Such petition for review need not be verified but shall state specifically the grounds upon which such review is sought.

A copy of the petition for review shall be served upon a member of the Board of Review or upon such persons as the Board of Review may designate and the petitioner shall also deliver to the person so served as many copies of the petition as there are defendants. The Board of Review shall forthwith send by mail to each other party to the proceeding a copy of such petition, and such mailing shall be deemed to be service upon all such parties.

In any proceeding under this section the findings of the Board of Review as to the facts, if supported by evidence, shall be conclusive and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may remand the case and order additional evidence to be taken before the Board of Review, and the Board may, after hearing the additional evidence, modify its findings of fact or conclusions, and file the additional or modified findings and conclusions, together with the transcript of the additional record, with the court.

OPALA, J., concurring ¶1 Anglo-American law teaches that all judicial decisions in a system must conform to the precedential pronouncements of its highest court.1 In Oklahoma the tribunal accorded that status for noncriminal cases is her Supreme Court.2 Only those pronouncements by the Court of Civil Appeals which are declared to Vol. 81 — No. 17 — 6/19/2010

be precedential by the Supreme Court may claim precedential status.3 ¶2 Under scrutiny here for conformity to precedent is an opinion by the Court of Civil Appeals (COCA). A three-judge panel of that court, which considered this case, carved out an exception to this court’s precedential pronouncement. That exception had been earlier rejected by another panel in a published opinion.4 Today’s opinion by this court disapproves of the COCA departure from ruling precedent, deeming it to be unwarranted. I join the court’s pronouncement which gives full support to the legal system’s need for conformity to long-standing public-law precedent. Both the functionaries of our government, state and local, as well as the public dealing with them, must strictly conform to the norms of conduct fashioned by precedential jurisprudence of this court for their claims vis-a-vis each other (and defenses against them).5 ¶3 Caselaw must remain unchanged until it is altered by the precedent-setting tribunal.

Stability and consistency are of utmost importance. Disrepute of, and lack of faith in, our legal system will inevitably follow from an unpredictably changeable and non-uniform public-law jurisprudence.

1. Rupert Cross, Precedent in English Law, pgs. 103 et seq. (1st ed. 1961).

2. Art. 7 § 4, Okl.Const.; In re M.B., 2006 OK 63, ¶8,145 P.3d 1040, 1044; Smith v. Oklahoma Dept. of Corrections, 2001 OK 95, ¶6, 37 P.3d 872, 873.

3. 20 O.S.2001 §30.5; 20 O.S.2001 §30.14(C); Okla.Sup.Ct.R. 1.200(c)(2), 12 O.S.2001, Ch. 15, App.1; Manley v. Brown, 1999 OK 79, ¶9 n.9, 989 P.2d 448, 452 n.9.

4. Taylor v. State ex rel. Oklahoma Employment Security Commission, 1993 OK CIV APP 195, 867 P.2d 490.

5. “When a dispute presents a public-law controversy, we are generally free to grant corrective relief upon any applicable legal theory dispositive of the case and supported by the record.” State v. Torres, 2004 OK 12, ¶ 7, 87 P.3d 572, 578; City of Enid v. Public Employees Relations Bd., 2006 OK 16, ¶ 21, 133 P.3d 281, 289 (citing Special Indemnity Fund v. Reynolds, 1948 OK 14, ¶6, 188 P.2d 841, 842).

REIF, J., with whom Kauger and Colbert, JJ., join, dissenting. ¶1 The issue in this case is whether the claimant’s petition for judicial review was sufficient to invoke the district court’s jurisdiction. The majority holds the petition was not sufficient because it did not name the Board of Review as a defendant in the caption or style of the petition. The majority relies upon precedent that requires the appealing party to name all necessary parties in the petition for review. The majority also notes that (1) judicial review is a special proceeding, (2) the procedural requirements for judicial review are mandatory; and (3) the terms of the statute must be complied

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with before the court can acquire jurisdiction.

While I readily agree that these general principles govern judicial review, I do not agree that they are dispositive. ¶2 My chief disagreement with the majority opinion lies in the fact that the statute authorizing judicial review — 40 O.S. Supp. 2008, § 2610 — does not require the petition for judicial review to name the Board of Review in the caption or style of the petition. Indeed, the statute does not require the petition to be in any particular form or bear a particular caption or style. The statute simply provides that judicial review may be obtained by “filing . . . a petition for review . . . against the Board of Review.”

Examination of the body of the petition in the case at hand clearly reveals that the petition was filed “against the Board of Review.” As the Court of Civil Appeals opinion points out, (1) “the text of the petition recites the administrative history of the proceedings, including the appeal to the Board;” (2) “a copy of the Board’s opinion is attached to the petition;” (3) “[the petition] lists . . . errors in the proceedings and . . . reasons for judicial review;” and (4) “[the] petition requests the court . . . to reverse the ruling of the Appeal Tribunal/Board of Review.” ¶3 Not only does the statute not require the petition for review to be in any particular form or to bear a particular caption or style, it is well settled that the failure to name a party in the caption of a petition is a mere irregularity if the body of the petition otherwise states a cause of action against a defendant. Klopfenstein v. Okla.

Dep’t of Human Services, 2008 OK CIV APP 16, ¶ 17, 177 P.3d 594, 598 (citing Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (“[A] party not properly named in the caption . . . may still be properly before the court if allegations in the body of the [pleading] make it plain the party is intended as a defendant….”).

As this Court has said: A suit at law is not a children’s game, but a serious effort on the part of adult human beings to administer justice.* * * If [a pleading] names [a party] in such terms that every intelligent person understands who is meant, as the case here, [the pleading] has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else.

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C&C Tile Co. v. Indep. Sch. Dist. No. 7 of Tulsa County, 1972 OK 137, ¶ 24, 503 P.2d 554, 559 (citations omitted). ¶4 Furthermore, the fact that judicial review of a decision by the Board of Review is a special proceeding should not exempt the pleadings in such cases from being construed so as to do substantial justice. 12 O.S.2001 and Supp.

2009 § 2008(F). This Court has recently applied this rule in construing the pleadings in condemnation cases which are likewise special proceedings. State of Oklahoma ex rel. Dep’t of Transportation v. Cole, 2009 OK 40, ____P.3d ___. In Cole and its companion cases, this Court held that landowners had timely demanded a jury trial based on language in their respective motions to withdraw the commissioners’ award. Each motion stated landowners were withdrawing the commissioners’ award “pending trial of the issues by jury.” The reason it was necessary to construe such language as a demand for jury trial was that landowners formal pleadings entitled “Demand For Jury Trial” were filed out of time, whereas the motions to withdraw the commissioners’ awards were filed within the time to demand a jury trial. If this Court had not construed the language in the motions “as to do substantial justice,” the trial court would have lacked jurisdiction to give landowners a jury trial on the issue of damages. Id. at ¶¶ 15-17, ___ P.3d at ___. There is no cogent reason to refuse to construe the body of the petition for review in the case in hand as similarly sufficient to name the Board of Review and invoke judicial review by the district court. ¶5 The position taken by the majority is particularly alarming in light of the large numbers of people who pursue unemployment compensation benefits pro se. Such individuals most likely would not associate “filing . . . a petition . . . against the Board of Review” as requiring the naming of the Board of Review in the caption or style of the pleading. Indeed, a pro se person most likely would understand the statute to require only the statement of some reason or reasons why the pro se party believes the Board of Review is wrong. ¶6 Finally, there is no dispute that the petition in question was served on the Board of Review. Likewise, there is no dispute that the Board of Review understood the claimant was aggrieved by the decision of the Board and was seeking judicial review of that decision. No claim has been made that the Board or any

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other party was misled to their detriment, or that the form and content of the pleading caused any problem with respect to the Board preparing and transmitting the record to district court. The majority’s refusal to construe the petition for judicial review so “as to do substantial justice” exalts form over substance without furthering any reasonable purpose of the Unemployment Compensation Act. Accordingly, I cannot join such a strict interpretation of the statute governing judicial review and must respectfully dissent.

Diana Lynn Mooreland-Rucker, Petitioner, Dallas, Texas.

2010 OK 43

¶2 Petitioner began employment with the United States Department of Justice, Office of the United States Trustee, in Texas in 1992. She was subsequently admitted to practice before the United States District Court for the Northern District of Texas, which included authorization to practice in the United States Bankruptcy Court for the Northern District of Texas.

In the Matter of the Reinstatement of Diana Lynn Mooreland-Rucker, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys SCBD No. 5494. June 8, 2010 ORIGINAL PROCEEDING FOR RULE 11 BAR REINSTATEMENT ¶0 Diana Lynn Mooreland-Rucker (Petitioner) applied for reinstatement to the Oklahoma Bar Association (OBA) one year after she was administratively suspended and stricken from the Roll of Attorneys for nonpayment of dues. Prior to Petitioner’s suspension, Petitioner opened a private law office dedicated to federal bankruptcy law in Texas — a state in which Petitioner resided and was authorized to practice before the federal bankruptcy court, but not duly admitted to the Texas State Bar. The Professional Responsibility Tribunal (PRT) and the OBA jointly recommend reinstatement with a caveat concerning Petitioner’s practice of law in Texas. Upon de novo review, this Court holds that Petitioner’s prior legal practice in Texas constitutes the unauthorized practice of law pursuant to the Oklahoma Rules of Professional Conduct. However, today’s prospective application of this Court’s decision concerning multi-state practice allows the granting of Petitioner’s otherwise sufficient petition for reinstatement.

PETITION FOR REINSTATEMENT GRANTED UPON PAYMENT OF DUES AND COSTS. Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, Complainant.

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COLBERT, J. FACTS AND PROCEDURAL BACKGROUND ¶1 The facts are undisputed. Petitioner graduated from the University of Oklahoma School of Law on May 9, 1992. She was admitted to the OBA and her name was entered on the Roll of Attorneys on September 30, 1992, upon her successful completion of the Oklahoma Bar Examination.

¶3 In 2000, Petitioner left the U.S. Trustee’s Office and established a regular law practice in Texas dedicated solely to the practice of bankruptcy law without being admitted to the Texas State Bar. The record is silent as to whether Petitioner previously sat for the Texas Bar Exam or whether she attempted to gain admittance upon motion pursuant to the Texas State Bar rules. ¶4 Petitioner had no offices in Oklahoma.

She testified that her day-to-day practice activities included representing Texas consumer debtors in Chapters 7 and 13 bankruptcies in the Northern District of Texas Bankruptcy Court, but “never appeared in Texas state courts of any kind.” ¶5 After a time, Petitioner ceased paying her OBA dues. She abandoned her law license and pursued a new career as a sales director for Mary Kay Cosmetics. Petitioner’s membership to the OBA was stricken on July 2, 2007, and her name was removed from the attorney roster on September 15, 2008, solely for non-payment of dues. At the time of Petitioner’s administrative suspension, Petitioner was not the subject of any disciplinary investigation or proceedings. ¶6 On January 7, 2009, Petitioner petitioned for reinstatement. At the hearing before the PRT, Petitioner introduced seven letters attesting to her good moral character and records establishing 19 completed hours of continuing

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legal education, with a particular emphasis on bankruptcy law. Additionally, Petitioner paid the OBA $1,300.00 in delinquent dues and penalties on or about March 27, 2009. ¶7 Concerns were raised after Petitioner testified that she previously established a law practice in Texas and represented Texas debtors solely in bankruptcy court without being admitted to the Texas State Bar. The PRT’s concerns were heightened after Petitioner testified that, if her petition is granted, she will reopen her Texas law office and resume representing Chapter 7 and Chapter 13 debtors. The PRT’s presiding Master instructed Petitioner to submit a supplemental brief on whether Texas or any state, would consider Petitioner’s actions to be the unauthorized practice of law. In response, Petitioner and the OBA joined in the submission of a supplemental brief outlining the split of authorities on the issue. The Texas Supreme Court however, has not addressed this issue. ¶8 After careful review of the record, the PRT concluded: (1) Petitioner has not filed a previous petition for reinstatement; (2) Petitioner possesses good moral character entitling her to readmission to the OBA; and (3) Petitioner did not engage in the unauthorized practice of law during the period of suspension, and “[s]ubject to the caveat discussed below, Petitioner has met her burden of proof by clear and convincing evidence of each of the requisites to reinstatement found in Rule 11.5 of the Rules Governing Disciplinary Proceedings.” (emphasis added). Thus, Petitioner’s reinstatement hinges on whether this Court finds the act of opening a private law office dedicated to federal bankruptcy law in Texas without being admitted to the Texas State Bar constitutes the unauthorized practice of law.

STANDARD OF REVIEW ¶9 This Court exercises original jurisdiction and applies the de novo standard of review to all reinstatement proceedings. In re Gassaway, 2002 OK 48, ¶ 3, 48 P.3d 805, 806. As a condition precedent to reinstatement, a hearing must be held before the trial panel of the PRT. Rule 11.5, Rules Governing Disciplinary Proceedings (RGDP), Okla. Stat. tit. 5, ch. 1, app. 1-A (2001).

Following the hearing, the PRT shall file the hearing transcript and a report containing specific findings as to whether an applicant: (1) possesses good moral character entitling the applicant to readmission; (2) has not engaged 1428

in the unauthorized practice of law during the period of suspension; and (3) possesses the competency and learning in the law required for readmission to practice law in Oklahoma.

Id. The burden however, is on the petitioner to establish these elements by clear and convincing evidence. In re Pearson, 2000 OK 61, ¶ 3, 9 P.3d 692, 694.

EVIDENCE AND ANALYSIS ¶10 At the hearing before the PRT, Petitioner established by clear and convincing evidence that she has paid the required fees and penalties which formed the basis of her suspension.

In addition, Petitioner submitted seven letters supporting her honesty, integrity, and high ethical standards. Petitioner also demonstrated that she has not practiced law since her suspension on July 2, 2007. Moreover, Petitioner has satisfied the procedural requirements for reinstatement. Petitioner complied with the notice requirements of Rules 11.1(a) and 11.3(b), RGDP; and no objections to her reinstatement were received. Lastly, Petitioner has not filed any applications for reinstatement prior to this proceeding and no funds were expended on her behalf from the Client Security Fund.

AUTHORIZED OR UNAUTHORIZED PRACTICE OF LAW ¶11 This Court’s inquiry, however, is not limited to whether the procedural requirements are met. In addition, this Court must look beyond the petition and consider Petitioner’s past and stated future conduct in determining a petitioner’s fitness for reinstatement — especially when such conduct may jeopardize Petitioner’s good standing. The caveat the PRT observed centers around Petitioner’s apparent practice of law in the State of Texas following her departure from the U.S. Trustee’s Office and opening a Texas law office dedicated to federal bankruptcy law without being admitted to the Texas State Bar.1 ¶12 At the outset, it is important to make clear what this case is and is not. It is a case of an attorney who is not admitted to practice law in Texas but is holding herself out to the public as an attorney from a principal office in Texas.2 This is not, however, a case involving an interstate partnership or association with practitioners whose principal offices are located in the state where the practitioners are licensed. In addition, this opinion in no way affects a licensed Oklahoma practitioner’s right to practice before federal courts.

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¶13 Petitioner maintains that this issue is one of federal, not state, concern because her practice is limited solely to federal law. Her position, in essence, splits the official admissions to practice into two components, federal and state. The Petitioner’s federal argument rests on her authorization to practice before the United States District Court for the Northern District of Texas. The federal government is the conferring authority on the right to practice in its courts, Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), which of course, is beyond the reach of any state. Clearly, that court controls whom it will authorize to practice before it3 and limits a practitioner’s legal services to those incidental to a specific or pending case in that court. In re Peterson, 163 B.R. 665, 673 (Bankr. D. Conn. 1994); see generally Local Rules of the United States District Court for the Northern District of Texas. That limited right however, is not to be confused with a state’s licensing of the right to practice law generally. ¶14 It is the scope of Petitioner’s state activities that are the gravamen of this Court’s and the PRT’s concern. Petitioner believes that she is free to establish and practice from her principal office in Texas. Conceptually, this contention is not derived from the Northern District’s limited grant of authority to appear on current, pending, or potential litigation in that tribunal.

Rather, the ability to conduct business in this manner hinges on the substantive law Petitioner will utilize in a Texas debtor’s case, thus invoking the purview of the state. While a state may not impinge upon a federally conferred right to practice law within a federal court, a state’s compelling interests in regulating and controlling the general practice of law within its boundaries have not been surrendered. see generally, Grace v. Allen, 407 S.W.2d 321 (Tex. Civ.App. 1966); see also Palmer v. Unauthorized Practice Comm. of State Bar of Tex., 438 S.W.2d 374, 377 (Tex. Civ. App. 1969) (noting that it is the state’s duty to regulate the practice of law so as to promote the public’s interest, safety, and welfare). In fact, bankruptcy courts look to state law to determine what constitutes the unauthorized practice of law. In re Stacy, 193 B.R. 31, 38 (Bankr. D. Or.1996) (holding that a non-attorney bankruptcy preparer who counseled and advised clients of their legal rights engaged in the unauthorized practice of law as defined by the state of Oregon). ¶15 Texas has exercised its licensing authority and promulgated Rule 81.102(a) of the Vol. 81 — No. 17 — 6/19/2010

Texas Government Code, sharply limiting the practice of law to members of the Texas State Bar.4 The practice of law generally is defined as the rendering of legal services for someone else. Unauthorized Practice of Law Comm. v.

Am. Home Assur. Co., Inc., 261 S.W.3d 24, 36 (2008), reh’g denied. These services include, but are not limited to, the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.

In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 770 (Tex.1999) (citing Tex. Gov’t Code § 81.101(a)). Additionally, the judiciary has the power to determine whether other services and acts not enumerated constitute the practice of law. Id. at 771. Although section 81.101(a) defines what activities are considered the practice of law, guidance as to what constitutes an improper practice by an out-of-state practitioner is lacking. Thus placing out-of-state practitioners in peril of committing the unauthorized practice of law. ¶16 The Texas Unauthorized Practice of Law Committee (UPLC), together with the Texas Board of Law Examiners and the Texas courts, police the unauthorized practice of law within the borders of Texas. While these entities are empowered to assist the Supreme Court of Texas in determining whether violations have occurred, none of these entities are empowered to issue advisory opinions or make a formal determination as to what activities constitute the practice of law. Unauthorized Practice of Law Comm. v. Am. Home Assur. Co., 261 S.W.3d at 35; see also In re Nolo Press/Folk Law, Inc., 991 S.W.2d at 771-773. Injecting more confusion in the analysis is the lack of the Texas State Bar’s disciplinary authority over out-ofstate practitioners who are neither recognized members of the Texas State Bar nor specially admitted by a Texas state court on a particular proceeding. see In re Nolo Press/Folk Law, Inc., 991 S.W.2d at 771-773; Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 96 (Tex. App. 2004); see V.T.C.A., Government

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Code Title 2, Subtitle G App. A, Disciplinary Procedure Rules 8.05. “Accordingly, the Outof-State Attorney is not subject to disciplinary proceedings or actions by the State Bar of Texas if any of his [or her] activities in Texas violate the Texas Disciplinary Rules, including but not limited to the restrictions on advertising contained therein.” Supreme Court of Texas Professional Ethics Committee, 1996 WL 277355 at *2 (1996). ¶17 The Professional Ethics Commission of the Supreme Court of Texas weighed in on the complexity of multi-state practices in Texas by out-of-state practitioners in 1996. See 1996 WL 277355. In that matter, a non-Texas lawyer sought to represent Texas immigrants solely before the United States Immigration and Naturalization Service and in federal courts.

Among the questions presented was one concerning the non-Texas lawyer’s ability to maintain a law practice within the borders of Texas.

Without making a formal determination as to whether such conduct constituted the unauthorized practice of law in Texas, the Committee concluded that “[a]s a practical matter, it simply may not be possible to separate federal and state law issues when representing clients on matters under the United States Immigration and Nationality Act” and “representation that also involves advice or other legal services relating to matters of Texas law . . . depending on the circumstances, constitute[s] the unauthorized practice of law in Texas . . . regardless of whether the Out-of-State Attorney lives outside of Texas, lives in Texas, [or] maintains an office in Texas . . ..”5 Id. at *2-3; see, e.g., In re Marcone, 2008 WL 6041371 at *7 (E.D.Pa. 2008) (holding that “an attorney whose practice is limited to a federal court, and who is not admitted to practice in the state in which that court sits, may not engage in client triage, i.e., such an attorney cannot advise a potential client whether his or her matter should be brought in federal or state court”); Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 665 (2004). ¶18 Although Texas has declined to exercise jurisdiction over out-of-state practitioners like the Petitioner in this case, this Court’s disciplinary authority is far-reaching and permits this Court to exercise jurisdiction over Oklahoma Bar members regardless of where the lawyer’s conduct occurs. See RGDP Rule 1.1, Okla. Stat. tit. 5, ch. 1, app. 1-A (2001)6; see also ORPC Rule 8.5(a), Okla. Stat. tit. 5, ch. 1, app.

3-A (2001).

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¶19 Based on Petitioner’s conduct prior to her administrative suspension, it appears her actions ran afoul of ORPC Rule 5.5, which governs the unauthorized practice of law in the context of multi-jurisdictional practice. Rule 5.5(a) mandates that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” Okla.

Stat. tit. 5, ch. 1, app. 3-A (Supp. 2002). First, Petitioner is not admitted to practice in Texas where she established a continuous and systematic presence via her only office. Second, the legal services which Petitioner rendered can hardly be deemed limited to federal law given the fact that bankruptcy law is inextricably intertwined with state law. Third, the act of assessing the legal position of Texas debtors through analysis, interview, or explanation of legal rights and then representing only those clients whose cases squarely fit within the federal court’s jurisdiction is no shield against Petitioner’s unauthorized activities within Texas. ¶20 When a debtor first seeks financial triage, a practitioner must explore all viable options since bankruptcy may not be in the best interest of the debtor. That assessment implicates numerous state law issues, including the strength of the creditors’ claims and any defenses, other forms of debt relief, state foreclosure proceedings, and resolving the ultimate issue: to file or not to file, and the accompanying consequences.

Att’y Grievance Comm’n of Md. v. Harris-Smith, 737 A.2d 567, 573 (1999). Absent the knowledge of state law issues, a lawyer cannot competently advise the debtor and the lawyer may be influenced to tilt his advice toward filing for bankruptcy. Charles W. Wolfram, Sneaking Around in the Legal Profession: Inter-jurisdictional Unauthorized Practice by Transactional Lawyers, 36 S. Tex. L.Rev. 665, 698 (1995) (“such a lawyer would be motivated to cant advice artificially in the safe direction — away from local law and toward ‘authorized law . . ..’”). ¶21 ORPC Rule 8.5(b)(2) governs the choice of law when an Oklahoma practitioner’s conduct gives rise to disciplinary actions in another jurisdiction. That rule provides that “the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.” This Court finds that the State of Texas has not addressed the issue as to what

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constitutes an improper practice by an out-ofstate lawyer who is not licensed within that state. This Court further finds that Petitioner’s prior conduct is a violation of the Oklahoma Rules of Professional Conduct.7 ¶22 “The nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law is solely vested in this Court.” State ex rel. Okla. Bar Ass’n v. Farrant, 1994 OK 13, ¶18, 867 P.2d 1279, 1287. Therefore, because Texas has not addressed this issue, this Court declines to extend discipline pursuant to a Rule 11 adjudication. Accordingly, today’s decision calls for prospective application concerning the unauthorized practice of law in the multi-jurisdictional context.

CONCLUSION ¶23 The Petitioner has advised, under oath, that she intends to resume the same activities.

The Petitioner is warned that this conduct in the future would constitute the unauthorized practice of law and would warrant disciplinary action. Effective upon the payment of $533.03, the costs incurred in this reinstatement proceeding, it is ordered that petitioner, Diana Lynn Mooreland-Rucker, be reinstated to membership in the OBA and her name placed on the Roll of Attorneys licensed to practice law in Oklahoma. It is further ordered that Petitioner shall pay said costs and current membership dues within twenty days from the date this opinion is filed with the Clerk of this Court.

PETITION FOR REINSTATEMENT GRANTED UPON PAYMENT OF DUES AND COSTS. CONCUR: Edmondson, C.J.; Hargrave, Kauger, Winchester, Colbert, Reif, JJ. DISSENT: Taylor, V.C.J.; Opala, Watt, JJ. Taylor, V.C.J., dissenting: I would not simply advise the Petitioner that her clearly stated future plans would be the unauthorized practice of law. I would deny her reinstatement due to her admitted past conduct that clearly constituted the unauthorized practice of law.

Watt, J., dissenting: I would deny the Petitioner’s Application for Reinstatement.

1. The general practice of law is limited to attorneys licensed in and recognized as members of the State Bar of Texas. See Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 96 (Tex.App. 2004).

There are two authorized methods of engaging in the general practice of law in Texas: (1) satisfactorily completing the Texas Bar Examination as prescribed by Rule II of the Rules Governing Admission to the Bar

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of Texas, and (2) seek admission upon motion pursuant to Rule XIII of the Rules Governing Admission to the Bar of Texas, which exempts out-of-state practitioners from the Texas Bar Examination if certain qualifications enumerated therein are satisfied.

2. Accord Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 661 (Pa. 2004) (concluding “that by [attorney’s] maintenance of a law office, from which he holds himself out to the public and advises clients as to their legal rights, he has engaged in the practice of law. . ..”).

3. Civil Rule LR 83.7 of the Local Rules of the United States District Court for the Northern District of Texas, reads: Attorneys must fulfill the following requirements to be admitted to practice in this court: a. Eligibility for Admission. Any attorney licensed to practice law by the Supreme Court of Texas, or by the highest court of any state or the District of Columbia, may be admitted to the bar of this court if the attorney is of good personal and professional character and is a member in good standing of the bar where the attorney is licensed.

4. See also, Tex. Gov’t Code § 81.051(a). Compare sections 81.102(a) and 81.051(a) of the Texas Government Code with Texas Penal Code sections 38.122-38.123 (Vernon 2001). “The restrictions [contained in these provisions] are essentially the same . . ..” Unauthorized Practice of Law Comm. v. Am. Home Assur. Co., 261 S.W.3d 24, 51 (Supp. 2008), reh’g denied. However, it should be noted that the class of violators contained in the penal provision categorically excludes lawyers. Id. at 45.

5. [It] simply may not be possible to separate federal and state law issues. . .[f]or example, Texas law governing family matters such as marriage, divorce and adoption may be determinative in certain immigration cases; likewise, immigration law questions may necessarily involve giving advice on Texas criminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging in the unauthorized practice of law in Texas inevitably increases with the number of immigration and nationality cases handled by [an] Out-of-State Attorney.

1996 WL 277355 at *2.

6. Rule 1.1 governs this Court’s jurisdiction and provides: This Court declares that it possesses original and exclusive jurisdiction in all matters involving admission of persons to practice law in this State, and to discipline for cause, any and all persons licensed to practice law in Oklahoma, hereinafter referred to as lawyers, and any other persons, corporations, partnerships, or any other entities (hereinafter collectively referred to as “persons”) engaged in the unauthorized practice of law. This Court further declares that a member of the Bar of this State may not take unto himself any office or position or shroud himself in any official title which will place him beyond the power of this Court to keep its roster of attorneys clean. In the exercise of the foregoing jurisdiction, this Court adopts and promulgates the following rules which shall govern disciplinary and unauthorized practice of law proceedings.

7. ORPC Rule 8.5(a) addresses the discipline authority of this jurisdiction. This rule states, “[a] lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. . . . A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.”

OPALA, J., dissenting ¶1 Petitioner for reinstatement seeks renewal of her Oklahoma license for use collateral to that which the license is to serve. Its legal purpose is to authorize a person to practice law in Oklahoma. She seeks it to serve as primary state bar membership for needed legal support of her federal bankruptcy practice in Texas. In my view, an Oklahoma license to practice law should not be issued when it is apparent that the applying licensee’s Texas bankruptcy practice has no proven nexus to a sustained stream of Oklahoma clientele.

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¶2 I must therefore recede from today’s reinstatement of petitioner’s Oklahoma license to practice law.

2010 OK 46 IN THE MATTER OF: M.S. and K.S., Deprived Children. PUYALLUP TRIBE OF INDIANS, Plaintiff/Appellant, v. STATE OF OKLAHOMA, Defendant/Appellee.

No. 103,921. June 15, 2010 ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 The Puyallup Tribe of Indians moved to transfer jurisdiction of a case involving two Puyallup Tribe Indian children to tribal court or, in the alternative, to change placement to a tribal member after the termination of the parental rights of their parents. The trial court denied relief, finding “good cause” for denying transfer existed because of the length of time the State had exercised jurisdiction prior to the Tribe’s motion, the relationships the children had developed and the relevant evidence located in Oklahoma. The Tribe appealed, and the Court of Civil Appeals affirmed. This Court previously granted certiorari.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; TRIAL COURT’S ORDER DENYING MOTION TO TRANSFER JURISDICTION IS REVERSED; REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THE VIEWS EXPRESSED IN THIS OPINION. Michael E. Yeksavich, YEKSAVICH LAW OFFICE, Tulsa, Oklahoma, and Debra W. McCormick, Eugene K. Bertman, Jennifer McBee, RUBENSTEIN McCORMICK & PITTS, P.L.L.C., Edmond, Oklahoma, for Appellant, Jerry S. Moore, DISTRICT ATTORNEY, Gary Huggins, ASSISTANT DISTRICT ATTORNEY, Michael J. Spychalski, ASSISTANT DISTRICT ATTORNEY, Wagoner, Oklahoma, for Appellee, Amy B. McFarland, Wagoner, Oklahoma, for Minor Children.

OPINION WATT, J.: ¶1 In this case we consider a jurisdictional dispute between the tribal court of the Puyal1432

lup Tribe of Indians and the courts of this state involving the placement of two Indian children, M.S. and K.S. We previously granted certiorari. We reverse and remand.

FACTS ¶2 This case began as a deprived child proceeding in August, 2004, when an emergency petition was filed by the State of Oklahoma, ex rel. Department of Human Services, to remove M.S. and K.S. (“the children”), and their two older half-siblings, A.H. and K.H., from their parents’ home. M.S. and K.S. are registered members of the Puyallup Tribe of Indians (the Tribe), as is their father. All of the children have the same mother, who is of Cherokee descent, but the two older children have a different father. All four children were placed in a foster home together, but the oldest child, A.H., an enrolled Cherokee member, moved to Texas to live with her biological father. M.S. and K.S. remained in the foster home with their older brother, K.H., also a Cherokee member,1 for approximately two years. On June 21, 2006, the parental rights of M.S.’s and K.S.’s parents were terminated. The Tribe then filed a petition to transfer the case to its tribal court in Tacoma, Washington, or alternatively, for placement of M.S. and K.S. with their great aunt in Florida, in compliance with the placement preferences in subchapter one of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§1901-1923, specifically 25 U.S.C. §1915(b).2 The trial court denied its requests, and the Tribe appealed. The Court of Civil Appeals (“COCA”) affirmed. ¶3 The foster parents (the Simmons) have expressed an interest in adopting K.H., M.S. and K.S., although no petition for adoption had been filed as to M.S. and K.S. at the time this appeal was commenced on October 26, 2006.

During the pendency of this appeal, M.S. and K.S. were placed with their great aunt in Tampa, Florida.3 ¶4 After the termination case concluded, the State gave notice to the Simmons of a change in placement. The Simmons filed an objection to removal of the children from their home and requested a hearing. Notice of the hearing was not sent to the Tribe. Although it learned of the hearing, it complains it did not have time to file a written response. After the Simmons’ objection to removal was sustained, the court considered the Tribe’s motions for transfer and change of placement. After a hearing on September 21, 2006, the trial court denied the

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Tribe’s requested relief. In its September 28, 2006, Order Overruling Petition to Transfer to Tribal Court and Overruling Motion for Placement, the trial court held: There is good cause for the Court to decline to transfer jurisdiction to the Puyallup Tribe due to the length of time that the State of Oklahoma has exercised jurisdiction prior to the tribe’s motion and the relationships established between the children and their foster parents, their attorney, their CASA, DHS social workers, and medical providers. Furthermore, most relevant evidence regarding the children is located in the State of Oklahoma. ¶5 The Tribe’s alternative Motion for Placement, in which the Tribe requested placement with the children’s biological great aunt residing in Florida, a Puyallup tribal member, was overruled in the same order. ¶6 At issue in this case is whether COCA correctly interpreted the ICWA when it affirmed the trial court’s order denying the Tribe’s motion to transfer jurisdiction to tribal court and its alternative motion for relative placement during the pre-adoption stage of these proceedings. We hold COCA erred: (a) by interpreting the ICWA to preclude tribal court jurisdiction after the parental rights to two Indian children were terminated, (b) by finding “good cause” not to transfer, and (c) by failing to use the “clear and convincing” evidence standard in its review of the trial court’s finding of “good cause” to deny the Tribe’s requests.

We previously granted the Tribe’s petition for certiorari. We reverse and remand.

JURISDICTION ¶7 For purposes of the ICWA, tribal courts have exclusive jurisdiction over “child custody proceedings” involving Indian children who are domiciled within the reservation. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (Holyfield); 25 U.S.C. §1911(a) of the ICWA.4 Indian children of parents domiciled on the reservation are also considered domiciled on the reservation. This was the Court’s holding, although the parents tried to avoid the ICWA by going off the reservation for the child’s birth. Holyfield, 490 U.S. 30, 48-49, 109 S.Ct. 1597, 1608. Thus, because Indian children born off the reservation were considered domiciled on the reservation, the tribal court had exclusive jurisdiction of a voluntary adoption Vol. 81 — No. 17 — 6/19/2010

by non-Indian adoptive parents. Holyfield, 490 U.S. 30, 49, 109 S.Ct. 1597, 1609. ¶8 In contrast to the present case, it is undisputed that neither M.S., K.S., nor their parents, resided on the reservation. We must therefore consider 25 U.S.C. §1911(b)5 which concerns jurisdiction over “child custody proceedings” for non-domiciliary Indian children. The Tribe contends transfer to tribal court may occur in this case, absent good cause to the contrary.

The State responds that although §1911(a) applies to “any child custody proceeding”6 involving an Indian child, §1911(b) applies only to transfers of “foster care placement” or “termination of parental rights” proceedings. [emphasis added] ¶9 The trial court’s denial of transfer to tribal court was based on its findings of “good cause to the contrary,” as noted above, but not because the Tribe’s transfer request came after the termination proceeding ended. However, in support of the trial court’s judgment, the State argued on appeal that because the Tribe did not move to transfer this case to tribal court at the time of the foster care placement or termination of parental rights proceedings, transfer was not required or allowed under §1911(b).

COCA agreed. ¶10 The record indicates the timeliness of the motion to transfer jurisdiction was not raised in the trial court but was first raised on appeal.

The Tribe argued it could not be considered.

COCA held that if the Tribe, as the Appellant, had raised an issue for reversal for the first time on appeal, consideration of it would be foreclosed, but that an Appellee is free to raise an argument which provides an additional reason to affirm the judgment, citing McMinn v. City of Oklahoma City, 1997 OK 154, 952 P.2d 517. ¶11 Regardless of the trial court’s reasoning, COCA’s construction of §1911(b) constitutes a question of law which affects the intent and purpose of the ICWA. COCA’s opinion also denies tribal court jurisdiction over an ICWA proceeding involving two members of its tribe, in favor of Oklahoma courts. It therefore affects our jurisdiction, as well. a. Purpose of the ICWA ¶12 At issue then is whether §1911(b) should be construed so narrowly and whether this construction complies with Congressional intent and the purpose of the ICWA. In arguing that the specific inclusion in §1911(b) of only

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“foster care placement” and “termination of parental rights” proceedings indicates an intent to exclude transfers of the other “child custody proceedings” defined by 25 U.S.C. §1903,7 the State promotes the rule of “expressio unius est exclusio alterius,” i.e., the mention of one thing in a statute implies exclusion of something else. See gen., Spiers v. Magnolia Petroleum Co., 1951 OK 276, ¶21, 244 P.2d 852, 856. However, the rule should be applied only as an aid in arriving at intention and should never be followed when doing so would override the intended purpose of the act. Public Service Company of Oklahoma v. State ex rel. Corporation Commission, 1992 OK 153, 842 P.2d 750.

COCA agreed with the State that a transfer to tribal court at the “preadoptive placement” stage was precluded because §1911(b) does not mention it. We acknowledge §1911(b) mentions transfers of only “foster care placement” and “termination of parental rights” proceedings “in the absence of good cause to the contrary....”

We must therefore determine whether Congress intended to exclude transfers of “preadoptive placement” and “adoptive placement” proceedings to tribal court.8 ¶13 We must read §1911(b) as it is written.

The court “shall transfer” foster care placement and termination of parental rights proceedings absent objections and a showing of good cause to the contrary. Reading what is contained in the statute, however, does not require us to read into the statute what is not there, i.e., that transfers may only be granted if requested before a termination of parental rights proceeding is concluded. ¶14 When considering the ICWA as a whole, as we must, we first look to the Congressional declaration of policy stated in 25 U.S.C. §1902,9 i.e., the protection of the best interests of Indian children, the stability and security of Indian tribes and families, and the preservation of Indian values and culture to be reflected in the placement of Indian children in foster and adoptive homes. [emphasis added] The Supreme Court considered this statement of policy and purpose in Holyfield upon determining that Congress did not intend to rely on state law for the definition of “domicile”: [I]t is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with rights of Indian families and Indian communities vis-a-vis state authorities. [footnote omit1434

ted] More specifically, its purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct.

490 U.S. at 44-45, 109 S.Ct. at 1606 [emphasis in original]. In a footnote accompanying the above text, the Court stated: This conclusion in inescapable from a reading of the entire statute, the main effect of which is to curtail state authority. See especially §§1901, 1911-1916, 1918. [emphasis added].

490 U.S. at 45, 109 S.Ct. at 1607. With that purpose in mind, we cannot construe §1911(b), as a matter of law, as an expression of intent to preclude tribal court jurisdiction when transfer is requested after parental rights are terminated. ¶15 Recognizing the importance of Indian children to Indian tribes, the Supreme Court also quoted approvingly from a case of the Utah Supreme Court which had become a well-known case on the ICWA, In re Adoption of Halloway, 732 P.2d 962 (1986):10 [I]t is precisely in recognition of this relationship [between Indian tribes and Indian children], however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and adoption matters for reservation-domiciled Indian children, and the preferred forum for nondomiciliary Indian Children.

[State] abandonment law cannot be used to frustrate the federal legislative judgment expressed in the ICWA that the interests of the tribe in custodial decisions made with respect to Indian children are as entitled to respect as the interests of the parents. [emphasis added.]

Holyfield, 490 U.S. 30, 52-53, 109 S.Ct. 1597, 1610, quoting In re Adoption of Halloway, 732 P.2d 962, 969-970 (Utah, 1986). b. Standard of Review ¶16 While Holyfield is factually distinguishable in its application to reservation-domiciled Indian children under §1911(a), it is instructive here because of the Court’s emphasis on “concurrent but presumptively tribal jurisdiction”

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in cases under §1911(b). Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 1601-1602. Because of the importance of Indian children to Indian tribes, as recognized by the Congressional ICWA policy statement, we will affirm a denial of transfer of jurisdiction to tribal court only upon a showing of “good cause to the contrary.” ¶17 While this Court has not decided the issue of the standard of proof required to prove “good cause to the contrary” in §1911(b) cases,11 and it is not designated in §1911, we have recognized the right of a parent “to the care, custody, companionship and management of his or her child is a fundamental right protected by the state and federal constitutions.” In the Matter of the Adoption of L.D.S., 2006 OK 80, ¶11, 155 P.3d 1, 4. In parental termination cases, “clear and convincing evidence” is the standard by which the termination-seeking claimant must prove the potential for harm to the child caused by a parent’s abuse or neglect. In the Matter of C.G., 1981 OK 131, ¶17, 637 P.2d, 66, 70-71. The nature of the parent-child bond requires proof more substantial than that afforded by the clear weight of the evidence or abuse of discretion standards approved by COCA in this case. It places an appropriately heavy burden upon the State to overcome the law’s policy which identifies the child’s best interest with that of his or her natural parents. Id. ¶18 “Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In the Matter of the Adoption of L.D.S., 2006 OK 80, ¶11, 155 P.3d 1, 4, quoting In re C.G., 1981 OK 131, ¶17, n. 12, 637 P.2d 66, 71 n. 12. This standard of proof “balances the parents’ fundamental freedom from family disruption with the state’s duty to protect children within its borders.” Matter of Adoption of L.D.S., 155 P.3d 4, ¶11, 155 P.3d at 4, quoting In re C.G., 1981 OK 131, ¶17, 637 P.2d at 70. ¶19 We acknowledge this case does not require us to decide whether parental rights were terminated by the appropriate “clear and convincing” evidence standard. However, we see a similarity in the potential for harm to the relationship between an Indian child and the child’s tribe if the standard of proof required for “good cause” not to transfer is inadequate.

It could allow a state court to sever the relationship between child and tribe and to determine the future course of Indian children’s Vol. 81 — No. 17 — 6/19/2010

lives without consideration of the “unique values of Indian culture” being reflected in their ultimate placement. See §1902, n. 10, supra. The “clear and convincing” standard is the appropriate standard to use here. To the extent In the Matter of J.B.,1995 OK CIV APP 91, 900 P.2d 1014, is inconsistent with our holding, it is expressly overruled. c. Good Cause ¶20 Unfortunately, “good cause” is not defined by the ICWA. Under the Bureau of Indian Affairs (BIA) Guidelines,12 44 Fed.Reg. 67584 (1979), “good cause” is defined by a nonexclusive list.13 In this case, the trial court’s findings of “good cause not to transfer” to tribal court were: (a) the length of time that the State of Oklahoma has exercised jurisdiction prior to the tribe’s motion; (b) the relationships established between the children and their foster parents, their attorney, their CASA representative, DHS social workers, and medical providers; and (c) the most relevant evidence regarding the children is located in the State of Oklahoma. ¶21 The length of time in which the State exercised jurisdiction before the Tribe’s request for transfer must be addressed because it affects the timeliness issue under §1911(b), i.e., whether transfer may be approved following the termination proceeding. Resolution of this issue will resolve the other two reasons for denying transfer, i.e., the children’s relationships and the availability of the evidence in Oklahoma. ¶22 The Tribe was not initially given notice on September 8, 2004, when the State filed its petition resulting in the removal of the children from the home. The State placed the children with the Simmons. The Tribe sought to intervene in this case on December 16, 2004, within three months after the petition was filed. It appears from the record that the State and the Tribe had an agreement that if reunification efforts failed and the State sought the termination of parental rights, the State would place M.S. and K.S. in a Puyallup foster home. When it became obvious that reunification would not occur, the State moved to terminate parental rights on March 28, 2006. Parental rights were terminated on June 21, 2006, by order filed June 23, 2006. ¶23 In apparent compliance with its agreement with the Tribe, the State gave notice of removal of placement on June 26, 2006. The

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Simmons objected to removal on July 5, 2006, and filed a request for hearing through the children’s attorney. However, the attorney did not serve a copy on the Tribe. In an affidavit by the Tribe’s counsel, Sandra Cooper, dated July 27, 2006, we learn that a copy of the motion was luckily included in a packet of other materials mailed to the Tribe, but with insufficient time to prepare for the hearing. The affidavit also provides that the Tribe’s efforts to participate in the hearing by telephone conference were attempted in vain.14 The objection to removal was granted, and the children remained in foster care with the Simmons. ¶24 The Tribe’s witness, Tara Reynon, social worker and director of children’s services for the Tribe, testified as to the alleged “24 month gap” which had passed since the children were removed from their home. She also spoke about the Tribe’s initial support for reunification of M.S. and K.S. with their parents. She stated: The first 12 months the Tribe was under the understanding that the children would remain here so that they could try to reunite with their parents. That was the first 12 months. And then since May of 2005 when we knew that they were — when we were getting the information that possibly that they wouldn’t be reunited that the children would be moved to Florida with a relative, which was our wishes from the beginning. So 12 months, we look at to where it was hopefully reunification.

So truly after it has only been 12 months, we’re looking for permanency. And not only that, but termination didn’t even occur until this year. So it hasn’t even been 12 [months] since the children were free for adoption. ...

We were very hopeful they would get their children back. ¶25 Delay also occurred due to the untimely death of the children’s great aunt, Gabriella Morely, the sister of Michelle Smith-Valdez, the current custodian. After plans were made for the children to be placed with Gabriella and her husband in Florida, she developed breast cancer and died shortly thereafter. Subsequent to Morely’s death, Smith-Valdez expressed an interest in becoming the custodian of the children.15 Visits were made with the children, and 1436

evidence showed that the children seemed happy around her and her grown children. ¶26 As noted above, parental rights were terminated on June 21, 2006, in this case. The Tribe offered three letters from Sandra Cooper, ICW Liaison for the Tribe, which were admitted into evidence at the transfer and placement hearing. They were addressed to Naomi Kelly, DHS Child Welfare Specialist. These letters are dated May 5, 2005, July 8, 2005 and November 30, 2005, and show that as much as a year before termination occurred, the Tribe showed an interest in having the children placed with Puyallup tribal family members. The evidence also shows that the family members had an interest in having the children and that the State was aware of their interest at that time. ¶27 COCA interpreted the Tribe’s actions as inadequate to overcome the requisite “good cause to the contrary” to justify denial of transfer under §1911(b). The timeliness issue was decided against the Tribe because transfer was not requested at the time of the “foster care placement” or “termination of parental rights” proceedings as a matter of law under §1911(b).

The appellate court appears to have satisfied itself that good cause to deny transfer existed on the basis of a lack of diligence. ¶28 However, we see the Tribe’s actions in a different light. We see delays caused through circumstances outside the Tribe’s control. Supporting the State’s reunification efforts should not result in allegations of a Tribe’s lack of diligence in requesting transfer. Evidence shows the Tribe’s interest in these children through the letters admitted into evidence, the agreement with the State for placement with a tribal member or family member if termination was sought, and the availability of not one, but two, great aunts wishing to take the children permanently. The record shows the Tribe was effectively prevented from attending a hearing which resulted in placement with the Simmons. The Tribe believed their agreement with the State for placement with tribal members or relatives would be honored, and because of this, waited to request transfer. It appears the Tribe was unfairly penalized for entering into that agreement. Moreover, the unfortunate circumstances of the death of the Children’s great aunt, Gabriella Morely, led to further delays. ¶29 In In the Interest of A.B., 2003 ND 98, 663 N.W.2d 625, a case this Court cited approvingly

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in The Matter of Baby Boy L., 2004 OK 93, 103 P.3d 1099,16 the North Dakota Supreme Court upheld a juvenile court’s decision overruling an order denying transfer to tribal court. The case was first heard by a judicial Referee. The Referee found the termination case was at an advanced stage of the child custody proceedings and was therefore untimely. The Referee also ruled the tribal court was an inconvenient forum. The juvenile court reversed. ¶30 The N.D. Supreme Court considered the BIA Guidelines’ discussion of “good cause” to deny transfer and stated: As relevant to this case, the BIA Guidelines state that good cause to deny transfer of a child custody proceeding to tribal court exists if the proceeding is at an advanced stage when the petition to transfer is received, or if the evidence to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. BIA Guidelines, § C.3(b)(i) and (iii) at 67591.

In re A.B., 2003 ND 98, ¶16, 663 N.W.2d at 631. ¶31 The Referee determined the length of time elapsed before requesting transfer ran from March 2001 until July 2002. In reaching that determination, the Referee found the foster care proceeding was part of the termination proceeding, and that the motion to transfer was thus filed at an advanced stage of the overall child custody proceeding and, therefore, untimely. The juvenile court disagreed, ruling the two phases were separate proceedings.

Moreover, the court found the tribe had filed its motion to transfer within approximately seven weeks after the petition to terminate parental rights was filed, and about two weeks before the scheduled trial, and that the termination proceeding was therefore not at an advanced stage when the transfer was requested. The Supreme Court agreed and upheld the juvenile court’s order overruling the Referee. ¶32 Whether a motion to transfer jurisdiction is timely is determined on a case-by-case basis.

In re AB, 2003 ND 98, ¶21, 663 N.W.2d 625, 632633. Relying on the BIA Guidelines, the Court noted: [T]he commentary to the BIA Guidelines indicates the requirement for a timely motion to transfer precludes a party from using delay tactics to “wear down the other Vol. 81 — No. 17 — 6/19/2010

side by requiring the case to be tried twice.”

Id. At a minimum, the BIA Guidelines contemplate that a motion to transfer is not timely if transfer would require a retrial.

In re AB, 2003 ND 98, ¶20, 663 N.W.2d 625, 632; c.f., In the Interest of D.M., R.M. III, and T.B.C., 2004 SD 90, 685 N.W.2d 768, wherein the South Dakota Supreme Court upheld a finding a transfer request was not timely, despite the tribe’s allegation it did not receive proper notice. The Court held the tribe had actual notice of the child custody proceeding “and that it was not prevented by the actions of the State from requesting transfer.” 2004 SD 90, ¶16, 685 N.W.2d 768, 772 [emphasis added].

The Court held instead that the delay was due to the Tribe’s apparent inability to find placement until it became aware the State intended to seek termination. Id. ¶33 In the instant case, it cannot be said that the Tribe’s delay in requesting transfer “was not prevented by the actions of the State . . . .”

In fact, the evidence supports a finding that the Tribe’s actions were consistent with its belief that, when reunification failed, the State would proceed to satisfy its agreement with the Tribe.

The record shows the motion to terminate parental rights was filed on March 28, 2006, but the order of termination was not filed until June 23, 2006. Next, the State’s notice to remove the children from the foster home was filed on June 27, 2006. The Simmons’ objection was then filed on July 5, 2006, but the Tribe only inadvertently received a copy of it and was, in effect, prevented from participating in a meaningful way. On July 27, 2006, the trial court sustained the Simmons’ objection to removal of the children. Then, on August 4, 2006, the Tribe filed its motion to transfer, followed by its petition to transfer on September 21, 2006. In summary, the Tribe had no reason to file a motion to transfer until sometime between July 5, 2006, when the Simmons objected to removal, and July 27, 2006, when the trial court sustained their objection. In other words, the longest the Tribe waited from the time of the objection until the petition to transfer was filed was seven weeks.17 We note that in A.B., supra, the Referee would have denied transfer under §1911(b) even during the proceeding to terminate parental rights, which is apparently allowed by the statute. Thus, the “case-to-case” basis for finding “good cause” is the approach we must follow, and of which we approve,

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when considering the long-term consequences of the jurisdiction of the tribal court in cases under the ICWA.

the time frame for the Plan is December, 2008, through June 2009. The Plan is ongoing, however, until the court sets the next review.

¶34 We also find this result to be consistent with Oklahoma’s Indian Child Welfare Act. Oklahoma’s ICWA applies to all child custody proceedings and thus provides better protection to the Tribe.18 See 25 U.S.C. §1921:

¶38 On April 15, 2009, 13 days before COCA issued its first opinion on April 28, 2009, the Tribe requested a stay of the proceedings, alleging that a hearing scheduled for June of that year may moot the appeal. It explained that the trial court had conducted a placement review hearing regarding the temporary placement of M.S. and K.S. on December 15 and 16, 2008, and that another one was set for June 9, 2009.

In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard. [emphasis added.] ¶35 In Cherokee Nation v. Nomura, 2007 OK 40, ¶26, 160 P.3d 967, 976-977, we held, citing Holyfield, that the “higher standard of protection” under §1921 extends to the Tribe as well as to the parent or Indian custodian of an Indian child. The Oklahoma Act’s purpose is to support the federal act. See 10 O.S. 2001§40.1.19 ¶36 The finding of “good cause” not to transfer was against the clear and convincing evidence in this case. The factual circumstances in this case should have worked in favor of the Tribe, not against it. COCA’s holding that transfer was not allowed under §1911(b), as a matter of law, violated the purpose and intent of the ICWA to preserve the bond between Indian tribe and child. Construing the statute in the manner it did, COCA effectively made the Tribe’s protections under the ICWA unavailable to it. The order denying the Tribe’s motion to transfer jurisdiction to the tribal court and COCA’s ruling affirming it are reversed.

PLACEMENT ¶37 We previously noted that during the pendency of this appeal, the trial court executed an “Order Changing Placement” on December 18, 2008, providing for placement with Michelle Smith-Valdez, the great aunt of M.S. and K.S. The trial court received evidence and then filed its Order Changing Placement on December 19, 2008. The court ruled there was no longer good cause to deviate from the ICWA placement preferences and placed the children with Smith-Valdez. The order incorporates and adopts the Florida Placement Transition Plan (Plan) attached thereto for M.S. and K.S., and 1438

¶39 The Tribe filed its petition for rehearing on May 18, 2009, raising, inter alia, the mootness issue because of the new placement order.

COCA issued its Order Granting Rehearing and Denying Motion to Stay on July 15, 2009, the same day it issued its new opinion on rehearing. ¶40 While the propriety of the placement order initially entered was properly preserved for appeal, on certiorari the Tribe contended the new order required us to declare the entire COCA opinion, as amended on rehearing, moot. This we decline to do. However, we also find it unnecessary to consider the errors raised by the Tribe on appeal regarding the first placement order20 because a new order is now in effect. ¶41 Although COCA noted in its Order Granting Rehearing and Denying Motion to Stay, that the new order is “provisional and not final” and “does not affect or rescind previous rulings made in this case, but shall apply in the present and prospectively,” we hold the new order renders the first order ineffective.21 ¶42 The opinion of the Court of Civil Appeals is vacated. The order of the trial court denying the Tribe’s motion to transfer this case to tribal court is reversed. The order of the trial court denying the Tribe’s alternative motion for placement is no longer in effect, having been replaced by a subsequent order. This case is remanded to the trial court for further proceedings in accordance with the views expressed in this opinion.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; TRIAL COURT’S ORDER DENYING MOTION TO TRANSFER JURISDICTION IS REVERSED; REMANDED TO THE TRIAL COURT FOR

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FURTHER PROCEEDINGS IN ACCORDANCE WITH THE VIEWS EXPRESSED IN THIS OPINION. EDMONDSON, C.J., OPALA, WATT, COLBERT, JJ. - CONCUR

KAUGER,

HARGRAVE, WINCHESTER, JJ. - CONCUR IN PART; DISSENT IN PART TAYLOR, V.C.J. - DISSENT REIF, J. - DISQUALIFIED 1. One of the issues raised by the Tribe is that, in affirming the trial court, COCA considered the “purported concerns” of the Cherokee Nation, despite no interest being claimed by it as to M.S. and K.S. 2. Section 1915(b) provides: (b) Foster care or preadoptive placements; criteria; preferences Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with — (i) a member of the Indian child’s extended family; (ii) a foster home licensed, approved, or specified by the Indian child’s tribe; (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.

3. On December 19, 2008, a different judge of the district court entered an Order Changing Placement. Subsequently, the Tribe filed its Petition for Rehearing, contending, inter alia, that the placement issue is moot and the COCA opinion is merely advisory and should be withdrawn. The Tribe also sought a stay pending appeal which COCA denied. COCA granted the rehearing on July 15, 2009, but found that the new placement order provided that it could be changed at any time and did not permanently resolve the issue.

4. 25 U.S.C. §1911(a) provides: (a) Exclusive jurisdiction An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. [emphasis added.]

5. 25 U.S.C. §1911(b) provides: (b) Transfer of proceedings; declination by tribal court In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe. [emphasis in original.]

6. “Child custody proceeding” is defined at 25 U.S.C. §1903(1): (i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated; (ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship; (iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

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(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

7. See note 6.

8. A different division of COCA held transfer is limited to the enumerated proceedings mentioned in §1911(b), in agreement with the COCA majority in this case. See In the Matter of J.B., 1995 OK CIV APP 91, 900 P.2d 1014.

9. The purpose of the ICWA is stated in the Act itself. See 25 U.S.C. §1902: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

10. The Indian mother, domiciled on a reservation, tried to circumvent the purpose of the ICWA by changing her child’s domicile through manipulation of state abandonment law. She arranged for a relative to take her son off the reservation to non-Indian adoptive parents to facilitate a voluntary adoption in state court. The trial court declared the child was abandoned and moved forward with the adoption. The Utah Supreme Court held in favor of tribal court jurisdiction because state court jurisdiction had been achieved through manipulation. The Court held “this receptivity of the non-Indian forum to nonIndian placement of an Indian child is precisely one of the evils at which the ICWA was aimed.” Halloway, 732 P.2d at 969, citing the H.R.Rep. No. 95-1386, 95th Cong., 2d Sess. 21, reprinted in 1978 U.S.Code Cong. & Ad. News 7530, 7532-33. Thus, although state court jurisdiction could have been found proper, the Supreme Court held it could not prevail in a case under the ICWA and ordered the transfer to tribal court.

11. It should be noted, however, that in considering “good cause” for denial of transfer to tribal court, we have held that the “best interests of the child” may be considered. In the Matter of N.L., 1988 OK 39, 754 P.2d 863, 869, citing with approval, Matter of M.E.M., 195 Mont.

329, 635 P.2d 1313, 1317 (1981). The Montana Supreme Court reversed and remanded M.E.M., advising the state trial court to first decide the state court/tribal court jurisdictional issue before the termination of parental rights issue. The Court held the State had to carry its burden of showing “good cause to the contrary” with “clear and convincing evidence that the best interests of the child would be injured by such a transfer.” The Court also required consideration of the BIA Guidelines, advising that the best interests of the child could prevent a transfer of jurisdiction upon a “clear and convincing” showing by the State.

M.E.M., 635 P.2d 1313, 1317.

12. The Guidelines are not statutes and are not mandatory. They represent BIA interpretations of ICWA provisions.

13. Under the BIA Guidelines, “good cause” is defined: (a) Good cause not to transfer the proceeding exists if the Indian child’s tribe does not have a tribal court as defined by the Act to which the case can be transferred. (b) Good cause not to transfer the proceeding may exist if any of the following circumstances exists: (i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing. (ii) The Indian child is over twelve years of age and objects to the transfer. (iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. (iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe. (c) Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists. (d) The burden of establishing good cause to the contrary shall be on the party opposing the transfer.

14. Ms. Cooper’s affidavit states that although arrangements were made for a telephone conference, they did not receive a call during the hearing.

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15. Ms. Reynon also testified what the Tribe’s understanding was if the parental rights were terminated: It’s been the Tribe’s understanding that the great aunt — first, Gabriel was going to be the placement resource. When she passed away, it was going to be Ms. Valdez.

16. In Baby Boy L., this Court declared the doctrine of the “existing Indian family exception” to the application of the ICWA was no longer viable. We recognized A.B. as a case which was in accord with our holding.

17. From the time of the Simmons’ objection (July 5, 2006) until the Tribe’s “motion to transfer” on August 4, 2006, is only four weeks.

18. Oklahoma’s counter-part to this section of the ICWA, 10 O.S. 2001 §40.3, provides in part: B. Except as provided for in subsection A of this section, the Oklahoma Indian Child Welfare Act applies to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.

19. 40.1. Purpose-Policy of state The purpose of the Oklahoma Indian Child Welfare Act is the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the federal Indian Child Welfare Act, P.L. 95-608. It shall be the policy of the state to recognize that Indian tribes and nations have a valid governmental interest in Indian children regardless of whether or not said children are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated. It shall be the policy of the state to cooperate fully with Indian tribes in Oklahoma in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced.

Moreover, we noted in The Matter of Baby Boy L., 2004 OK 93, 103 P.3d 1099, our Legislature’s obvious awareness of Holyfield in its attempt to conform our laws with the federal ICWA by eliminating the “existing Indian family exception” from our jurisprudence. See note 16, supra.

20. A reason given by the trial court for denying the Tribe’s motion for placement is its finding that the children would be eligible for membership in the Cherokee tribe. The Court held: The Children are members of the Puyallup Tribe. But for their membership in the Puyallup Tribe, the children would be eligible for membership in the Cherokee Tribe. The sibling who continues to reside with the children in the foster home is a member of the Cherokee Tribe. The foster home has been approved by the Cherokee Tribe. The Puyallup Tribe had never informed the Court of any objection to the foster home until filing its Petition to Transfer and Motion for Placement.

The court implies that the children’s connection to the Cherokee Tribe is a valid reason to deny the Puyallup Tribe’s motion for placement. However, the focus of this case has never been whether the Cherokee Tribe’s connection to M.S. and K.S. could suffice to provide them with an understanding of the Puyallup Tribe’s tradition, culture and history as members of that tribe. COCA held it is the Cherokee heritage of M.S. and K.S. which they share with their siblings which the Tribe chooses to ignore. However, evidence was admitted that the Cherokee Nation will not allow its members to be a member of another tribe. M.S. and K.S. are therefore not eligible for membership with the Cherokee Nation, and the foster home could not be considered their tribal home.

21. This Court is not considering the issue of whether error was committed regarding the proper standard of review for “good cause” to deviate from the placement preferences of 25 U.S.C. §1915. However, our decision today calls into question the case In the Matter of B.B.A., 2009 OK CIV APP 80, 224 P.3d 1285, which holds the “abuse of discretion” standard is applicable. We leave that issue for another day.

Winchester, J., concurring in part and dissenting in part: ¶1 I concur with the majority opinion’s finding that §1911(b) does not preclude tribal court jurisdiction when transfer is sought after parental rights are terminated. I dissent to that part of the opinion which finds that COCA erred “by failing to use the ‘clear and convincing’ evidence standard in its review of the trial 1440

court’s finding of ‘good cause’ to deny the Tribe’s request.” ¶2 I believe that the determination of whether good cause exists to retain jurisdiction is within the trial court’s discretion and is best determined on a case-by-case basis after consideration of all the relevant circumstances involved. It is my opinion that the trial judge considered all relevant factors and properly declined to transfer the case to the Puyallup Tribal Court in Washington State. The majority opinion’s use of the higher, clear and convincing standard of proof, which is required in parental termination cases, is inappropriate in this purely jurisdictional matter. ¶3 I agree with the majority that the Tribe’s delay in seeking the motion to transfer was likely justified. However, I believe that the inconvenience of the Tribe’s Washington State location coupled with the fact that the vast majority of witnesses and all relevant evidence reside in Oklahoma justify the trial court’s determination of good cause to retain the case.

Accordingly, I would affirm the ruling of the trial court denying the Tribe’s request to transfer jurisdiction.

2010 OK 26 DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant, v. CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/Appellees.

No. 105,943. June 14, 2010 CORRECTION ORDER The opinion handed down in this appeal on March 16, 2010, and corrected by order filed April 1, 2010, contains harmless misstatements of fact and inadvertent errors that should be corrected.

The opinion shall be corrected as follows: 1. In the first sentence of ¶0, delete the following words and the comma (,) thereafter:

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After recovering for her husband’s workrelated death under the Workers’ Compensation Act (Compensation Act), 85 O.S.2001, et. seq.

Capitalize the word “the” before the words “plaintiff/appellant.”

2. In the first sentence of ¶4, delete the following words and the comma (,) thereafter: After recovering workers’ compensation benefits.

3. At ¶4, footnote 5, delete the following sentences: Furthermore, Price has previously recovered in workers’ compensation. An employee who has two remedies for the same injury and has prosecuted one of them to conclusion is barred from resort to the other remedy. This rule is applicable to compensation claimants who press a tort remedy.

Before the last sentence in footnote 5, insert the following sentence: By this, we are not foreclosing application of the dual persona doctrine to Howard and Olsen in piloting the plane if, on remand, it is determined that they were Price’s employer.

4. In the first sentence of ¶13, delete the following words and the comma (,) thereafter: Having paid death benefits under the Workers’ Compensation Act. 5. In the fourth sentence of ¶14, delete the following words: and the slipper tanks.

6. In the first sentence of ¶15, delete the last word, the name “Olsen” and the comma (,) preceding Olsen leaving the period(.).

7. In ¶18, delete the word PILOT both times it is used and insert the word OWNER in lieu of the word PILOT in both places.

8. Correct any misspelled name or incorrect name in the multiple citations to Parret v.

UNICCO Service Co., 2005 OK 54, 127 P.3d 572.

9. In footnote 20, correct the citation for Oklahoma Gas & Elec. Co. v. Oliphant to read 1935 OK 1225, ¶0, 45 P.2d 1077.

10. In footnote 26, correct the citation for Municipal Paving Co. v. Herring to read 1915 OK 1115, 150 P. 1067.

The official publication of the opinion handed down in this appeal on March 16, 2010, and corrected by order filed April 1, 2010, shall include the corrections ordered herein. In all other respects, our opinion herein shall remain unaffected.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 14th day of June, 2010. /s/ Steven W. Taylor VICE CHIEF JUSTICE ALL JUSTICES CONCUR.

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Vol. 81 — No. 17 — 6/19/2010

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Court of Criminal Appeals Opinions 2010 OK CR 12 KENDRICK ANTONIO SIMPSON, Appellant v. STATE OF OKLAHOMA, Appellee Case No. D-2007-1055 June 14, 2010 ORDER GRANTING REHEARING BUT DENYING RECALL OF THE MANDATE ¶1 Appellant filed a Petition for Rehearing and Motion to Recall the Mandate in the abovestyled appeal on March 18, 2010. He requests reconsideration of this Court’s decision affirming his conviction for First Degree Murder and sentence of death. See Simpson v. State, 2010 OK CR 6, ___P.3d___ (March 5, 2010). ¶2 A Petition for Rehearing shall not be filed as a matter of course, but only for two reasons:

to Appellant. See Neill v. Gibson, 278 F.3d 1044, 1054-56 (10th Cir. 2001)(to prevail on a claim of ineffective assistance of counsel for failing to life qualify the jury, an appellant must show “there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052.) ¶4 While this issue was properly raised on direct appeal, it is not decisive of the case and does not require relief. The Petition for Rehearing is GRANTED. The Motion to Recall the Mandate is, however, DENIED. ¶5 IT IS SO ORDERED. ¶6 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 14th day of June, 2010. /s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

1. Some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or

/s/ Arlene Johnson ARLENE JOHNSON, Vice Presiding Judge

2. The decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

Rule 3.14(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010).

/s/ David B. Lewis Concur in Result

¶3 In seeking rehearing, Appellant claims that this Court’s decision overlooked a question decisive of the case and duly submitted by appellate counsel. In fact, the opinion does not address Appellant’s claim that trial counsel was ineffective for failing to voir dire the prospective jurors about whether they believed that the death penalty should automatically be imposed upon conviction for first degree murder, as counsel was entitled to do under Morgan v. Illinois, 504 U.S. 719, 735-36, 112 S.Ct. 2222, 2233, 119 L.Ed.2d 492 (1992). To succeed on this claim, Appellant must establish both that trial counsel’s performance was deficient and his defense was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find that even if trial counsel’s performance was deficient for failing to “life qualify” the jury, there has been no showing of any resulting prejudice

DAVID B. LEWIS, Judge

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ATTEST: Michael Richie Clerk 2010 OK CR 11 MICHAEL LEON WILLIAMS, Appellant vs- STATE OF OKLAHOMA, Appellee Case No. C-2009-169. June 11, 2010 SUMMARY OPINION DISMISSING APPEAL LUMPKIN, JUDGE: ¶1 On October 10, 1978, Petitioner Michael Leon Williams filled out a “Petition to Enter a Plea of Guilty” intending to plead guilty to the crime of Injuring a Minor Child (21 O.S.Supp.1977, § 843) in the District Court of

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Kay County, Case No. CRF-1978-124. According to that document, the State had offered Petitioner a five year sentence for the crime, which had a ten year maximum sentence. The Honorable Leslie D. Page, Special Judge, accepted the plea and found Petitioner guilty as charged. Sentencing was set for January 9, 1979, upon completion of a pre-sentence investigation report. Petitioner did not appear for sentencing as scheduled. He apparently left the state and was not located by local authorities until December, 2008, some thirty (30) years later. ¶2 Petitioner was transferred from a county jail in Illinois to Oklahoma and a new sentencing hearing was set for January 15, 2009. The State withdrew its original offer of a five year sentence. Petitioner filed a Motion to Withdraw Plea claiming in part that the State had withdrawn its five year offer, that the guilty plea form was incomplete and that the plea was not knowingly and voluntarily entered. At the conclusion of the motion hearing, the trial court found the plea was properly entered and denied the motion to withdraw. It is that denial which is the subject of this appeal. ¶3 Upon review of the appeal documents, this Court ordered a response from the Attorney General due to “several issues which appear to have merit.” In its response brief, the State argued that Petitioner had abandoned or forfeited his right to the five year sentence when he left the State before he could be sentenced and that he should not be rewarded thirty years later with the same recommendation. Finding the State raised a viable issue of abandonment and to aid in our determination whether dismissal of Petitioner’s appeal is an appropriate appellate court sanction, we remanded the case to the District Court for an evidentiary hearing. The District Court was ordered to make findings of fact and conclusions of law regarding whether the State would be prejudiced in locating witnesses and presenting evidence at a trial if the appeal is successful, or if the prolonged absence and misconduct at the district court level might somehow make meaningful appeal impossible or otherwise disrupt the appellate process so that an appellate sanction might reasonably be imposed. ¶4 In its timely filed Findings of Fact and Conclusions of Law, the District Court found, based upon the stipulation of the parties, that the State would be prejudiced to proceed to Vol. 81 — No. 17 — 6/19/2010

trial in the matter and “that from the standpoint of contract law, the defendant abandoned the plea agreement with the State by absconding from the jurisdiction for three decades.”

The District Court also found that by absconding from the jurisdiction the defendant waived his right to the benefit of the original plea agreement. The parties in this case were given twenty (20) days from the filing of the transcript and order of the District Court to file supplemental briefs on the issue of whether the record supports the appellate sanction of dismissal of the appeal. Having received supplemental briefs from both Petitioner and the State, we now decide this appeal. ¶5 “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” OrtegaRodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 1203, 122 L.Ed.2d 581 (1993). See also Prock v. State, 1977 OK CR 280, ¶ 2, 569 P.2d 473, 474 (“the act of escape ‘disentitles the defendant to call upon the resources of the Court for determination of his claims’”). However, in this case Petitioner fled the jurisdiction of the District Court but was recaptured prior to sentencing and the invocation of this Court’s appellate jurisdiction. Whether this is sufficient cause for dismissal of an appeal has not been previously addressed by this Court. ¶6 The United States Supreme Court addressed just such an issue in Ortega- Rodriguez. There, the Supreme Court noted that “while dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system.” 507 U.S. at 249, 113 S.Ct. at 1208. In determining when dismissal was appropriate, the Supreme Court noted that a “long escape, even if ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal.” Id. The Supreme Court further stated “a defendant’s misconduct at the district court level might somehow make ‘meaningful appeal impossible,’ or otherwise disrupt the appellate process so that an appellate sanction is reasonably imposed.” Id., 507 U.S. at 250, 113 S.Ct. at 1208-1209.

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¶7 In the present case, the parties stipulated before the District Court that if the appeal was successful and the case sent back for trial, the State would be prejudiced. The record of the evidentiary hearing shows that of approximately four witnesses located, only two had any independent recollection of the events surrounding the commission of the offense. Petitioner’s flight delayed the filing of his appeal by approximately thirty years. That duration of time presents a “significant interference with the operation of [the] appellate process” and under the record before us, makes a “meaningful appeal impossible.” Id., 507 U.S. at 250, 113 S.Ct. at 1209. ¶8 Based upon the foregoing, we find that in light of Petitioner’s thirty year fugitive status, prior to the invocation of this Court’s appellate jurisdiction, dismissal of his appeal is appropriate.

DECISION ¶9 Accordingly, this appeal is DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF KAY COUNTY THE HONORABLE LESLIE D. PAGE, ASSOCIATE DISTRICT JUDGE APPEARANCES IN DISTRICT COURT Todd Burlie, P.O. Box 1897, Ponca City, OK 74602 Mark Hoover, P.O. Box 926, Norman, OK 73030, Counsel for Petitioner Mark Gibson, District Attorney, Tara Portillo, Assistant District Attorney, Kay County Courthouse, Newkirk, OK 74647, Counsel for the State APPEARANCES ON APPEAL Mark Hoover, P.O. Box 926, Norman, OK 73030, Counsel for Petitioner W.A. Drew Edmondson, Attorney General of Oklahoma, Donald Self, Assistant Attorney General, 313 N.,E. 21st St., Oklahoma City, OK 73105, Counsel for the State OPINION BY: LUMPKIN, J. C. JOHNSON, P.J.: CONCUR A. JOHNSON, V.P.J.: CONCUR 1444

LEWIS, J.: CONCUR IN PART/DISSENT IN PART LEWIS, J.: CONCURRING IN PART AND DISSENTING IN PART. ¶1 I find much in the majority opinion with which I agree in principle. We differ in the application of those principles to the problem before us. Petitioner absconded after his guilty plea and thus, it is more than fair to conclude that he waived the right to interpose any challenge to the conviction of a felony based on that plea.1 However, in a negotiated plea, the sentence ultimately imposed can affect the voluntariness of the plea which supports the conviction. Where the district court decides to impose a sentence other than the agreed sentence for which the Petitioner has exchanged his right to trial by jury, the plea induced is to that extent not knowing and voluntary, and the district court should grant a defendant’s motion to withdraw the plea. Morgan v. State, 33 Okl. Cr. 277, 281-82, 243 P. 993, 994-95 (1926) (finding district court should grant motion to withdraw a guilty plea induced by assurances from the court that defendant would receive a particular sentence, which the district court later refused to impose). Where a district court abuses its discretion in the matter, this Court will ordinarily grant the writ of certiorari, vacate the conviction obtained as a result of the guilty plea, and remand the case for further proceedings. ¶2 The record shows that the district court sentenced Petitioner to a term of imprisonment twice the agreed sentence that induced his plea, which would typically require this Court to issue the writ. However, the Court correctly finds that vacating the conviction here would miscarry justice, because Petitioner’s thirty year flight has prejudiced the State’s ability to try him. Although Petitioner’s plea was clearly induced by the promise of a five year sentence that he ultimately did not receive, the Court concludes Petitioner’s misconduct has forfeited his right to appeal. ¶3 I would not go so far. It is not a mere guilty plea or a district court’s acceptance of that plea, but a “conviction” in the district court which triggers a petitioner’s right to appeal. Burnham v. State, 2002 OK CR 6, ¶ 6, 43 P.3d 387, 389. A conviction upon a plea of guilty occurs when the final judgment and sentence is pronounced in district court. Turner v.

State, 1975 OK CR 207, ¶ 7, 541 P.2d 1355, 1356.2

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Petitioner’s “conviction” occurred when he was brought before the district court in January, 2009, and finally sentenced upon his guilty plea. He timely sought to withdraw his plea, and sought appellate review by timely filing a petition for the writ of certiorari. Petitioner thus invoked the Court’s appellate jurisdiction, including our jurisdiction to “reverse, affirm or modify the judgment or sentence appealed from, and . . . if necessary or proper, order a new trial or resentencing.” 22 O.S.2001, § 1066. ¶4 I agree that Petitioner has forfeited the challenge to his guilty plea and the district court’s earlier finding of guilt, or more specifically, has forfeited the usual remedy for an otherwise meritorious challenge to his plea, because his misconduct has prejudiced the State’s ability to try him. However, because Petitioner’s plea was plainly induced by the earlier agreement with the State for a five year sentence of imprisonment, and his plea cannot now be withdrawn without unfair prejudice to the State, I would affirm Petitioner’s conviction and modify the sentence to five years imprisonment. I therefore respectfully dissent from the sanction of outright dismissal of Petitioner’s appeal.

1. Blackstone tells us that one who absconded after conviction for a felony, but before the judgment, could “be prosecuted even to outlawry,” which anciently meant the felon was said to have caput lupinum, or the “wolf’s head,” and consequently “might be knocked on the head like a wolf, by anyone that should meet him.” 4 William Blackstone, Commentaries on the Laws of England 315, 368 (1st ed. 1769). This harsh consequence of absconding had been discarded long before Blackstone’s time, for when he wrote even the outlawed felon was “still under the protection of the law,” and a judgment of outlawry for felony was “frequently reversed by writ of error . . . upon which reversal the party accused is admitted to plead to, and defend himself against, the indictment.” Id. at 315.

2. In Gilmore v. State, 3 Okl.Cr. 639, 640, 108 P. 416, 417 (1910), Judge Doyle, speaking for the Court, said: In its ordinary sense the term ‘conviction’ is used to designate that particular stage of a criminal prosecution, when a plea of guilty is entered in open court, or a verdict of guilty is returned by a jury. But in a strict legal sense it denotes the final judgment of the court. Chief Justice Marshall defines ‘conviction’, as ‘a technical term applicable to judgment in a criminal prosecution.’

A conviction within the meaning of the Constitution is an adjudication that the accused is guilty. It imports the final consummation of the prosecution, from the complaint to the judgment of the court by sentence. (emphasis added).

2010 OK CR 10 CLARENCE ROZELL GOODE, JR., Appellant v. STATE OF OKLAHOMA, Appellee No. D-2008-43. June 09, 2010 OPINION LEWIS, JUDGE: Vol. 81 — No. 17 — 6/19/2010

¶1 Clarence Rozell Goode, Jr., was charged, conjointly with Ronald Dwayne Thompson and Kenneth Dominick Johnson, with three counts of first degree murder, with alternative theories of malice or felony murder, in violation of 21 O.S.Supp.2004, § 701.7(A) and (B), and one count of first degree burglary, in violation of 21 O.S. 2001, § 1431, in Tulsa County District Court case number CF-2005-3904.1 The State filed a Bill of Particulars alleging two aggravating circumstances for each of the three murder offenses: (1) the defendant knowingly created a great risk of death to more than one person; and (2) there exists a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society for each of the three murder offenses. 21 O.S.2001, § 701.12 (2) and (7). ¶2 Goode’s case was severed from his codefendants, and his trial commenced on December 3, 2007, before the Honorable Tom C. Gillert, District Judge. The jury found Goode guilty on all four counts and assessed punishment at death on each of the three first degree murder convictions, after finding that both of the aggravating circumstances existed in each murder. The jury assessed twenty (20) years imprisonment and a $10,000 fine on the first degree burglary count. Judge Gillert formally sentenced Goode in accordance with the jury verdict on January 7, 2008. Thereafter, Goode perfected his appeal to this Court.2 I. FACTS ¶3 Goode, Johnson, and Thompson entered the Owasso, Oklahoma home of Mitch Thompson and Tara Burchett-Thompson during the overnight hours of August 25-26, 2005. Tara’s ten-year-old daughter, Kayla, happened to be staying with her mother on this particular night, sleeping on a pallet next to the Thompsons’ bed.3 All three intruders were armed with handguns. The intruders entered the bedroom and killed the victims by firing several shots into each of the victims’ bodies. ¶4 The State’s theory of motive was that Ronald “Bunny” Thompson and Goode had been in a dispute with Mitch Thompson and his friend J.R. Hoffman for a few months. Hoffman was staying with Mitch Thompson and his family. Ronald Thompson, who was Mitch’s cousin, was living with Mitch’s sister, Michelle Chastain. Michelle Chastain was also one of Goode’s girlfriends, and Goode spend a great deal of time at her house.

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¶5 This dispute escalated in July, 2005, when Hoffman borrowed a car from Michelle Chastain. Hoffman was to use the car to pickup some Xanax pills for Goode; however, Hoffman wrecked the car and was arrested for driving under the influence. Goode recovered the drugs from the car, but Hoffman refused to pay for the damages to the car. Toward the end of July, a month before these murders, Hoffman and Ronald Thompson got into a fight over their financial disputes. This fight ended and the parties separated for a short time. ¶6 Soon after, Mitch Thompson and Hoffman came back to Michelle’s house armed with a baseball bat. Goode and Ronald Thompson were at the house. Mitch Thompson beat Ronald with the baseball bat. Goode showed a pistol and made everyone go outside. He turned the gun over to someone else and started a fistfight with Hoffman. ¶7 After this, Mitch called the Oklahoma Department of Human Services (DHS), child welfare division, and reported that Michelle, a single mother, had people living at the house who were selling drugs. DHS started a fraud investigation and as a result, they scheduled a home inspection. Mitch also called Michelle’s employer and told them she was involved in drugs, and she was fired due to these reports.

Evidence was introduced that Michelle threatened to kill her brother, because of his actions, but, at trial, she denied making the threats.

Mitch also tried to get Goode fired from his job at Brookhaven Hospital by reporting that he was selling drugs. ¶8 On the evening before the murders, Goode picked up Ronald Thompson at his place of employment at about 10:00 p.m. Thompson testified that Goode arrived in a car driven by Kenneth “Fu Fu” Johnson. As they drove away, Goode told Ronald Thompson that they had business to take care of, and he handed Thompson a .22 caliber revolver and some latex gloves. Thompson said that Goode had a .357 caliber handgun and Johnson had a nine-millimeter handgun. ¶9 They drove to Mitch Thompson’s house, got out of the car, and entered the house through the open overhead garage door. Ronald said he kicked in the door from the garage into the house, because they told him to. Ronald said he thought they were there to scare Mitch.

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¶10 According to Ronald, he went one way in the house and Goode and Johnson went the other. Ronald heard gunshots, so he went to the room occupied by Goode and Johnson. He said Johnson put a gun to his head and told him that he needed to put in some work or he was next, meaning he needed to fire some shots or be shot. Ronald said he fired several shots into the wall of this room. They then left and dropped off the guns with another associate, Damos “Peanut” Joseph. ¶11 At about 4:15 a.m., Goode arrived at Michelle Chastain’s house. They argued and Goode told her that he just shot her “fucking brother . . . .” Goode introduced her to Johnson and said he was his cousin. She saw Ronald’s Wal-Mart vest in Johnson’s car, but she did not see Ronald Thompson. ¶12 Michelle received formal notification of her brother’s death just after noon that day.

Her father was also notified of the death of his son and suffered a heart attack after hearing the news. Michelle was at the hospital with her father when she first talked to detectives, but she did not volunteer any information about her knowledge of the shooting. During that day, Goode called Michelle Chastain asking if she had talked to the police and he threatened her and her family with harm, if she “made him nervous” by talking to the police. ¶13 Then in the early morning hours of August 27, at about 1:00 a.m., Goode and Michelle Chastain were at Denny’s Restaurant.

Chastain testified that Goode gave her the details of the killing by saying that Ronald Thompson kicked in the door. He said that Ronald was to go into the spare bedroom and kill Hoffman. Instead, Ronald followed Goode and Johnson into the main bedroom and started shooting the child, Kayla Burchett. Goode said he and Johnson had no choice but to shoot as well. ¶14 Goode told her that after the initial shots were fired, he heard some noise, so he turned the lights on. He saw Mitch on the floor next to the bed and told Mitch to look him in the face.

Goode told Mitch that he should have “never snitched on me” and said “die like a bitch.”

Then Goode shot Mitch again. Goode told her that Johnson shot Tara Burchett-Thompson, and they would have shot Ronald Thompson, but he took off running. ¶15 Kayla was shot five times, once in the head, once in the back and three times in the

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hip. One of the hip wounds was noticeably smaller than the others, possibly coming from a .22 caliber bullet. Tara had ten gunshot wounds which could have been caused by less than ten shots, because of the paths of the bullets through different parts of the body. Mitch had been shot twice, once in the upper back and once in the face. ¶16 A total of seven .357 Sig4 casings and seven nine-millimeter casings were found in the bedroom. A .22 caliber projectile was found in a cabinet drawer. This cabinet was near small holes in the wall. A search of Damos Joseph’s house resulted in the recovery of two spent .22 magnum shells and a .22 magnum cartridge. These cartridges were consistent with the .22 caliber projectile found at the murder scene. ¶17 Goode’s mother and his brother’s fiancé testified that Goode was at the mother’s home the evening of the murders. The fiancé, Ruby Gilyard, said Goode left for a period of time, but returned at 11:00 p.m. She could not say whether he stayed the night; however, she did see him the next morning when she woke up.

Mrs. Goode testified that he spent the night, because they were traveling to visit Goode’s incarcerated brother the next day.

II. FIRST STAGE ISSUES ¶18 Goode begins his propositions of error by claiming, in proposition one, that the trial court erred when it allowed the State to introduce, over objection, witness Michelle Chastain’s video-taped statement made to Owasso Police Detective Mike Denton. Goode objected to the introduction of this evidence at trial on the grounds that it was not admissible as a prior consistent statement; the introduction of the tape violated the confrontation clause;5 the entire tape was not admissible based on the rule of completeness; and the tape, generally, contained irrelevant prejudicial material that should not be viewed by the jury. The trial court ruled that the entire tape would be admissible under the rule of completeness, citing Utt v. State, 1979 OK CR 37, 595 P.2d 448. ¶19 Generally, we would review the trial court’s decision for an abuse of discretion. Williams v. State, 2008 OK CR 19, ¶ 36, 188 P.3d 208, 218. But, additional facts show that deference to the trial court’s ruling may be impossible. In this case, the trial court admitted that it did not review the tape. The trial court stated, Vol. 81 — No. 17 — 6/19/2010

I haven’t had a chance to review it, but since the State knows that if they’re wrong, this case will be reversed and is that confident that there is nothing in that statement that is prejudicial, knowing that, I’ll go ahead and admit it over your objection. ¶20 This statement alone shows that the trial court failed to exercise its discretion, because the trial court abdicates its gate-keeping responsibility by relying on the representations of the parties.6 Even though the trial court failed to exercise proper judicial discretion, fortunately, its decision that the tape was admissible was correct. ¶21 Uniquely, the tape was presented, not during the examination of Chastain, but during the defense’s case-in-chief examination of Detective Denton. While Goode’s attorney examined Chastain about the inconsistencies between her testimony and her statements in this taped interview, counsel did not seek to introduce the tape during Chastain’s testimony. ¶22 Counsel’s cross-examination of Chastain and her inconsistent statements on this tape centered on the location where Chastain remembered that Goode relayed details of this crime; whether it was at the Denny’s restaurant, as she had testified, or whether the details were revealed by Goode at her house and on the phone, as she had told Denton in the taped interview. At trial, Chastain insisted it was at Denny’s and not the latter. ¶23 Counsel then asked if she remembered Goode mentioning that he believed that a “bum” at the restaurant was actually an undercover police officer. Chastain did remember that conversation. Chastain admitted that Goode was very secretive, so counsel asked her why he would share all of the details at the restaurant near someone he thought was an undercover police officer? She again insisted that the details were revealed at Denny’s.

Counsel continued along these lines, but Chastain denied making any inconsistent statements to police. ¶24 During the defense case, Goode’s attorney called Denton to testify. Counsel played portions of the recorded statement when Denton could not remember the contents of the conversation he had with Chastain. Denton’s testimony and the recording was essentially used to impeach Chastain’s testimony, which is proper pursuant to 12 O.S.2001, § 2613(B).7

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During the examination, counsel asked Denton about Chastain’s statements regarding where Goode confided in her and the “homeless person” Goode believed to be an undercover police officer. The record does not reveal how much of the tape was played for the jury. ¶25 Afterwards, during the State’s crossexamination of Denton, the State requested that the entire recordings of two Chastain interviews be introduced as evidence.8 Defense counsel objected, stating that the tapes were not admissible as prior consistent statements.

The trial court inquired whether the recordings were admissible under the rule of completeness. Defense counsel then insisted that he was using the tape to refresh the officer’s memory of the interview; however, the trial court disputed that fact and noted that defense counsel played the recording for the jury and asked Denton to confirm the contents. ¶26 The trial court reserved ruling on the admissibility of the tape, because it wanted to review the rule of completeness. As a final argument, defense counsel countered that there was irrelevant prejudicial information contained on the tape, but counsel was not specific.

The prosecution responded that it did not recall any historical information that might be prejudicial. ¶27 At the conclusion of the first stage of trial, the trial court took up the admissibility of the recording of Chastain’s interviews. The trial court heard argument, ruled that the recording of Denton’s interview of Chastain was admissible pursuant to Utt and the rule of completeness. The tape was submitted to the jury.9 ¶28 In Utt, this Court held admission of the entire videotape containing an accomplice’s prior consistent statement was proper where the defense had admitted portions of the tape as inconsistent. Id., 1979 OK CR 37, ¶ 5, 595 P.2d at 450. Statutory codification of the rule of completeness cited in Utt, 12 O.S.Supp.2002, § 2107, provides that when a party has introduced a portion of a record, “the adverse party may require introduction at that time of any other part . . . that should in fairness should be considered contemporaneously with it.” ¶29 Our holding in Utt clearly supports the admission of the tape. The reasoning in Utt applies to the present case, as well.

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A party cannot offer in evidence a part of a document, conversation, or transcript of a witness’ testimony for the purpose of impeaching the witness, and then complain that the court permits the remainder of such document, conversation, or transcript to be introduced to rebut the apparent impeachment. Counsel cannot be permitted, for the purpose of impeaching a witness, to introduce extracts of the former testimony of such witness, and then be heard to complain that the whole of such testimony was introduced, and the whole truth given to the jury. . . .

Utt, 1979 OK CR 37, ¶ 5, 595 P.2d at 450, quoting Huntley v. Territory, 1898 OK 62, ¶ 12, 7 Okl. 60, 54 P. 314. Here, Goode cannot complain that the entire taped statement was given to the jury after he introduced portions favorable to his case. ¶30 Obviously, Goode’s theory at trial was that Chastain was fabricating this whole story, because she made conflicting statements about where Goode told her the story. The tape was certainly admissible so that the jury could judge whether comparison between the story told at trial and story told during the police interview indicated that Chastain was either a credible or unbelievable witness. ¶31 Although admissible, certain evidence may be excluded if its relevance is substantially outweighed by certain dangers. Because trial counsel failed to adequately identify, for the trial court, material in the tape which he claims was objectionable, our review of this portion of the proposition is for plain error only. Williams v. State, 2008 OK CR 19, ¶ 71, 188 P.3d 208, 223.

We find no plain error occurred, because the relevance of this tape was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or any other danger.

See 12 O.S.Supp.2003, § 2403.10 Furthermore, we find that the admission of this tape did not improperly bolster Chastain’s testimony.11 ¶32 Finally, we address Goode’s confrontation clause argument. Goode bases this argument, that the introduction of the recording violates the confrontation clause, on his reading of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, language in Crawford supports an opposite conclusion.

[W]hen the declarant appears for crossexamination at trial, the Confrontation

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Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, [90 S.Ct. 1930, 1937, 26 L.Ed.2d 489] (1970). It is therefore irrelevant that the reliability of some out-of-court statements “cannot be replicated, even if the declarant testifies to the same matters in court.” Post, at 1377 (quoting United States v. Inadi, 475 U.S. 387, 395, [106 S.Ct. 1121, 1126, 89 L.Ed.2d 390] (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).)

Crawford, 541 U.S. at 59, fn.9, 124 S.Ct. at 1369, fn.9 [parallel cites added]. Here, the declarant, Chastain, testified in the State’s case in chief and she was extensively cross examined by defense counsel. There was no violation of the confrontation clause here. ¶33 Goode’s next proposition relating to first stage evidence is presented in proposition two, where he attacks the State’s use of witness Fred Clemons’ testimony and the use of Clemons’ prior inconsistent statements as evidence of guilt. At trial, Goode objected to Clemons’ testimony in a pretrial motion to suppress alleging that Clemons obtained statements from Goode as an agent of the State, thus violating his 6th Amendment right to counsel. This pretrial motion was overruled. Then, just before Clemons was scheduled to testify, Goode objected to his testimony, arguing that the only reason the State was placing Clemons on the stand was to introduce prior statements to police, which they knew would be inconsistent with his testimony. He argued that their intent was to use Clemons’ inconsistent statements as substantive evidence against Goode. Now, on appeal, Goode complains that Clemons’ testimony was not relevant, was lacking in credibility, and was a pretext for introducing prior inconsistent statements as substantive evidence of guilt. ¶34 We review this claim under an abuse of discretion standard. An abuse of discretion has been defined as “any unreasonable, unconscionable and arbitrary action taken without proper consideration of the facts and law pertaining to the matter submitted.” Williams, 2008 OK CR 19, ¶ 27, 188 P.3d at 217 (citations omitted).

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¶35 Goode met Fred Clemons in the Tulsa County Jail, where they were incarcerated in the same “pod” for a couple of days. According to Clemons’ testimony, Goode told him he was accused of the triple homicide in Owasso.

Goode told Clemons that Chastain was trying to set him up, and he would like to have her killed. Clemons asked him “How much?” and Goode said “Ten thousand.” Goode then asked if Clemons knew anyone that would do it.

Clemons told Goode that he would get back with him. ¶36 Clemons further testified that Goode told him that “They said it was three people involved in the shootings.” He said a little girl got killed with a .22. He told Clemons that a “clip had been unloaded” on the lady; either a nine-millimeter or a .45 caliber pistol. Clemons also testified that Goode told him that a .22, a nine-millimeter and a .357 were used in the murders. ¶37 After this conversation, Clemons recalled that he contacted a jailer, and later an Owasso detective interviewed him regarding his knowledge of the crime. At this point in Clemons’ testimony his memory became fuzzy about what Goode told him and what he told police. ¶38 Clemons did recount that he told the police that Goode said that he had the .357 caliber handgun. He testified that he told police that Thompson had the .22 and Goode’s cousin had the nine. However at trial, Clemons recanted and said that that Goode never actually told him these facts and testified that Goode told him he was not at the shootings. ¶39 Clemons testified that Goode believed that the murder occurred because Mitch caused DHS to take Chastain’s baby away from her and because Mitch had beaten Thompson until Thompson became unconscious. According to Clemons, Goode said Thompson shot the child with the .22. ¶40 On cross examination, Clemons again testified that Goode told him he was with his mother and was not present when the shooting took place. He said that Goode never admitted to any involvement in the murders. He testified that he was willing to tell police anything so he could get relief on his cases in Texas. He also testified that he had testified in a previous case in 1995 and was able to have charges against him dismissed. Clemons admitted that he was making assumptions when he talked to

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the police and he basically lied to the police, but he was telling the truth at trial. ¶41 On redirect Clemons testified that Goode told him details about the murders of which he was unaware, such as, there were three guns used: a .22, a nine-millimeter, and a .357. He claimed that he told police that Goode said he was not present when the murders occurred, but he could not find in the transcript of the interviews where that occurred. ¶42 Obviously, Goode had information about this case and was willing to share this information with Clemons. A review of Clemons’ testimony reveals that his testimony was relevant on this account. Even Goode admits that evidence that a defendant has relayed details of a crime, which only the perpetrator could have known, is relevant. See Dodd v. State, 2004 OK CR 31, ¶ 29, 100 P.3d 1017, 1030 (holding defendant’s proprietary knowledge regarding details of a crime provided probable cause for arrest).

Evidence showing a defendant’s knowledge of the details of a crime, which have not been released to the public, is relevant to show participation in the crime. See 12 O.S.2001, § 2401 (defining relevant evidence). Goode complains, however, that the way Clemons was questioned made it seem as if Goode had confessed to the crime. ¶43 We read the testimony differently. Clemons repeatedly testified that Goode told him that he was not involved in the murders, his girlfriend was trying to set him up for the murders, and Goode never told him that he was at the crime scene. Furthermore, the jury’s use of Clemons’ prior statements, inconsistent with this testimony, was properly channeled by an instruction which told them that they could only use Clemons’ prior inconsistent statements as impeachment and not as substantive proof of guilt. In conclusion, we find that the trial court did not abuse its discretion in permitting this testimony. ¶44 Goode next attacks, in proposition three, the admission of certain evidence which, he claims, was irrelevant or for which the relevance was substantially outweighed by the dangers outlined in 12 O.S.2001, § 2403. The admission of evidence is left to the sound discretion of the trial court, which we will not disturb absent an abuse of that discretion.

Where no objection was raised, we review for plain error only.

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¶45 He first complains about the admission of an audio tape of the 911 call made by Brenda Smalygo upon discovering the bodies of her daughter and granddaughter at the crime scene.12 Defense counsel objected to the introduction of this tape on relevance and prejudice grounds. After the playing of the tape, counsel asked for a mistrial, because of the prejudicial nature of the tape and Smalygo’s emotional response to the tape. The motion for mistrial was denied. ¶46 Now, on appeal, Goode claims that the tape was irrelevant, and, even if minimally relevant, its relevance was substantially outweighed by the danger of unfair prejudice.13 The State, in opposition, cites Williams v. State, 2008 OK CR 19, 188 P.3d 208, as support for the admission of 911 tapes. In Williams, however, there was no objection to the introduction of the tapes and the tapes were recordings of victims and witnesses who observed or heard evidence of a crime, just after its occurrence.

We held that, while the tapes may have been cumulative to the witnesses’ testimony, the cumulative nature did not substantially outweigh the relevance, thus there was no plain error. Williams, 2008 OK CR 19, ¶ 73, 188 P.3d at 223-244. The State argues that, if any error occurred in the admission of the tapes, the error was harmless. ¶47 Unlike Williams, we have a contemporaneous objection in the present case; therefore, we review for an abuse of discretion. The 911 tape presented here contains the conversation between an extremely emotional Smalygo and the emergency services dispatcher. In the conversation, Smalygo tells the dispatcher that her “baby” is dead and ice cold. The dispatcher believes that the victim is a baby and tries to get Smalygo to bring the “baby” to the phone.

Finally, the dispatcher understands that the “baby” is ten years old and advises Smalygo to attempt to do CPR on the victim. ¶48 We find no relevance to the conversation in this tape other than Smalygo’s statement that her granddaughter is dead. This fact was undisputed and was clearly established by other evidence in this case. While the time of death might have been an issue, this conversation did nothing to establish a time of death.

Because there was no relevance in this 911 tape, we find that the trial court abused its discretion in allowing the introduction of this tape.

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¶49 Although we find error, Goode must also show that the introduction of the tape was prejudicial.14 The introduction of irrelevant evidence does not always require relief, as was the case in Walker v. State, 1994 OK CR 66, ¶¶ 27-28, 887 P.2d 301, 311. In Walker, this Court held that a 911 tape of a victim calling and saying “he’s killing me” and “I’m dead” was irrelevant and prejudicial because it did not name the defendant nor did it prove malice aforethought. Due to overwhelming evidence of guilt in Walker, the introduction was held harmless. Id. ¶50 Likewise, in this case, the jury had already heard from Smalygo whose emotional testimony described how she found the body of her dead granddaughter, Kayla, and how she attempted to revive her granddaughter by following the directions of the 911 operator.

They learned that Kayla was living with Smalygo, but was at her mother’s house that night, because she begged Smalygo to allow her to spend the night there. Although the tape contained a highly emotional Smalygo talking to a 911 operator, we cannot conclude that the contents of the tape prejudiced Goode in any material way. Therefore, the introduction of this tape was harmless. ¶51 Goode next complains about the prosecution’s references to the movie Scarface and implications that Goode was emulating the gangster portrayed by Al Pacino in that movie.

The prosecution first alluded to this movie in opening statement, without objection, then during the direct testimony of Michelle Chastain, the prosecution attempted to elicited testimony referencing Scarface, but he could not ask a question without leading, so the trial court sustained the defense’s objections. During redirect, Chastain testified that Goode told her that he was like Scarface when he killed Mitch Thompson, because he wanted Mitch to look him in the eye. There was no objection to this testimony. Evidence was also introduced that Goode had a notebook in his car with a picture of Scarface taped to the front,15 and he was wearing a Scarface t-shirt when he was first questioned by police. Counsel objected to testimony about the Scarface t-shirt and the introduction of the notebook on relevance grounds. ¶52 Then during closing argument, the prosecution made several comments stating that Goode was trying to be the modern day Scarface.

There was no objection to the closing argument.

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¶53 The theory of the State’s case was that Goode envisioned himself as a modern day Scarface, who took care of his own business with force. The statements by Goode to Chastain and his possession of Scarface fan paraphernalia provided a basis for this theory. We find that this evidence was relevant to show Goode’s motive for these crimes. ¶54 Next, Goode complains about evidence of firearms which were not relevant, because they were not connected to this case. The handguns were found contemporaneously with the arrest of co-defendant Johnson who was arrested outside the home of Tammy Hamilton. A nine-millimeter handgun was found on the seat next to him when he was arrested and a .357 caliber revolver was found in a car owned

by Ms. Hamilton, which was parked outside the home. Evidence about the .357 revolver was first elicited by defense counsel and the prosecution only mentioned it later to show that it was not used in this crime; therefore, Goode cannot complain about the reference to this pistol. ¶55 Regarding the nine-millimeter pistol found next to Johnson; although a nine-millimeter pistol was used in these homicides, this pistol could not positively be matched to the evidence found at the scene. The prosecution’s theory in this case was that Johnson used a nine-millimeter handgun during the crime.

The nine-millimeter casings found at the scene showed similarities with casings which were test fired from the nine-millimeter pistol found with Johnson in the car. However, the State told the jury that it did not believe that this gun was used in the crime. The relevance of this gun was to establish that Johnson’s caliber of choice was the nine-millimeter. This gun did have some relevance, although slight, and served to corroborate Thompson’s testimony that Johnson used a nine-millimeter during the murder. We find no reversible error in the introduction of this evidence. ¶56 Goode’s next claim of evidentiary error, raised in proposition four, is that the trial court abused its discretion when it allowed introduction of a photograph of the child victim, taken while she was alive, over defense counsel’s objection on relevance grounds. Oklahoma State law allows the introduction of this type of photograph. 12 O.S.Supp.2003, § 2403. This section provides that,

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[I]n a prosecution for any criminal homicide, an appropriate photograph of the victim while alive shall be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive.

In this case the State offered exhibit 17, which was a portrait of Kayla Burchett, the ten-yearold and youngest of the three victims in this case. Along with the statutory authority indicating relevance, a photograph of a victim taken prior to being killed is relevant to proving the defendant killed a live human being and relevant to proving the identity of the victim, whether or not disputed at trial, because the State always has the burden of proving every element of the offense. Glossip v. State, 2007 OK CR 12, ¶¶ 78-79, 157 P.3d 143, 156-57; Coddington v. State, 2006 OK CR 34, ¶¶ 53-57, 142 P.3d 437, 452-53.16 ¶57 Although relevant, like all evidence, the “in life” photograph may be excluded if its relevance is substantially outweighed by the dangers outlined in 12 O.S.2001, § 2403. The trial court was very careful in the use of this photograph. The trial court did not allow the parties to use the photograph in closing argument, nor did he allow the photograph to be taken with the jury during deliberations. The record reflects that the jury only had a brief view of this photograph at the time it was initially admitted. We find that the trial court did not abuse its discretion when it admitted this photograph, thus there is no error here.

III. SECOND STAGE ISSUES ¶58 Goode argues, in proposition seven, that victim impact evidence was improperly admitted during the second stage of trial. Prior to trial, Goode requested that no victim impact evidence be admitted; however, this request was denied. During trial, Goode objected to the statement of Tessa Amaro, because she was not a person authorized by Oklahoma Statutes to give a “victim impact statement” about the impact of the death of her niece, Kayla Burchett. The trial court ruled that Amaro could testify, as a family designee, about the impact of Kayla Burchett’s death, as Kayla’s only immediate family members were killed alongside her. ¶59 The State sponsored three victim impact witnesses, including Amaro, each of these witnesses read a prepared statement at trial. The other witnesses were Jim Burchett, father of 1452

victim Tara Burchett and grandfather of victim Kayla Burchett, and Gwen Davidson, the sister of victim Mitch Thompson. The trial court indicated that Amaro was the designee for victim Kayla Burchett. Amaro was the only person who gave a statement regarding the impact of the death of child-victim Kayla Burchett. ¶60 Now, on appeal, Goode argues that Amaro was not a proper sponsor of victim impact evidence and her testimony did not qualify as victim impact evidence. Goode argues that Amaro, as Kayla Burchett’s aunt, could not give a statement about the impact of the death of Kayla on her. ¶61 This Court has addressed victim impact issues in the past holding that both “victim impact statements” and “victim impact evidence” are admissible in a capital sentencing procedure. This includes a rendition of the “circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion of a recommended sentence.” See 22 O.S.2001, § 984; Dodd, 2004 OK CR 31, ¶ 95, 100 P.3d at 1044. Section 984 reads in part: “Victim impact statements” means information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion of a recommended sentence; ¶62 “Members of the immediate family” means the spouse, a child by birth or adoption, a stepchild, a parent, or a sibling of each victim.

22 O.S.2001, § 984(2). Even though admissible, evidence may be introduced that “is so unduly prejudicial that it renders the trial fundamentally unfair,” thus implicating the Due Process Clause of the Fourteenth Amendment. Lott v.

State, 2004 OK CR 27, ¶ 109, 98 P.3d 318, 346, quoting Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991). ¶63 In Lott, two members of the immediate family testified — the victim’s son and daughter. Another witness, similar to the case at bar, also testified — the victim’s granddaughter who was a “representative.” The granddaughter testified about the impact of the death on the entire family, her father and her aunts and

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uncles. In Williams, 2008 OK CR 19, ¶ 100, 188 P.3d at 227, this Court held that a family member can give victim impact testimony on behalf of several immediate family members, as long as that testimony is otherwise admissible. ¶64 Here, while Amaro testified as a representative, which is proper under our case law, she also testified about the effect of Kayla’s death on her and her own daughter.17 She described the relationship between Kayla and her own daughter as like sisters; however, neither she nor her daughter, meet the definition of “immediate family member.” While some of her testimony concerned the effects on persons who were not immediate family members, other portions of her testimony were relevant to show how the immediate family members’ interaction with others was impacted by the death. The remainder of the testimony gave a brief glimpse into the life of Kayla Thompson and the circumstances surrounding the crime, which was admissible. ¶65 The unusual family dynamic represented in this case presents a situation that is not contemplated by the victim impact statutes. Kayla was being raised primarily by her grandparents who were also Amaro’s parents. Kayla’s only “immediate family members,” her mother and father, were also killed in this crime. While one could possibly conclude that the closeness of Kayla to Amaro was much like that of sisters, Amaro testified that Kayla and her daughter were like sisters, not that she and Kayla were like sisters. Because this type of relationship is not one which is defined as an “immediate family member,” we find that testimony regarding the impact of Kayla’s death on Amaro and her daughter was not proper. ¶66 Although we find that much of Amaro’s testimony describing the impact of the death on her and her daughter was not admissible, we cannot find that this testimony prejudiced Goode in any way. Kayla was only one of three victims in this case. Amaro’s testimony consisted of a prepared statement taking up two pages of transcript. Her testimony, generally, was about the effect of Kayla’s death on the immediate family and the family dynamic, which was admissible. The small portion which was not admissible, in light of the remaining permissible victim impact evidence, did not contribute to the sentence in this case. See Lott, 2004 OK CR 27, ¶ 114, 98 P.3d at 348.

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¶67 Also in this proposition, Goode claims that victim impact evidence, in general, violates the Eighth Amendment and has no place in Oklahoma’s capital sentencing scheme. He argues that victim impact acts as an unauthorized “superaggravator.” We have consistently rejected this argument, and we find no reason to revisit the issue here. Jackson v. State, 2007 OK CR 24, ¶ 26, 163 P.3d 596, 603-04 (and cases cited therein). ¶68 Goode’s next sentencing stage argument, found in proposition eight, is that the instructions defining mitigating evidence were insufficient. He argues that the trial court’s instruction which defines mitigating evidence as factors which “in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame” impermissibly narrows the characterization of mitigation.18 OUJI-CR 2d 4-78 (1996). This same argument was recently rejected in Rojem v. State, 2009 OK CR 15, ¶ 26, 207 P.3d 385, 396, even in light of our decision to have the instruction modified in Harris v. State, 2007 OK CR 28, ¶ 27, 164 P.3d 1103, 1114. We find that the jury in this case was not limited in their ability to consider mitigating evidence. ¶69 Goode next argues, in proposition six, that Oklahoma’s “continuing threat” aggravating circumstance is unconstitutional.19 Goode recognizes that we have consistently rejected this claim, but urges reevaluation of this aggravating circumstance, because it has been some time since a substantive analysis of this aggravating circumstance has been undertaken by this Court. Goode argues that this Court’s past reliance on Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 48 L.Ed.2d 929 (1976), in which the United States Supreme Court found a continuing threat aggravating circumstance in Texas’s death penalty scheme constitutional, is misguided because Oklahoma’s death penalty procedure is much different from the Texas procedure. Goode also argues that evolving standards of decency have rendered this aggravating circumstance, as it is applied under the Oklahoma procedure, violative of the Eighth Amendment to the United States Constitution.20 ¶70 Goode’s argument that Jurek does not apply was rejected in Murphy v. State, 2002 OK CR 24, ¶¶ 38-39, 47 P.3d 876, 884. Furthermore, the Tenth Circuit has upheld this State’s continuing threat aggravating circumstance under similar arguments. See Castro v. Ward, 138 F.3d 810, 816-17 (10th Cir.1998); and Nguyen v. Reyn-

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olds, 131 F.3d 1340, 1353-54 (10th Cir. 1997). We find no reason to revisit the issue in this case, and we continue reject this argument. ¶71 With respect to Goode’s argument that evolving standards of decency and the highly speculative nature of predicting the probability of future conduct makes this aggravating circumstance suspect, we find that the instructions on the continuing threat aggravating circumstance are sufficient to make the aggravating circumstance valid. The instructions require a finding that a defendant’s behavior has demonstrated a threat to society and a finding that there is a probability that this threat will continue to exist in the future. OUJI-CR 2d 4-74 (2006). This aggravating circumstance may be proven by evidence of prior convictions, unadjudicated offenses, the nature of the crime itself, or any other relevant evidence. Sanchez v.

State, 2009 OK CR 31, ¶ 81-94, 223 P.3d 980, 1006-11; Magnan v. State, 2009 OK CR 16, ¶ 31, 207 P.3d 397, 407. ¶72 This Court has consistently held that this aggravating circumstance sufficiently narrows the class of murders that are eligible for the death penalty so as to pass constitutional muster. Magnan, 2009 OK CR 16, ¶ 37, 207 P.3d at 408. There is no reason to reevaluate this aggravating circumstance at this time.

IV. PROSECUTORIAL MISCONDUCT ¶73 In proposition five, Goode claims that the prosecutor committed misconduct during several phases of the trial, especially during closing argument. Goode admits that there were no objections to the statements that he now alleges as misconduct, thus this Court is limited to a review for plain error only. Andrew v. State, 2007 OK CR 23, ¶ 128, 164 P.3d 176, 202. ¶74 His first claim centers on the references to the movie Scarface and Goode’s proclivities toward that movie. As discussed in proposition three, Goode likened himself to “Scarface” (the lead character in the movie with the same name), and he was obviously enamored with the movie. The prosecutor here was simply arguing the evidence from the State’s point of view. The right of argument contemplates a liberal freedom of speech, and that the range of discussion, illustration, and argumentation is wide. Marshall v. State, 1998 OK CR 30, ¶ 20, 963 P.2d 1, 8.

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of the case from their opposing points of view. Frederick v. State, 2001 OK CR 34, ¶ 150, 37 P.3d 908, 946. Reversal is required only where grossly improper and unwarranted argument affects a defendant’s rights. Howell v. State, 2006 OK CR 28, ¶ 11, 138 P.3d 549, 556.

Ball v. State, 2007 OK CR 42, ¶ 57, 173 P.3d 81, 95 ¶75 Here, the prosecutor was merely exercising his right of argument based on the evidence presented; there was no misconduct in this argument. ¶76 Goode next complains that the prosecutor improperly vouched for “jailhouse snitch” Fred Clemons. The prosecutor did not vouch for Clemons. He was merely pointing out that Clemons testified to information which only the killer would know. This argument did not amount to plain error. ¶77 Lastly, Goode argues that the prosecutor told the jury that the defense must provide evidence to corroborate its witnesses. The prosecutor argued that testimony from defense witness Penny Avans lacked corroboration. He also argued that the testimony of State’s witnesses Michelle Chastain and Ronald Thompson were fully corroborated. ¶78 While some of the State’s witnesses’ testimony required corroboration in this case — such as accomplice testimony — the same is not true of defense witnesses. Here, though inartfully, the prosecutor was merely asking the jury to weigh the evidence in light of the entire record, as the instructions so indicate.

There is no plain error here. ¶79 To overcome the plain error review, he claims, in proposition nine, that defense counsel was ineffective for failing to object to this argument. We find that counsel’s failure to object did not prejudice Goode in any way, thus there is no ineffective assistance.

V. INEFFECTIVE ASSISTANCE OF COUNSEL ¶80 In addition to the failure to object to the closing argument, Goode also argues in proposition nine, that counsel’s conduct fell below reasonable objective standards. He points to counsel’s additional failure to object to certain hearsay evidence and certain opinion evidence introduced at trial. He also claims that counsel was ineffective for failing to investigate and utilize available evidence.21

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¶81 In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In Strickland, the Court went on to say that there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. ¶82 To establish prejudice, Appellant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. ¶83 Goode complains that counsel failed to object to hearsay testimony of Cherry Thompson and to the expert opinion testimony of Detective Felton. The alleged hearsay testimony by Cherry Thompson, Mitch and Michelle’s mother, concerns statements made to her by Felton. On redirect, Thompson was asked if she learned that Xanax pills from the Dodge Neon was, one of many things, a motive in this case. She testified that she learned this from J.R. Felton. These questions were in response to defense counsel’s inquiry about Xanax pills in connection to the earlier fight at Michelle’s house and whether she had disclosed this information to the authorities. The prosecution’s inquiry was an effort to rehabilitate her credibility; counsel’s failure to object did not fall below reasonable standards because the questioning showed that she did not have first hand knowledge. ¶84 The expert opinion referenced in this argument is Felton’s opinion that Chastain was talking to a black male the day after the murders. Felton was present at Hillcrest hospital when Chastain received a phone call. (Chastain had testified that Goode kept calling her that day and threatening her and her family if she talked to the police.) According to Felton, Chastain became visibly upset when she received this call. Felton could hear the other voice on the phone and he described the voice as a deep male voice speaking in street slang.

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describing his professional experience, Felton testified that the voice was consistent with a black male’s voice. Counsel did not object to the opinion; therefore, Appellant now claims that he was ineffective for failing to object to this opinion testimony. ¶85 Felton was merely saying that the voice sounded like a black male. There is no expert opinion in this testimony, merely a lay opinion.

The failure to object did not change the outcome of this case, in this instance, thus there is no ineffective assistance in the failure to object. ¶86 Goode lastly claims that counsel failed to investigate and utilize additional evidence during the first stage to impeach Ronald Thompson; and failed to investigate and utilize available mitigation evidence during the second stage. Goode has filed an Application For Evidentiary Hearing on Sixth Amendment Claims pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010). Affidavits attached thereto are offered to meet the burden set forth in the above rule that “the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective.” Id. ¶87 The affidavits are provided to support the claim that additional evidence was available to impeach Ronald Thompson. The first is an affidavit from Douglas Miller, a cellmate of Thompson. Miller states that he “confronted” Thompson and told him that he was friends with Tara Buchett-Thompson, knew Mitch, and attended Tara and Kayla’s funeral. Ronald Thompson got mad and they exchanged words.

Miller told Thompson he just wanted the truth.

Miller’s affidavit states that Thompson said he could not remember what happened because he was “fucked up on zanex [sic] and extacy.”

He said that the police brought up the names of Goode and Johnson and since he was picked up by Goode that evening, he believed the story would work out. Thompson told Miller that Mitch owed him money and beat him with a baseball bat. Miller states that he did not reveal this information before because he wanted to stay out of the middle of things. ¶88 The next piece of evidence is information that Damos Joseph provided to police before trial disputing the fact that the killers took the weapons to him after the murders. The infor-

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mation in the motion for an evidentiary hearing indicates that trial counsel had this information, and the record indicates that counsel did not use this information to cross-examine Thompson during trial. The record also indicates that Joseph did not testify at trial. ¶89 Goode has provided no affidavits from Joseph indicating that he was available to counsel nor are there affidavits from trial counsel indicating his knowledge of this information or his trial strategy regarding this information. ¶90 Obviously the information from Miller is suspect. Thompson was cross-examined extensively about his drug use during and after these crimes. He admitted that he was intoxicated. He also admitted that he lied to police about his involvement in the crime, and then his story evolved during the interview to the level somewhat consistent with his testimony.22 His statements to Miller were an effort to conceal his involvement in this crime, because Miller was friends with the victims. Thompson surely feared retaliation from Miller if Thompson told Miller what actually happened. ¶91 The information from Joseph is equally suspect. Joseph is obviously trying to deny any involvement in this crime and trying to deny that he was an accessory after the fact by denying that he took the guns after the crime. ¶92 None of this information provides “clear and convincing evidence” that shows “a strong possibility trial counsel was ineffective.” In other words the information does not adequately show that counsel’s conduct fell below reasonable standards of conduct, or that the failure to utilize this evidence prejudiced Goode. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Simpson v. State, 2010 OK CR 6, ¶ 53, _ __ P.3d ___, (holding that this clear and convincing standard is less onerous than the standard set forth in Strickland.) ¶93 The second part of this claim is that counsel was ineffective for failing to investigate and utilize additional mitigation witnesses. Goode provides, in the application for evidentiary hearing, several affidavits from family members, including Goode’s daughter and son, friends, and coworkers. Goode claims that because his attorney never contacted many of these witnesses, he could have no way to make a strategic decision regarding the use of these witnesses. See Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 2538, 156 L.Ed.2d 471 (2003).

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Claims of ineffective assistance for failure to adequately investigate and present mitigating evidence are treated in essentially the same manner as other ineffective assistance claims, requiring a showing of both deficient attorney performance and prejudice. The main difference is in the prejudice analysis, where the reviewing court must determine whether there is a “reasonable probability” that if trial counsel had presented the omitted mitigating evidence, the sentencer “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” In making this determination, the newly proffered mitigating evidence must be considered along with the mitigating evidence that was presented and then weighed against the aggravating evidence that was presented. Finally, we also consider whether there is a reasonable probability that inclusion of the omitted mitigating evidence could have “alter [ed] the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.”

Malone v. State, 2007 OK CR 34, ¶ 112, 168 P.3d 185, 229 [footnotes and citations omitted] ¶94 Counsel called two witnesses in the second stage, Goode’s mother, Margaret Goode, and his fiancé, Larenda Carter. This testimony, along with the first stage testimony of coworker Teresa Sharpe, formed the basis of Goode’s mitigation evidence, which was outlined in an instruction to the jury.23 ¶95 In this case, Goode cannot show that he was prejudiced by the absence of additional mitigating evidence. Most of the information provided in the affidavits was presented to the jury. Goode’s mother and fiancé testified about his good family background, his childhood, his participation in high school sports, and his devotion to his family and children. Goode’s coworker testified about his employment and his ability to assist patients in the mental health ward at the hospital. ¶96 One affidavit describes Goode as coming from a good home, but upon reaching his teen years he began getting into trouble because he was influenced by peers. Affidavits from Goode’s children describe their life with Goode in a very positive light. Coworkers’ affidavits also describe him as a good worker. Other friends describe Goode as a good person while

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around them. Much of Goode’s proposed additional mitigation evidence was cumulative to that presented to the jury. Even if trial counsel had presented all of the mitigating witnesses now proposed, there is no reasonable probability that the outcome of the trial would have been different. Goode has, therefore, failed to show by clear and convincing evidence there is a strong possibility that counsel was ineffective, and he has failed to establish the need for an evidentiary hearing, thus the application for an evidentiary hearing is denied, and Goode’s claims of ineffective assistance are also denied.

VI. CUMULATIVE ERROR AND MANDATORY SENTENCE REVIEW ¶97 After reviewing this entire case, we find no individual error which requires reversal.

Even when we view these alleged errors in a cumulative fashion, we find that no relief is required, thus Goode’s cumulative error claim must fail. Woods v. State, 1984 OK CR 24, ¶ 10, 674 P.2d 1150, 1154. ¶98 We find that there is sufficient evidence for the aggravating circumstances found by the jury: (1) the defendant created a great risk of death to more than one person; and (2) there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society. ¶99 Here, great risk of death is clear. The evidence is clear that three people were shot and killed in the same room, thus satisfying the elements of this aggravating circumstance. See Dodd, 2004 OK CR 31, ¶ 106, 100 P.3d at 1048.

Evidence of continuing threat was proven by the callous nature of this crime, Goode’s threats to harm Michelle Chastain and her family after the murder, his attempt to hire someone to kill Chastain, and his prior conviction for possession of a firearm, after former conviction of a felony, in the United States District Court for the Northern District of Oklahoma.24 See Harris v. State, 2007 OK CR 28, ¶ 14, 164 P.3d 1103, 1110. ¶100 Goode presented mitigating evidence, which was summarized and listed in an instruction to the jury. In addition, the trial court instructed, that the jury could decide that other mitigating circumstances exist and they could consider them as well. Obviously the jury chose to find that, even with the mitigating evidence, Goode should be sentenced to death.

We agree.

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¶101 We can say, beyond a reasonable doubt, that the jury’s verdict was not born under the influence of passion, prejudice or any other arbitrary factor, and the evidence supported the jury’s findings of the aggravating circumstances. See 21 O.S.2001, § 701.13. ¶102 We find no error warranting reversal of Goode’s convictions or sentences; therefore, the Judgments and Sentences of the trial court are, hereby, AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY BEFORE THE HONORABLE TOM C. GILLERT, DISTRICT JUDGE ¶103 CLARENCE ROZELL GOODE, JR, was tried by jury for three counts of First Degree Murder and one count of First Degree Burglary in case number CF-20053904 in the District Court of Tulsa County before the Tom C. Gillert, District Judge.

Goode was sentenced to death for each of the first degree murder counts and twenty (20) years imprisonment and a $10,000 fine for the first degree burglary count. He perfected an appeal to the Oklahoma Court of Criminal Appeals. Judgment and Sentence for all counts is AFFIRMED. APPEARANCES AT TRIAL Stan Monroe, 15 West Sixth, Suite 2112, Tulsa, OK 74119 Larry Edwards, 601 South Boulder, Suite 1305, Tulsa, OK 74119, Attorneys for Defendant Tim Harris, District Attorney, Steve Kunzweiler, James Hawkins, Assistant District Attorneys, Tulsa County, 500 South Denver, Room 406, Tulsa, OK 74103, Attorneys for the State APPEARANCES ON APPEAL James H. Lockard, Deputy Division Chief, Janet Chesley, Appellant Defense Counsel, Capital Direct Appeals Division, Indigent, System, P.O. Box 926, Norman, OK 73070, Attorneys for Appellant W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer L. Strickland, Assistant Attorney General, 313 Northeast 21st Street, Oklahoma City, OK 73105, Attorneys for Appellee

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OPINION BY: LEWIS, J. C. JOHNSON, P.J.: CONCURS A. JOHNSON, V.P.J.: CONCURS LUMPKIN, J.: CONCURS IN RESULTS 1. Kenneth Johnson was tried after Goode and was convicted on all four counts; Johnson’s jury found the existence of the great risk of death to more than one person aggravating circumstance, but set punishment at life without parole on each of the three murder counts and twenty years on the first degree burglary count. Johnson’s appeal was denied in Oklahoma Court of Criminal Appeals case number F-2008291. Ronald Thompson, subsequent to both trials, entered pleas of guilty to all counts and received life without parole on one murder count, life on the two remaining murder counts and twenty years on the first degree burglary count, his certiorari appeal was denied on February 2, 2009 in Oklahoma Court of Criminal Appeals case number C-2008-541. Thompson had agreed to testify against Goode, and, in return, the State agreed not to file a bill of particulars against him.

2. Appellant’s notice of intent to appeal was timely filed on January 16, 2008, and his Petition in Error was filed with this Court on July 1, 2008. Appellant filed his brief on February 2, 2009. The State filed its response brief on June 11, 2009. The case was submitted to the Court June 18, 2009. Appellant’s reply brief was filed July 8, 2009. Oral argument was held January 12, 2010.

3. Kayla lived with her maternal grandmother Brenda Smalygo, but was allowed to spend the night with her mother on this particular night.

4. A .357 Sig is a pistol caliber or cartridge characterized by a bottle necked shape and made for semi-automatic pistols, not to be confused with the .357 Magnum cartridge which has a straight walled case and is typically used in revolvers.

5. Amendment VI to the United States Constitution and Article 2, § 20 of the Oklahoma Constitution.

6. Moreover, and equally disturbing, is the trial court’s attempt to use this Court, and the prosecution, as his scapegoat, by saying that the prosecution knows that if they are wrong about prejudicial material in the tape, the case will be reversed. Trial courts should be diligent in their effort to cure errors during trial, so that the expense of retrial can be avoided. Furthermore, defense counsel is far from blame. Instead of sitting on its hands, defense counsel should have insisted that the trial court view the tape before making a decision.

7. This Statute governs the introduction of extrinsic evidence of prior inconsistent statements.

8. Ultimately, the State only sought introduction of one tape, State’s exhibit 144.

9. The record does not reveal whether or not the jury viewed the tape, which is an hour-long interview of Chastain in a small interview room. Chastain’s cousin is also present. Chastain is very emotional during this interview as she deals with the death of her brother at the hands of her boyfriend, and her father’s heart attack which occurred a day after her brother was killed. Apparently, the tape was not loud enough to be played in the courtroom, so the only way to hear the recording was in the confines of the jury room. Even so, there is no indication that the jury played the tape.

10. This is true even if we assume that the jury had the equipment in the jury room and did in fact view the tape in its entirety.

11. The jury was instructed on the use of Chastain’s prior inconsistent statements with OUJI CR 2d 9-20, the use of Goode’s prior bad acts with OUJI CR 2d 9-9, and their role in judging the credibility of witnesses with OUJI CR 2d 10-8. These instructions were sufficient to inform the jury on how to apply this tape in the context of this trial.

12. State’s Exhibit 18.

13. In the past, this Court has held that some 911 tape recordings are not excluded by the hearsay rule. 12 O.S.2001, § 2803; Stouffer, 2006 OK CR 46, ¶¶ 114-17, 147 P.3d at 269; Al-Mosawi, 1996 OK CR 59, ¶ 56, 929 P.2d at 283-284. However, hearsay is not the issue here.

14. Smallwood v. State, 1995 OK CR 60, ¶ 29, 907 P.2d 217, 227 (“This Court has consistently held that it is not error alone that reverses the lower court’s judgments, but error plus injury, and the burden is upon the appellant to establish the fact that he was prejudiced in his substantial rights by the commission of the alleged error.”)

15. State’s exhibit 131, which is actually a photograph of the notebook, was introduced.

16. State v. Riojas, 204 P.3d 578, 584 (Kan. 2009); also see Pittman v.

State, 885 N.E.2d 1246, 1256 (Ind. 2008).

17. Her testimony also included proper testimony about the impact of death of Tara Burchett, her sister, on her.

18. This instruction was modified by the OUJI committee after the trial of this case.

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19. “The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” 21 O.S.2001, § 701.12(7).

20. His argument is based, in part, on the fact that only six of the thirty-eight states which authorize the death penalty use a future dangerous aggravating circumstance as a special consideration for punishment and only two of those states, Oklahoma and Wyoming, authorize a continuing threat aggravating circumstance to be a determining factor for death eligibility. The remainder use continuing threat/future dangerousness as a factor after the jury has already determined a person is eligible for the death penalty.

21. Goode has filed a motion for evidentiary hearing pursuant to Rule 3.11 to support his claims on appeal.

22. Thompson first told police that he did not go into the house, and then he told them that he did go in the house, but he did not have a gun, then later he told them that he had a gun but he did not shoot it. Then he finally admitted to firing the gun, but only because of the threats.

23. The evidence was that Goode had a secure and healthy attachment with both parents; Goode lived in the same home from birth to age 18; Goode had only one sibling; Goode’s parents presented good role models, strong work ethic and strong family ties; Goode attended church; Goode has four children who love him and continue to be in contact with him; Goode’s mother and family continue to support him; Goode took a leading role in helping his family after the death of his father; Goode was a responsible father to his daughter and wants to continue a positive relationship with his children; Goode was very caring and helpful with seniors where he worked; Goode was gainfully employed for 5-1/2 years before his arrest; Good was 29 years old at the time of these homicides.

24. State’s exhibit No. 145.

LUMPKIN, JUDGE: CONCUR IN RESULT ¶1 I concur in the Court’s decision to affirm the judgments and sentences in this case. However, I have some disagreement in how the Court arrives at those decisions. ¶2 I disagree with the Court’s decision as to the admissibility of the 911 tape. The Court says it finds no relevance to the tape. However, what can be more relevant than the reporting of the crimes in question and the events surrounding it? Regretfully, the Court engages in an after the fact analysis of whether the State needed the evidence in determining whether it was relevant or not. It is hard to know what the jury thought was necessary in their decision making, but it is undeniable they would have at least wanted to know how the crime was discovered and the actions that were taken in reporting it. This 911 tape falls directly within the scope of admissibility approved by the U.S. Supreme Court in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). It would appear this action is just another attempt to sanitize the horrific nature of this crime for the defendant’s benefit. Because I believe it was admissible in the first place, it was not necessary to perform a harmless error analysis. ¶3 While I concurred in Walker v. State, 1994 OK CR 66, 887 P.2d 301, I have since that time become concerned regarding the Court’s proclivity for after the fact determination of what

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was necessary for the proof in cases at trial. See Lowery v. State, 2008 OK CR 26, 192 P.3d 1264, 1273-1275 (Lumpkin, J.: Concur in Part/Dissent in Part). What may seem unnecessary to meet burden of proof requirements after the fact of a conviction by a jury may have been extremely important in the jury’s decision making process. The Oklahoma Evidence Code provides “’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.2001, § 2401. I would submit that a 911 tape that qualifies for admission pursuant to Davis v. Washington, supra, is admissible as relevant evidence for the jury to consider in their deliberations.

Illegal Drugs (Count I) (63 O.S.Supp.2004, § 2415), Unlawful Possession of Controlled Dangerous Substance with Intent to Distribute (Count II) (63 O.S.Supp.2005, § 2-401(B)(2); Acquiring Proceeds from Drug Activity (Count III) (63 O.S.2001, § 2-503.1); and Possession of a Firearm After Former Conviction of a Felony (Count IV) (21 O.S. Supp.2005, § 1283), Case No. CF-2007-17, in the District Court of Washington County. The Honorable Curtis L. DeLapp, District Judge, sentenced Appellant to twenty-five (25) years imprisonment in each of Counts I, II and III, plus fines and costs, said sentences to run concurrent; and ten (10) years imprisonment in Count IV, plus fines and costs, said sentence to run concurrent with the sentences in Counts I – III. It is from this judgment and sentence that Appellant appeals.

¶4 I also disagree with the Court’s analysis of the victim impact evidence presented by Tessa Amaro. While the Court spends much time discussing the “immediate family” provision of 22 O.S.2001, § 984(2), it fails to recognize the “or” in the statute that allows “or person designated by the victim or by family members of the victim” to testify to the impact as set out in Section 984(1). While the opinion recognizes Amaro testified as a representative and that the testimony was proper, the opinion makes the mistake of thinking the testimony is restricted to impact on the immediate family when Section 984(1) says the impact can be on immediate family “or person designated by the victim or by family members of the victim”. Section 984(1) defines victim impact statements and Section 984.1 states who may present victim impact statements. The opinion apparently has confused the two and failed to recognize that section 984(1) allows for the victim impact statement to include the impact on a “person designated by the victim or family members of the victim” and that is what was done here. Therefore, I find the testimony of Tessa Amaro to be allowed by 22 O.S.2001, § 984 and § 984.1.

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

2010 OK CR 9 CRYSTAL LEA WATSON, Appellant v.

STATE OF OKLAHOMA, Appellee Case No. F-2009-400. June 2, 2010 OPINION LUMPKIN, JUDGE: ¶1 Appellant Crystal Lea Watson was tried in a non-jury trial and convicted of Trafficking in Vol. 81 — No. 17 — 6/19/2010

I. The District Court’s decision to try Appellant in absentia was in error.

II. Appellant’s separate convictions for trafficking in illegal drugs and unlawful possession of drugs with intent to distribute violated the Section 11 prohibition against multiple punishments for a single act.

III. Because the State failed to produce sufficient evidence to show that Appellant was guilty of the crimes charged, this Court must reverse her convictions and remand the matter with instructions to dismiss.

IV. The trial court’s imposition of twentyfive year sentences for trafficking and unlawful possession with intent to distribute is shockingly excessive. ¶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 reversal is warranted in Proposition One. ¶4 In her first proposition of error, Appellant contends the trial court erred in conducting her trial in her absence. The record shows that the non-jury trial was begun on Friday, December 19, 2008. Defense counsel was present and the case called for trial. Appellant was not present.

When the court inquired, defense counsel said he expected Appellant to be there. He said he had spoken with her the previous Monday

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when she came to his office to help with trial preparations. With the court’s permission, defense counsel and courthouse personnel searched in and around the courthouse for Appellant. However, she could not be located.

Finding no reason had been given for her absence, the court held the trial would proceed in her absence. Defense counsel objected and requested a continuance. The court overruled the objection, denied the continuance and proceeded to trial. Appellant was convicted as charged. ¶5 Appellant eventually turned herself in on April 24, 2009, and appeared for sentencing on April 29. She told the court she “got scared” and left town before her trial started. She said she went to see a friend in Idaho, but eventually decided to come back to Oklahoma and turn herself in. She explained that she thought if she was gone long enough and “didn’t make anymore mistakes that the court would see I was trying to make an effort and would go easier on me, but it just kept getting worse and worse.” ¶6 Under Oklahoma state law, a defendant must be personally present at the trial if he/she is being prosecuted for a felony and when a verdict is returned. 22 O.S.2001, §§ 583 & 912.1 The “right to be present” is rooted primarily in a defendant’s Sixth Amendment right to confront the witnesses against him/her. Jones v.

State, 2006 OK CR 5, ¶ 68, 128 P.3d 521, 543-544.

A defendant’s Fifth Amendment due process right is violated only if the defendant’s absence from some portion of the proceedings is shown to have impaired his/her ability to defend himself/herself. Id. However, the right of a criminal defendant to attend a felony trial is not an absolute right; it may be waived. Gregg v. State, 1992 OK CR 82, ¶ 24, 844 P.2d 867, 876877, citing Peters v. State, 1973 OK CR 443, ¶ 13, 516 P.2d 1372, 1374-1375. A defendant’s right to be present in open court during a felony trial is waived by his/her voluntary absence or disruptive conduct. Id., citing Royal v. State, 1988 OK CR 203, ¶ 6, 761 P.2d 497, 498-99. See also Warren v. State, 1975 OK CR 60, ¶¶ 13-15, 537 P.2d 443, 445. This Court reviews the trial court’s decision to proceed with a trial in absentia for an abuse of discretion. Delancy v. State, 1979 OK CR 56, ¶ 6, 596 P.2d 897, 899. ¶7 The above cited cases and the majority of our state cases concern a defendant who absented himself/herself from trial after trial had begun.2 See Easlick v. State, 2004 OK CR 21, 1460

¶ 16, 90 P.3d 556, 559 (defendant failed to appear on second day of trial); Van White v.

State, 1999 OK CR 10, ¶¶ 30-31, 990 P.2d 253, 264-265 (defendant absent during final day of competency trial); Darks v. State, 1998 OK CR 15, ¶¶33-39, 954 P.2d 152, 161-163 (defendant absent during individual voir dire of the jurors and the sentencing phase of trial); Carpenter v.

State, 1996 OK CR 56, ¶ 19, 929 P.2d 988, 994 (defendant escaped before sentencing hearing); Brown v. State, 1994 OK CR 12, ¶¶ 46-49, 871 P.2d 56, 69-70 (defendant asked to be absent during penalty phase); Gregg, 1992 OK CR 82, ¶ 22, 844 P.2d at 876 (defendant asked to be excused from courtroom prior to the jury’s exits and during arguments on motions); Royal, 1988 OK CR 203, ¶ 6, 761 P.2d at 498-99 (defendant failed to return after the first day of a two day trial); Walker v. State, 1986 OK CR 93, ¶ 6, 720 P.2d 1272, 1274 (defendant absent from sentencing stage of trial); Love v. State, 1984 OK CR 40, ¶¶ 3-5, 675 P.2d 466, 467-68 (defendant failed to return to trial after State’s opening and a lunch recess); Delancy, 1979 OK CR 56, ¶¶ 3-6, 596 P.2d at 898 (defendant absent during a portion of the State’s case-in-chief); Warren, 1975 OK CR 60, ¶ 7, 537 P.2d at 444 (defendant absent after first day of trial); Peters, 1973 OK CR 443, ¶ 12, 516 P.2d at 1374 (during State’s opening statement, defendant screamed, shouted, jumped up and was forcibly removed from courtroom).3 ¶8 However, in Branham v. State, 1971 OK CR 32, ¶ 2, 480 P.2d 281, 282, as in the present case, the defendant was absent when trial began (Branham did appear in the courtroom by the time the State’s first witness was on the stand).

Relying on cases which construed the meaning of 22 O.S.1961, § 583, this Court found error in trying the defendant in absentia because “[t]here is no showing in the record that this defendant personally waived her presence.” 1971 OK CR 32, ¶¶ 3-4, 480 P.2d at 282.4 ¶9 The United States Supreme Court addressed the issue of the absent defendant at the start of trial in Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993). In that case, the defendant was duly notified of his trial date but failed to appear at the start of trial. Trial began when scheduled and continued in the defendant’s absence. Approximately six months later, Crosby was apprehended and returned for sentencing. ¶10 The Supreme Court’s decision that it was error to try Crosby in absentia was based upon

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its reading of Federal Rule of Criminal Procedure 43. “The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial. Because we find Rule 43 dispositive, we do not reach Crosby’s claim that his trial in absentia was also prohibited by the Constitution.” 506 U.S. at 262, 113 S.Ct. at 753. ¶11 Federal Rule of Criminal Procedure 43 is much more detailed than §§ 583 and 912. However, the Supreme Court’s observations on the difference between “pretrial flight” and “midtrial flight” are instructional. While acknowledging “that there are no talismanic properties which differentiate the commencement of a trial from later stages”, the Supreme Court said that with “midtrial flight”, “the defendant’s initial presence serves to assure that any waiver [of the right to be present at trial] is indeed knowing.” 506 U.S. at 261, 113 S.Ct. at 752 (internal citations omitted).

¶14 This conclusion brings up a related issue — just exactly what is the start of trial? We find that for purposes of determining whether a trial can proceed in the defendant’s absence, trial begins when jury selection begins. See Lockett v. State, 2002 OK CR 30, ¶ 9, 53 P.3d 418, 422 (“voir dire is a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present”, citing Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 2246, 104 L.Ed.2d 923 (1989)). See also Darks, 1998 OK CR 15, ¶ 35, 954 P.2d at 162 (“[t]here is no way to assess the extent of prejudice, if any, a defendant might suffer by not being able to advise his attorney during jury selection”); Rigsby v. State, 55 Okl.Cr. 61, 24 P.2d 1016, 1018 (1933) (“[i]t is not necessary for a defendant to be present in court at the trial, except from the beginning of the impaneling of the jury until the verdict is recorded and the jury finally discharged”). If the defendant is absent at the start of jury selection, a voluntary waiver of his/her right to be present at trial must be in the record or the trial is to be held in abeyance pending the defendant’s appearance before the court.

¶12 It is well established that a waiver of a constitutional right will not be presumed from a silent record. Miranda v. Arizona, 384 U.S. 436, 475-476, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Valega v. City of Oklahoma City, 1988 OK CR 101, ¶ 5, 755 P.2d 118, 119. Further, waiver of a statutory right will not be presumed from a silent record. Van White, 1999 OK CR 10, ¶ 31, 990 P.2d at 265; Branham, 1971 OK CR 32, ¶¶ 3-4, 480 P.2d at 282. In each of the state cases cited above where this Court upheld the defendant’s waiver of his/her right to be present at trial, a knowing and voluntary waiver was found in the record – whether it was a verbal waiver after the defendant was advised of his/ her rights, a voluntary absence, or disruptive conduct after an advice of rights. See also Brown, 1994 OK CR 12, ¶ 50, 871 P.2d at 71 (trial court need only advise defendant of right to be present at trial; it is not necessary for the trial court to “recite an extensive litany of the consequences of an accused’s actions before an accused can be allowed to waive his right to be present during trial”).

¶16 We must now decide whether this constitutional error was harmless. See Van White, 1999 OK CR 10, ¶ 32, 990 P.2d at 265. In order for constitutional error to be deemed harmless, the Court must find beyond a reasonable doubt, that it did not contribute to the verdict.

Id., citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The standard for constitutional violations is wellknown: reversal is in order unless the State can show the error was harmless beyond a reasonable doubt. Id., citing Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 1258, 113 L.Ed.2d 302 (1991); Bartell v. State, 1994 OK CR 59, ¶ 11, 881 P.2d 92, 95-97; Simpson v. State, 1994 OK CR 40 ¶ 34, 876 P.2d 690, 701.

¶13 In the present case, while Appellant’s absence from trial was certainly voluntary in that she absented herself from trial of her own accord, the record does not reflect that she was ever advised of her right to be present at trial and that she knowingly waived that right.

Mere absence at the start of a trial is not sufficient to support a voluntary waiver of the right to be present at trial.

¶17 The record in this case shows that a “noknock” search warrant was executed at a motel room shared by Appellant and her boyfriend, Tony Olden. They were the only people in the room. As the officers entered the room, Appellant said that everything in the room was hers and that Olden did not know “anything about anything” in the room. The subsequent search yielded over $5,000.00 cash bundled up with

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¶15 In the present case, absent any record of Appellant’s voluntary waiver of her right to be present at trial, we find the trial court abused its discretion in conducting her trial in absentia.

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rubber bands; digital scales, rolling papers and an additional $200.00 cash; a loaded .38 Ruger; 8.24 grams of cocaine base (crack), 15.57 grams of crack, and marijuana in two baggies weighing 3.59 grams and 5.64 grams, respectively.

Appellant was taken into custody and voluntarily gave a written statement claiming ownership of all of the contraband in the room and said that Olden had nothing to do with it. ¶18 At sentencing, Appellant attempted to challenge the reliability of her statements to police claiming they were made while she was under the influence of drugs and under a threat of harm from Olden. Before she could elaborate, the judge told her that such information was relevant only to trial and not sentencing. Had the court heard Appellant’s statements during trial, the court could have possibly determined that she had no ability to control disposition of the contraband in the motel room. As much of the State’s evidence could only have been refuted or contested by Appellant herself, conducting her trial in her absence was not harmless error. ¶19 Accordingly, we find this case be must reversed and remanded for a new trial consistent with this opinion. The other allegations of error raised on appeal are therefore moot.

W.A. Drew Edmondson, Attorney General of Oklahoma, Lori S. Carter, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105, Counsel for the State OPINION BY: LUMPKIN, J.; C. JOHNSON, P.J., DISSENT; A. JOHNSON, V.P.J., CONCUR; LEWIS, J., CONCUR. 1. 22 O.S.2001, § 583 provides: If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial.

22 O.S.2001, § 912 provides: If the indictment or information is for a felony, the defendant must, before the verdict is received, appear in person. If it is for a misdemeanor, the verdict may, in the discretion of the court, be rendered in his absence.

2. This list is not all inclusive but a sampling of the cases addressing the issue.

3. In Sonnier v. State, 1979 OK CR 70, ¶ 6, 597 P.2d 771, 773 this Court rejected the appellant’s claim of error in the trial court’s failure to grant a continuance when the defendant and his chief counsel failed to appear. It is not clear from the opinion whether this was the first day of trial or after trial had begun. However, as Sonnier relies on Warren v.

State, 1975 OK CR 60, 537 P.2d 443, a case where the defendant appeared for the first day of trial but thereafter absented himself, it is not relied upon as a case where the defendant was absent from the start of trial.

4. 22 O.S.1961, § 583 reads the same as 22 O.S.2001, § 583.

DECISION ¶20 The Judgment and Sentence is REVERSED and REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY THE HONORABLE CURTIS DELAPP, DISTRICT JUDGE APPEARANCES AT TRIAL Gerald J. Lovoi, 324 S. Main St., Tulsa, OK 74103, Counsel for Appellant Frederick S. Esser, District Attorney, Will Drake, Assistant District Attorney, Washington Co. Courthouse, 420 S. Johnstone, Bartlesville, OK 74003, Counsel for the State APPEARANCES ON APPEAL

Converted Office Building at 1305 N. Shartel Located in the Midtown Area 3,075 Square Feet • 2 Story Zoned DTD • New Roof Recently Remodeled • Several Offices Conference Rooms • Kitchenette 3 Restrooms • Large Parking Lot $350,000

Mark P. Hoover, P.O. Box 926, Norman, OK 73070, Counsel for Appellant

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, June 2, 2010 M-2008-139 — John Francis Special, Appellant, was found guilty of Leaving the Scene of a Boating Accident, Count II, in Delaware County District Court Case No. CM-2006-868, by the Honorable Alicia R. Littlefield, Special Judge.

Special was assessed a $50 fine. From this judgment and sentence Appellant has perfected this appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J, Concurs in Results; Lumpkin, J., Concurs; Lewis, J., Concurs.

RE-2009-1058 and RE-2009-1060 — Appellant, Lloyd Davis Jones, pled guilty in the District Court of Tulsa County January 8, 2008, in CF-2007-5042 to Count 1 — Possession of Controlled Drug With Intent to Distribute, Count 2 — Driving Without a Driver’s License, a misdemeanor, and Count 3 — Improper Stopping, a misdemeanor. He was given a four year suspended sentence on Count 1 and fined $100.00 on Count 2 and $10.00 on Count 3. In CF-20013556 Appellant pled guilty April 18, 2008, to Count 1 — Possession of Controlled Drug and Count 2 — Possession of Marijuana, a misdemeanor. He was given a four year suspended sentence on Count 1 and one year suspended on Count 2. An application to revoke Appellant’s suspended sentences was filed March 26, 2009, in CF-2007-5042 and on April 24, 2009, in CF-2001-3556. Following a hearing November 6, 2009, the Honorable Tom Gillert, District Judge, granted the State’s application to revoke Appellant’s suspended sentences in both cases.

In CF-2007-5042 Appellant was sentenced to four years imprisonment. The sentence was ordered to run concurrent with Tulsa County Case No. CF-2001-3556. In CF-2001-3556 Appellant was sentenced to four years imprisonment.

The sentence was ordered to run concurrent with Tulsa County Case No. CF-2007-5042.

Appellant appeals from the revocation of his suspended sentences. The revocation of Appellant’s suspended sentences are AFFIRMED. Opinion by C. Johnson, P.J.; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J., concur.

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Thursday, June 3, 2010 F-2009-282 — Billie James Bickham, Appellant, was tried by jury for the crimes of First Degree Robbery (Count I) after two or more prior convictions and Possession of a Controlled Substance (Cocaine) (Count II) after one prior coniviction in Case No. CF-2008-324, in the District Court of Garfield County. The jury returned a verdict of guilty and recommended as punishment twenty-five (25) years imprisonment on Count I and seven (7) years imprisonment on Count II with sentences to run concurrently. The trial court sentenced accordingly. From this judgment and sentence Billie James Bickham has perfected his appeal.

AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur in Results.

F-2009-275 — Billy Joe Dickson, Appellant, was tried by jury and convicted of lewd molestation in violation of 21 O.S.Supp.2007, § 1123(A)(2), after former conviction of two or more felonies, in Kay County District Court Case Number CF-2008-518, before the Honorable D.W. Boyd, District Judge, The jury set punishment at twenty (20) years imprisonment and the trial court sentenced Dickson in accordance with the jury verdict. From this judgment and sentence, Billy Joe Dickson has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur in results; Lumpkin, J., concur.

Friday, June 4, 2010 F-2009-507 — Appellant David Ray Gutierrez was tried by jury and convicted of Use of a Vehicle to Facilitate the Intentional Discharge of a Firearm (Count I) (21 O.S.Supp.2007, § 652(B)) and Possession of a Firearm After Former Conviction of a Felony (Count II) (21 O.S.Supp.2007, § 1283(A)), Case No. CF-2008231, in the District Court of Garfield County.

The jury recommended as punishment imprisonment for seventeen (17) years in Count I and for five (5) years in Count II. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals.

AFFIRMED. Opinion by: Lumpkin, J.; C. John-

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son, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J.: concur.

Tuesday, June 8, 2010 RE-2009-0710 — Appellant, Charles Wesley Franklin, pled nolo contendere June 5, 2008, in the District Court of Tulsa County, Case No. CF-2008-1464, to Count 1 — Unlawful Possession of Controlled Drug, Count 4 — Driving With License Cancelled/Suspended/Revoked, a misdemeanor, and Count 5 — SpeedingPosted Zone, a misdemeanor. He was sentenced to four years suspended, with rules and conditions of probation, and a $500.00 fine on Count 1, a $100.00 fine on Count 4 and a $50.00 fine on Count 5. The State filed a motion to revoke Appellant’s suspended sentence on April 16, 2009. Following a revocation hearing May 29, 2009, the Honorable William C. Kellough, District Judge, revoked three years of Appellant’s four year suspended sentence with the remaining one year suspended with rules and conditions of probation. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J, concur; Lewis, J.: concur.

RE-2008-976 — Willie Earl Williams, III, Appellant, entered a plea of guilty to Second Degree Burglary, Count I, Cultivation of a Controlled Dangerous Substance (Marijuana), Count II, and Misdemeanor Possession of Paraphernalia, Count III, in Payne County District Court Case No. CF-2004-879. Williams was subsequently sentenced to five years incarceration, all suspended. Williams’ suspended sentence was revoked in full by the Honorable Donald L. Worthington, District Judge. From this order of revocation, Williams has perfected his appeal. The District Court’s order revoking Williams’ suspended sentence in full is AFFIRMED. Opinion by: Johnson, C., P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

Wednesday, June 9, 2010 F-2008-325 — Marquise Leland White, Appellant, was tried by jury for the crimes of First Degree Murder (Count 1), Kidnapping (Count 2), and First Degree Robbery (Count 3) in Case No. CF-2006-240 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment Life Imprisonment With the Possibility of Parole and a $10,000 fine on Count 1, and ten years imprisonment and a $10,000 fine on each of Counts 2 1464

and 3. The trial court sentenced accordingly and ordered the sentences to be served consecutively. From this judgment and sentence Marquise Leland White has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs in results.

C-2009-900 — Leon Lee Hooks, Petitioner, entered a negotiated plea to the crime of First Degree Rape, After Former Conviction of a Felony in Case No. CF-2009-463 in the District Court of Muskogee County. The Honorable Mike Norman accepted his plea and sentenced him to thirty years imprisonment, with all but the first ten years suspended, and a $100 fine.

Hooks filed a timely pro se motion to withdraw his guilty plea, and after the prescribed hearing, the district court denied his motion. Hooks appeals the district court’s order and asks this Court to issue a Writ of Certiorari remanding this matter to the district court with either instructions to permit him to withdraw his guilty plea or for a complete evidentiary hearing on the merits of his motion with the assistance of effective, conflict-free counsel. The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the district court for a hearing on the Application to Withdraw Plea consistent with this Opinion. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs.

Thursday, June 10, 2010 F-2008-941 — Gene Elton Kornman, Jr., Appellant, was tried by jury for the crimes of Burglary in the Second Degree and Grand Larceny in Case No. CF-2006-196 in the District Court of Garfield County. The jury returned a verdict of guilty and recommended as punishment five years imprisonment on each count.

The trial court sentenced accordingly. From this judgment and sentence Gene Elton Kornman, Jr. has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs in results.

F-2009-320 — Daniel Edward Stevenson, Appellant, was tried by jury for the crime of Attempted Robbery with a Weapon, After Former Conviction of a Felony in Case No. CF2008-4329 in the District Court of Tulsa County.

The jury returned a verdict of guilty and rec-

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ommended as punishment twenty years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Daniel Edward Stevenson has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs.

F-2008-1157 — Jason Wilson, Appellant, was tried by jury for the crimes of Assault and Battery with a Deadly Weapon (Count 1), Misdemeanor Unlawful Possession of Marijuana (Count 2), Misdemeanor Unlawful Possession of Drug Paraphernalia (Count 3), and Misdemeanor Assault (Count 4) in Case No. CF2008-58 in the District Court of Adair County.

The jury returned a verdict of guilty and recommended as punishment 26 years imprisonment on Count 1, a $1,000 fine on each of Counts 2 and 3, and 30 days in jail and a $500 fine on Count 4. The trial court sentenced accordingly. From this judgment and sentence Jason Wilson has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs.

Friday, June 11, 2010 F-2009-517 — Ruben Donnell Jackson, Appellant, was tried by jury for the crime of Possession of a Controlled Dangerous Substance, After Former Conviction of One or More Felonies, in Case No. CF-2008-4904 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment ten years imprisonment and a $7,500.00 fine. The trial court sentenced accordingly.

From this judgment and sentence Ruben Donnell Jackson has perfected his appeal.

AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

F-2009-398 — Lewis William Roberson, Appellant, was tried by jury and found guilty of, count one, Unlawful Possession of a Controlled Substance (Phencyclidine) with Intent to Distribute and, count two, Unlawful Possession of a Controlled Substance (Marijuana) with Intent to Distribute, both in violation of in violation of 63 O.S.Supp.2005, §2-401(B)(2), after former conviction of two or more felonies, in Oklahoma County District Court, Case No. CF-2007-3443, before the Honorable Kenneth C. Watson, District Judge. The jury sentenced Roberson to thirty (30) years imprisonment on each count.

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Judge Watson imposed judgment and sentence accordingly and ordered that the sentences be served concurrently. From this judgment and sentence, Lewis William Roberson has perfected his appeal. The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED as to Count 1, and REVERSED and REMANDED with instructions to DISMISS Count 2.

Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur.

RE-2009-0616 — Appellant, Stevie Glenn Studeman, pled no contest September 12, 2006, in Latimer County District Court Case No. CF2005-4 to the amended crime of Lewd Molestation. He was sentenced to twenty years with all except the first one year suspended, with credit for sixty days served, and with rules and conditions of probation. The State filed an application to revoke Appellant’s suspended sentence on January 9, 2009. Following a revocation hearing July 7, 2009, the Honorable Bill Welch, Associate District Judge, revoked ten years of Appellant’s suspended sentence with the remaining time suspended. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J, Concur in Results.

Monday, June 14, 2010 F-2009-551 — Anthony Tyrone Boyd, Appellant, was tried by jury for the crimes of Assault and Battery (Count I), Kidnapping (Count II), First Degree Rape (Counts III and IV) and Forcible Sodomy (Count V), each After Former Conviction of Two or More Felonies, in Case No. CF-2008-4265 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment ninety days in the county jail and a $1,000 fine on Count I, twenty years imprisonment and a $2,500 fine on Count II, life imprisonment and a $6,000 fine on each of Counts III and IV, and twentyfive years imprisonment and a $3,000 fine on Count V. The trial court sentenced accordingly, ordering the sentences imposed on Counts I, II, III and V to be served consecutively to each other and the sentence on Count III to be served concurrently to the sentence imposed on Count IV. From this judgment and sentence Anthony Tyrone Boyd has perfected his appeal.

AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur.

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F-2009-162 — Merrill Dejohn Carter, Appellant, was tried by jury for the crimes of Attempted Burglary in the Second Degree (Count I) and Public Intoxication (Count II) in Case No. CF-2008-424 in the District Court of Payne County. The jury returned a verdict of guilty and recommended as punishment nine years imprisonment on Count I and thirty days in county jail and a $100 fine on Count II. The trial court sentenced accordingly. From this judgment and sentence Merrill Dejohn Carter has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs in results.

COURT OF CIVIL APPEALS (Division No. 1) Friday, June 4, 2010 106,577 — In Re the Marriage of: Misty L. VanZandt, Petitioner/Appellant, vs. Tregg A. VanZandt, Respondent/Appellee. Appeal from the District Court of Sequoyah County, Oklahoma. Honorable Mark Barcus, Judge. On September 29, 2004, Respondent/Appellee Tregg A. VanZandt (Father) filed a Motion to Modify the parties’ decree of divorce entered October 21, 2002, in which custody of their child, S.V., was awarded to Petitioner/Appellant Misty L. VanZandt (Mother), with supervised visitation rights granted to Father. Father alleged that the trial court entered an order January 8, 2003 finding that since November 1, 2002, Mother had failed to abide by the decree with respect to visitation rights and ordered that he have 8 consecutive weekend visitations. Father further alleged that since the January 8, 2003 order, Mother had willfully refused to follow either the order in the divorce decree or the January 8, 2003 order, and that Mother had absconded from the County with the child. He stated that Mother had remained hidden with the child from him and the authorities for a period of 2 years. Based on the best interests of the child and these changes of circumstances, Father requested a modification of the custody order, granting him custody of S.V. with supervised visits awarded to Mother. An evidentiary hearing was held beginning in January, 2008, and an order entered June 9, 2008, after which the court found that since the decree was entered, there had been a material, permanent and substantial change of circumstances, and that it was in the child’s best interests that the decree be modified to grant Father legal custody of S.V., with visitation to Mother. We 1466

affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

106,893 — Oklahoma Turnpike Authority, a body corporate and politic, Plaintiff/Appellee, vs. Mary E. Dobbins, Personal Representative of the Estate of Keith Dobbins, Defendant/ Appellant, and The Board of County Commissioners of the County of Tulsa; the Treasurer of Tulsa County, Oklahoma; and Their Successors, Defendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman H. Cantrell, Trial Judge. Appellant (Landowner) seeks review of the trial court’s judgment against her in the amount of $70,200.00 in the action of Appellee (OTA) to acquire a portion of Landowner’s property by eminent domain. Landowner contends the court erred in allowing the testimony of OTA’s appraisal expert witness because the witness used an unconstitutional before-and-after method of appraisal. The record does not support this contention. OTA’s expert witness took into account the negative impact the irregular shape of the part taken would have on its marketability and gave the benefit of the doubt to Landowner by valuing it as though it had the same highest and best use as the original tract.

The court did not err in allowing his testimony.

Landowner also contends the court erred by allowing evidence of sales after the date of taking to be introduced. Landowner has failed to show she preserved any error arising from the admission of sales after the date of taking by raising the issue at the appropriate time during trial and objecting to the challenged evidence.

The judgment of the trial court is AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

107,940 — Jerome R. Sullivan, Petitioner, vs.

Premier Communications, Inc., Commerce & Industry Insurance Company, and The Workers’ Compensation Court, Respondent. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court.

Petitioner Jerome Sullivan seeks review of an order of a three-judge panel of the Workers’ Compensation Court which affirmed the trial court’s denial of TTD benefits. The trial court found Sullivan sustained a work-related injury and awarded PPD, but the court denied TTD because Sullivan failed to report for the light duty work offered by Respondent Premier Communications (Employer). Competent evidence supports the panel’s order and we sustain. SUSTAINED. Opinion by Buettner, P.J.; Hansen, J. and Hetherington, J., concur.

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106,073 — Teresa Tortorelli and Robert L. Tortorelli, Plaintiffs/Appellants, vs. Mercy Health Center, Inc., Kimberly Smith, M.D., Oklahoma Orthopedics, Inc., d/b/a Oklahoma Orthopedics Incorporated, and IsoTis Orthobiologics, Inc., Defendants/Appellees, Gensci Regeneration Laboratory Sciences, Inc., IsoTis, S.A., successor to Gensci Orthobiologics, Inc., The Orthobiologics Technology Company, and SMC Ventures, Inc., successor to Gensci Regeneration Sciences, Inc., Defendants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Patricia G. Parrish, Trial Judge. Appeal of judgment entered on jury verdicts in favor of Defendants in a lawsuit alleging a failure to obtain consent for medical treatment and judgment entered in favor of other Defendants based upon application of the learned intermediary doctrine following the grant of motions for summary judgment.

Appellants argue the learned intermediary doctrine did not apply and reversible error occurred in jury instructions, by the allowance of argument and use of a demonstrative aid during an opening statement, denial of a motion to amend their petition and for a continuance, denial of their motion for a directed verdict, and in both allowing and refusing to allow the presentation of certain evidence.

HELD: No reversible error has been shown with respect to the trial court’s determinations regarding the admissibility or inadmissibility of evidence or testimony, use of a demonstrative aid, the application of the learned intermediary doctrine, instruction of the jury, or the denial of Appellants’ eleventh-hour motion to amend the pleadings and for a continuance.

Other alleged errors are not preserved or are not supported by the record, i.e., a record claimed to have been erroneously admitted was not offered for admission. The judgments entered in favor of Defendants are AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

Attorney was hired on the contingency fee contract as co-counsel in the Spring of 2004.

Later, after discussion with Martinez, and pleading press of business, Attorney withdrew from the representation by letter dated April 3, 2006. The stated reason for not filing an application to withdraw was so there would be no impact on her pending litigation in another state. Attorney nonetheless performed some legal services for Martinez in November 2007, but then none after she terminated his services November 27, 2007. Martinez filed a Motion to Dismiss her lawsuit December 9, 2008 and an Order of Dismissal was entered January 9, 2009. The trial court found that Martinez owed Attorney $30,000 for the time period of September 2004 through November 30, 2007 and $3,104.99 in litigation costs. We reverse the attorney fee award because a lawyer is not entitled to receive payment for services rendered, based on the equitable principle of quantum meruit, unless the client recovers money damages. REVERSED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

Thursday, June 10, 2010

106,948 — Grand Energy Corporation, Plaintiff/Appellant, vs. New Dominion, L.L.C., Defendant/Appellee. Appeal from the District Court of Seminole County, Oklahoma. Honorable Gary Snow, Judge. Plaintiff Grand Energy Corporation (Grand) appeals from a trial court order awarding summary judgment to Defendant New Dominion L.L.C. in Grand’s action alleging breach of contract and several tort claims, including trespass, conversion, intentional infliction of emotional distress, and intentional interference with prospective contractual relationship. The “judgment” on appeal does not resolve all of Grand’s theories of recovery and further lacks an express determination or direction as required by 12 O.S.2001 § 994 to make such an order an appealable judgment. As a result, the appeal is DISMISSED AS PREMATURE. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

106,815 — Patricia Martinez, Plaintiff/Appellant, vs. Michael D. Martinez, Defendant, and Glenn Beustring, Applicant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary F. Fitzgerald, Judge.

On January 23, 2008, attorney Glenn R. Beustring (Attorney) filed an Application to Determine Quantum Meruit Attorney Fees for unpaid legal services rendered on behalf of Plaintiff/Appellant Patricia Martinez (Martinez) based on a contingency fee contract.

107,197 — In Re: the Marriage of Margaret Kahn, Petitioner/Appellant, and Darrel F. Kahn, Respondent/Appellee. Appeal from the District Court of Major County, Oklahoma.

Honorable Loren E. Angle, Judge. In this marital dissolution proceeding between Margaret Kahn (Wife) and Darrel Kahn (Husband), Wife appeals a trial court’s order denying her motion to vacate the Decree of Dissolution allegedly approved by a former judge in the case and for new trial. Finding an abuse of

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discretion, we reverse the order denying Wife’s motion and remand the matter for trial on the merits. REVERSED AND REMANDED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

107,357 — In the Matter of the Estate of Wendell R. Wisdom, Deceased. Wendy Allen, Appellant, vs. Michelle Deanise Wisdom Riley, Personal Representative of the Estate of Wendell R. Wisdom, Deceased, Appellee. Appeal from the District Court of Comanche County, Oklahoma. Honorable C. William Stratton, Trial Judge. The deceased, Wendell R. Wisdom, died testate November 20, 2008, bequeathing his entire estate to his stepdaughter, Appellee Michelle Deanise Wisdom Riley (Deanise).

He also named Deanise personal representative of his estate. One of his natural children, Appellant Wendy Allen (Wendy), filed an objection to the admission of the will to probate December 9, 2008, claiming undue influence. After an evidentiary hearing, the trial court entered an order June 24, 2009, admitting the Will to Probate and Overruling the Objection. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

(Division No. 2) Monday, June 7, 2010 107,686 — Victor Martinez, Petitioner/Appellant, v. Plastic Fabricators, Inc., CompSource Oklahoma, and The Workers’ Compensation Court, Respondents/Appellees. Review of an Order of the Workers’ Compensation Court, Hon. William R. Foster, Trial Judge. Martinez asserts that the trial court’s order, finding he did not sustain an injury that arose out of or in the course of his employment, is erroneous because it is not supported by competent evidence and because it is too indefinite and uncertain for meaningful judicial review. We find the trial court’s order is capable of meaningful judicial review and is supported by competent evidence. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Thursday, June 10, 2010 106,820 — Kenneth L. Simington, Plaintiff/ Appellee, v. Oklahoma Department of Rehabilitation Services and Oklahoma Merit Protection Commission, Defendants/Appellants.

Appeal from an order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, reversing an order of the Oklahoma Merit Protection Commission (MPC) on the issue of attorney fees and costs. Plaintiff 1468

filed an internal grievance with the Department of Rehabilitation Services alleging his job classification should be Programs Manager II instead of Programs Manager I. Department determined Plaintiff was properly classified as Programs Manager I. Plaintiff requested a review of the Department’s decision by the Office of Personnel Management which ultimately came to the same conclusion. Plaintiff appealed to the MPC and also filed an application pursuant to 74 O.S.2001 § 840-6.8 seeking attorney fees and costs. An Administrative Law Judge dismissed the appeal as moot and found Plaintiff ineligible for attorney fees and costs. Plaintiff’s motions for reconsideration of the appeal’s dismissal and of the denial of fees and costs were denied by the Commissioners of the MPC. On appeal, the district court reversed and remanded the decision of the MPC as to attorney fees and costs. We, however, find the ALJ’s denial of Plaintiff’s application for attorney fees and costs and MPC’s subsequent refusal to reconsider that denial were correct. We find no basis on any of the grounds enumerated in 75 O.S.2001 § 322 to reverse the MPC’s decision that attorney fees and costs are not recoverable in Plaintiff’s appeal, and the trial court’s decision must be reversed. REVERSED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.

106,210 — Jeanne French, Plaintiff/Appellant, vs. State of Oklahoma ex rel. Oklahoma Department of Corrections and Oklahoma Merit Protection Commission, Defendants/ Appellees. Appeal from the District Court of Coal County, Oklahoma, Honorable Richard E. Branam, Trial Judge. French was discharged from her employment with the Department of Corrections. She appealed her discharge to the Merit Protection Commission (MPC) The MPC Executive Director found that French’s appeal was filed outside of the statutory 20-day appeal period, and the MPC consequently had no jurisdiction to hear her case. French appealed this decision to the district court. The district court granted a DOC motion to dismiss French’s appeal, holding, pursuant to 75 O.S.2001 § 318, that it had no jurisdiction because no “individual proceeding” had taken place at the administrative level. French’s case was an “adverse action appeal” filed pursuant to Oklahoma Administrative Code (OAC) tit. 455, ch.

10, § 3–1.1. Such proceedings are subject to the procedures identified in 75 O.S.2001 § 309-317.

Consequently, French’s appeal was an “individual procedure” for the purposes of judicial

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review pursuant to section 318, irrespective of whether the section 309-317 procedures were actually utilized in her case. However, the district court’s refusal to review the MPC’s decision does not constitute reversible error. The MPC was correct in its determination that it had no jurisdiction to consider the merits of French’s appeal because it was filed outside the 20-day statutory period required by OAC tit.

455, ch. 10, § 3-1-1(2), and the executive director has no discretion to vary this requirement in an adverse action appeal. Therefore, the district court did not err in dismissing French’s Petition for Review, and that Order is affirmed.

AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

106,487 — In the Matter of the Estate of Charles Leon Weatherford, Deceased; The Marriage of Charles Weatherford and Shirley Taber.

Shirley Taber, Petitioner/Appellant, v. Ronnie Weatherford, Respondent, and Carla Thompson, Respondent/Appellee. Appeal from a judgment of the District Court of Blaine County, Hon. Mark A. Moore, Trial Judge. Taber appeals the trial court’s order, finding she was not the common law wife of Charles Weatherford, now deceased. We find the trial court’s determination that no common law marriage existed between Charles Weatherford, now deceased, and Taber is not clearly against the weight of the evidence. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Friday, June 11, 2010 106,682 — In Re the Marriage of: Tammy L. Wilson, Petitioner/Appellee, v. Tim L. Wilson, Respondent/Appellant. Appeal from the District Court of Pontotoc County, Hon. Martha K. Kilgore, Trial Judge, awarding primary custody of the parties’ minor son to Mother and dividing the marital estate. At the time Mother filed a petition for dissolution of marriage, the parties had one minor child, NW. A temporary order awarded the parties temporary joint custody of NW. Mother subsequently filed a motion to enforce her visitation rights alleging Father arbitrarily cut off her visitation on two occasions. The trial court granted custody of NW to Mother subject to Father’s right of visitation. The trial court also divided marital assets and debts and ordered the parties’ daughter to pay $100 per month, Mother to pay $100 per month, and Father to pay $154.75 per month for the debt secured by a vehicle driven by daughter. Father first asserts the trial Vol. 81 — No. 17 — 6/19/2010

court abused its discretion by failing to award custody based upon NW’s expressed preference. We, however, find the trial court correctly followed Oklahoma law, allowed NW to express his preference, and gave serious consideration to NW’s reasons, but after considering the preference expressed, the trial court decided that following the preference was not in NW’s best interest. Father also asserts the trial court erred in failing to award him equal parenting time. We have no indication that Father ever requested joint custody but rather sought sole custody of NW. Although Father now argues on appeal the trial court erred in failing to award equal parenting time, we are unable to see in the record that he ever asked the trial court for such an award. We also agree that joint custody was not feasible because Mother and Father could not effectively communicate and cooperate in matters affecting NW. As to the trial court’s decision regarding daughter’s vehicle, we reverse the decision of the trial court and remand the matter for the trial court to redetermine the issue of allocation of debt on this vehicle. We find the trial court did not abuse its discretion in awarding custody of NW to Mother and affirm this decision.

We reverse and remand the marital debt decision as to the daughter’s vehicle. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.

Monday, June 14, 2010 105,936 — Charlotte R. Stephens, Petitioner/ Appellee/Counter-Appellant/Cross-Appellee, v. Donald W. Stephens, Respondent/Appellant/Counter-Appellee, and Suzanne O. Stephens, Intervenor/Cross-Appellant. Appeal from a judgment of the District Court of Tulsa County, Hon. Kyle B. Haskins, Trial Judge. In this appeal from a decree of dissolution of marriage, the husband and wife both appeal the trial court’s property division. The husband also appeals the alimony award. The husband’s mother, the intervenor, appeals the trial court’s award of the net proceeds from the sale of the marital residence, as to which all three parties were joint tenants. We affirm the trial court’s decision to reopen discovery and allow the pretrial order to be amended as to arrearages under the temporary order, as well as the trial court’s award of those arrearages to the wife.

We also affirm the trial court’s determination of the date of separation and the classification

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of the motorcycle as marital property, subject to equitable division. The trial court omitted, misclassified and/or miscalculated the value of other items of property, which resulted in an erroneous calculation of the marital estate. As such, we reverse and remand so the trial court can assess the impact of the classifications and calculations and re-adjust the division of marital property, if necessary, to reflect an equitable division. Because the equitable division of the marital property is a factor in determining an appropriate award of alimony, we reverse the award of alimony only as to the actual amount, and not as to the wife’s entitlement thereto. On remand, the trial court shall assess the impact of the recalculation of the equitable division of spousal property with a view to re-adjusting, if necessary, the amount of support alimony to be awarded and in light of the stipulated amount of Husband’s income. We affirm the trial court’s finding that the clear weight of the evidence did not support the intervenor’s claim for reimbursement of sums contributed to the marital residence. However, we reverse the trial court’s division of the net proceeds from the sale of the residence evenly among the husband, wife and the intervenor. On remand on this issue, the husband’s post-separation payments on the marital house debt should be considered as a contribution credit when the trial court is redetermining the marital estate and the equitable division thereof. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Tuesday, June 15, 2010 107,642 — Bill Grogan, Plaintiff/Appellant, v. KOKH, LLC, a foreign limited liability company; Andrew Spino; Jaime Cerreta; Matt Austin; Jose Delossantos; Michael Ross Stewart and Todd Walker, Defendants/Appellees.

Appeal from an Order of the District Court of Pottawatomie County, Hon. Douglas L. Combs, Trial Judge, granting the motion for summary judgment filed by KOKH defendants. Grogan, a teacher and former coach at Macomb High School, alleges that he was defamed and that his privacy was invaded by a television broadcast aired by KOKH Channel 25. The broadcast concerned an incident after a basketball game in which some students became upset when a referee required the removal of a cow bell a student had been ringing. Grogan complains about only two statements in the broadcast: (1) at the beginning of the broadcast a KOKH 1470

employee stated “a teacher is accused of threatening to shoot students”; and (2) the broadcast then showed Grogan’s picture while a reporter stated “on the heels of terrorist threats at local schools and a shooting at NIU, some parents in Macomb are fuming. They say a teacher threatened their children and he should be punished like anyone else.” Because the first statement of accusation is true, the district court correctly granted the KOKH defendants’ motion as to Grogan’s theory of recovery based on defamation. With respect to Grogan’s theory of recovery based on false light invasion of privacy, either the facts remain in dispute, or KOKH knowingly or with reckless disregard portrayed Grogan in a false light. The summary adjudication in that respect is reversed, and the case is remanded for further proceedings on that claim. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

(Division No. 3) Friday, June 4, 2010 107,657 — Capital Equity Funding Corporation, Plaintiff, W.M. Specialty Mortgage, LLC, Plaintiff, v. David Littleton and Brenda Littleton, Defendants, Fremont Investment & Loan, Defendant, NLCO, Intervenor, Brenda Littleton, Third-Party Plaintiff/Appellant, v.

Countrywide Home Loans, Inc., Third-Party Defendant/Appellee, and Countrywide Insurance Group, Third-Party Defendant. Appeal from a judgment of the District Court of Tulsa County, Hon. Daman H. Cantrell, Trial Judge.

Appeal from the trial court’s denial of the homeowner’s motion for new trial and its grant of summary judgment in favor of the mortgage holder. When the homeowner failed to maintain insurance coverage on the residential property as required by the note and mortgage, the holder of the note and mortgage placed an insurance policy on the property, pursuant to the terms of the mortgage. After the property sustained a loss to vandalism, the insurance company paid the proceeds to the named insured under the forced policy — the mortgage holder — and not to the homeowner.

Homeowner sued for conversion of the insurance proceeds and also for breach of a voluntary forbearance agreement entered into with the mortgage holder. The homeowner admits she failed to make payments under the forbearance agreement. Thus, we find, based on the uncontroverted material facts, the trial court

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was correct as a matter of law in finding the mortgage holder entitled to summary judgment in its favor on both the conversion claim and the breach of contract claim. The motion for new trial was properly denied. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, C.J., and FISCHER, P.J., concur.

107,567 — Gary Honeycutt, Plaintiff/Appellee, vs. Travis David; Elbert D. Benson; Rose Wright; Vonda Benson; Pearlie Benson; and Alpha L. Benson, Jr., Defendants/Appellants, Wilma Walton; Henry Williams; Hattie Williams; George Wilson; Sarah G. Wilson; Sarah Wilson; Henry Buckner; Mattie Buckner; Sam Wilson; Hugh Hale; Mrs. H. J. Johnson; Havana Butler; Susie McFarland; Mandy Hathorne; Mattie Choate; B.D. Jordan; Sweetie M. Ruff; Charlie Fisher; Katie Fisher; Nina Huntley; Nancy Ana Williams; John Foreman; Bertha Ray; Dee Ray; Bertha Benson; Luvenia Lewis; Alpha Lee Benson; Melvin L. Reid, Sr.; Rosa Lee Benson; Sherry Robinson; Larry Turner; Nina Turner; Sherrie Robinson; Kenneth Robinson; Stephen Robinson; Etta Robinson; Henry Robinson, Jr.; Roseann Wilson; L. Walton; Larry Walton, Jr.; Londell Bills and Katrina Bills; Kathryn Dennis Jordan; Eugene Jordan and Robert Jordan; the Unknown Spouses of Said Defendants, If Living, and If Dead, Their Unknown Heirs, Executors, Administrators, Devisee, Trustees, Successors, and Assigns; the County Treasurer of Choctaw County, State of Oklahoma; and the Board of County Commissioners of Choctaw County, Defendants. Appeal from the District Court of Choctaw County, Oklahoma. Honorable James R. Wolfe, Judge.

Appellants seek review of the trial court’s order granting judgment to Plaintiff on his claim to quiet title. In this appeal, Appellants challenge the trial court’s findings as unsupported by the evidence, and argue the trial court’s judgment is wholly inequitable. On the evidence, the trial court concluded that, at the time of the tax resale in 2003 to Plaintiff’s predecessor, there were taxes due, that, “although the legal description on the tax deed and the deed to [Plaintiff] differs from that used in the legal publication, the subject property was indeed that which was in said publication and the tax deed to [Plaintiff’s predecessor] and the quit claim deed to [Plaintiff] did indeed convey the subject property to [Plaintiff],” and accordingly, granted judgment quieting title to Plaintiff. Having reviewed the record, we cannot say the trial court’s judgment is so contrary to the clear weight of the evidence as to warrant our Vol. 81 — No. 17 — 6/19/2010

appellate interference with the trial court’s conclusion. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

106,860 — (Comp. w/106,881) William W. Choate, John Irvan Choate, The William F. Moritzky Family Trust, The Wesley House Irrevocable Trust, and Creditors of Interest, Plaintiffs/Appellants, vs. Honorable Chayne Fisher, D.O., Mayor, the City of Seminole, Oklahoma, and Unidentified Defendants, Defendants/ Appellees. Appeal from the District Court of Seminole County, Oklahoma. Honorable Gary Snow, Judge. Appellants appeal from the trial court’s order dismissing their Governmental Tort Claims action against Appellees (City and Mayor). Appellants contend the trial court erred in treating their lawsuit as subject to the Governmental Tort Claims Act. Appellants specifically referenced their tort claim notice to City and their alleged compliance with the Act in filing their lawsuit. The trial court properly treated Appellants’ petition as subject to the Act. Appellants next attack the merits of the trial court’s dismissal order. With respect to any potential liability on the part of Mayor, Appellants alleged Mayor ratified the demolition of their building by approving payment to the demolition contractor. Appellants advance no other argument that Mayor’s actions fell outside his “scope of employment. Even if Mayor’s ratification of the demolition contract was considered tortious, an employee of a political subdivision is relieved from private liability for tortious conduct committed within the scope of employment. Mayor was properly dismissed from this action. We reject Appellants’ claims against City. The time limits of the Governmental Tort Claims Act are not vague or subject to limitless discretion. It is undisputed City timely received Appellants’ notice of tort claims on January 8, 2008, exactly one year after their building was razed. Their claim was deemed denied on April 7, 2008, ninety (90) days after the claim was filed with City, because City never acted upon Appellants’ notice. Appellants filed their suit more than 180 days after April 7, 2008. Appellants contends the court erred in denying (1) their application for change of venue, (2) a motion for an order regarding the Oklahoma Constitution, (3) an application for a grand jury and (4) an application for an emergency protective order. Appellants cite no relevant authority for the trial court’s jurisdiction to rule on their post-trial pleadings following dismissal of their suit. Upon de novo review, we hold Appellants failed to state a legally cognizable claim. The judgment of the

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trial court is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J. and Mitchell, J., concur.

Opinion by Bell, V.C.J.; Joplin, P.J. and Mitchell, J., concur.

106,881 — (Comp. w/106,860) William W. Choate, John Irvan Choate, The William F. Moritzky Family Trust, The Wesley House Irrevocable Trust, and Creditors of Interest, Plaintiffs/Appellants, vs. Honorable Chayne Fisher, D.O., Mayor, The City of Seminole, Oklahoma, and Unidentified Defendants, Defendants/ Appellees. Appeal from the District Court of Pontotoc County, Oklahoma. Honorable Thomas Landrith, Judge. Appellants appeal from the trial court’s order dismissing their Governmental Tort Claims action against Appellees (City and Mayor). Appellants contend the trial court erred in treating their lawsuit as subject to the Governmental Tort Claims Act. Appellants specifically referenced their tort claim notice to City and their alleged compliance with the Act in filing their lawsuit. The trial court properly treated Appellants’ petition as subject to the Act. Appellants next attack the merits of the trial court’s dismissal order. With respect to any potential liability on the part of Mayor, Appellants alleged Mayor ratified the demolition of their building by approving payment to the demolition contractor. Appellants advance no other argument that Mayor’s actions fell outside his “scope of employment.

Even if Mayor’s ratification of the demolition contract was considered tortious, an employee of a political subdivision is relieved from private liability for tortious conduct committed within the scope of employment. Mayor was properly dismissed from this action. We reject Appellants’ claims against City. The time limits of the Governmental Tort Claims Act are not vague or subject to limitless discretion. It is undisputed City timely received Appellants’ notice of tort claims on January 8, 2008, exactly one year after their building was razed. Their claim was deemed denied on April 7, 2008, ninety (90) days after the claim was filed with City, because City never acted upon Appellants’ notice. Appellants filed their suit more than 180 days after April 7, 2008. Appellants contends the court erred in denying (1) their application for change of venue, (2) a motion for an order regarding the Oklahoma Constitution, (3) an application for a grand jury and (4) an application for an emergency protective order. Appellants cite no relevant authority for the trial court’s jurisdiction to rule on their post-trial pleadings following dismissal of their suit. Upon de novo review, we hold Appellants failed to state a legally cognizable claim. The judgment of the trial court is AFFIRMED.

107,156 — Betty West, Plaintiff/Appellant, vs. Steve Spencer d/b/a Spencer’s Smokehouse & Barbeque, and D. Wayne Brewer d/b/a 23 Post Plaza Company, Defendants/ Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Carolyn Ricks, Judge. In this premises liability action, Appellant appeals from orders granting summary judgment to Appellees, (“Spencer” and “Brewer”). Spencer is the owner of the restaurant and Brewer is the property owner.

The threshold question for any negligence action is whether the defendant owed a duty to the plaintiff. Appellees’ reliance on the “trivial defect doctrine” is misplaced. The “trivial defect doctrine” is applicable only to municipalities and applies a different standard than that applicable to private or non-governmental defendants. As the property owner, Brewer had a duty to invitees to use reasonable care to maintain the sidewalk. Brewer presented no evidence to suggest the expansion joint in question was a standard size or within acceptable limits in the construction industry. Summary judgment was improperly granted in favor of Brewer. The trial court granted summary judgment to Spencer finding no duty was owed to Appellant, because the sidewalk in question was not under Spencer’s control and Spencer had no duty to maintain the sidewalk.

Pursuant to the Lease Agreement, Spencer’s only duty was to keep the sidewalk clean.

Brewer specifically retained control of the sidewalk and contractually agreed to keep it in good repair. We find no error in the trial court’s grant of summary judgment to Spencer.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

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Friday, June 11, 2010 106,901 — Angela Hudson, Plaintiff/Appellant, vs. Jerry Fisher, an individual, and Richard Harris, d/b/a Harris Contractors, Defendants, MRI Specialists of Tulsa, Inc., Appellee.

Appeal from the District Court of Cherokee County, Oklahoma. Honorable Mark Dobbins, Judge. Plaintiff/Appellant Angela Hudson seeks review of the trial court’s order directing her attorney to refund a portion of his attorney’s fees to satisfy a claim by one of Plaintiff’s medical lien holders. Plaintiff challenges the trial court’s order as affected by errors of law and fact. Plaintiff’s attorney’s fee lien is superior only to funds in which junior lienholders

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have no interest. In the present case, there is only one fund to which all the lien claimants are entitlement to a share. Further, Willis confessed he did not adequately notify Appellee of his Motion to Allocate, and the trial court held Willis misrepresented the adequacy of notice given to Appellee. For lack of notice, Appellee was deprived of its right to appear and assert its claim to a portion of the settlement proceeds. The rights of Appellee could not be terminated without notice. Given this lack of notice, we hold the trial court, in the proper exercise of its equitable powers, vacated the initial division, and recaptured the funds previously paid out to Willis as attorney’s fees to satisfy the claim of Appellee. Having reviewed the record, and under the circumstances of this case, we cannot say the trial court abused its discretion. AFFIRMED. Opinion by Joplin, P.J.; Mitchell, J., concurs; Bell, V.C.J., concurs in part and dissents in part.

106,974 — W. Earl Stone, Plaintiff/Appellant, vs. Robert Hendricks and Terri Hendricks, Defendants/Appellees. Appeal from the District Court of Nowata County, Oklahoma. Honorable Carl G. Gibson, Judge. Appellant appeals from the trial court’s judgment awarding him damages and denial of attorney fees. Appellees sold a 1978 Ford Thunderbird Diamond Jubilee to Appellant for $13,000.00, but there was a failure of delivery. The court found the parties entered into a bailment agreement which was beached by both parties. Appellees breached the bailment when they sold the vehicle to a third party and Appellant breached the bailment when he failed to remain in contact with Appellees. The court awarded Appellant $5,800.00 in damages, which was the amount of sales proceeds received by Appellees from a third party purchaser, but offset this amount by $1,200.00 for Appellees’ damages. The court ordered each party to pay their own attorney’s fees. Appellant contends he should have been awarded damages in the amount of $13,000.00, not the amount of sale proceeds received by Appellees from the third party purchaser. We reject Appellant’s contention that he is entitled to a refund of the purchase price due to a lack of delivery. Instead, the only disputed issue concerns the duration and terms of the parties’ agreement to store the vehicle. At worst, Appellees were forced to store the vehicle for more than a couple of weeks. At best, Appellant agreed to pay Appellees $300.00 per month for storage. The court correctly utilized the third party sales price to calculate the damage award.

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prudently preserved and protected the vehicle from loss and damage by storing the vehicle in their climate controlled garage for 10 months.

This deprived Appellees of the use and benefit of their garage. Appellant’s action was not one to recover for labor or services performed.

Appellant was not entitled to recover an award for attorney fees. The trial court’s judgment is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur.

(Division No. 4) Thursday, June 3, 2010 107,622 — Opal Main, Petitioner/Appellee, v. Kevin D. Main, Respondent/Appellant.

Kevin D. Main (Father) appeals from a journal entry of the District Court of Noble County, Hon. Dan Allen, Trial Judge, which registered a California child support order in Oklahoma.

Father asserts (1) California lacked personal jurisdiction to issue the order, (2) California law applies to the issues presented, (3) the order is one of reimbursement, and (4) the equitable principles of laches and estoppel bar registration and enforcement of the order.

Applying the provisions of the Uniform Interstate Family Support Act, we find the trial court correctly registered the child support order in Oklahoma. Father’s contacts with California were sufficiently related to the child support action such that California’s exercise of personal jurisdiction over Father comports with the requirements of due process. We decline to address the issue of reimbursement as Father failed to cite any authority in support of this assertion of error. Lastly, the trial court did not abuse its discretion in refusing to apply estoppel or laches to eliminate or reduce the child support arrearages. The mere passage of time in insufficient to invoke the doctrine of laches and there is nothing unjust about requiring Father to pay child support at the level set by the court. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

107,200 — Express Services, Inc. d/b/a Express Personnel Services, Plaintiff/Appellee, v. Jackson Consulting, Inc., Defendant/Appellant. Appeal from an order of the District Court of Cleveland County, Hon. William C. Hetherington, Jr., Trial Judge, granting default judgment to Express Services (Express). The default judgment was granted during the pendency of a prior appeal in the case. In Appeal No. 106,627, this Court found the trial court did not have subject matter jurisdiction and remanded

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the case for dismissal. For the same reasons set forth in the opinion in Appeal No. 106,627, and because the opinion in that appeal dismissed the case for want of jurisdiction, the default judgment is void. Defendant’s motion for fees and costs in this appeal is granted. The case is remanded for a Burk hearing consistent with the opinion and order filed in Appeal No. 106,627. VACATED AND REMANDED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

notice of the termination or adoption proceedings, a realistic opportunity to appear, and the right to participate in a meaningful manner.

Because Pjesky was denied his constitutional due process, the three month statutory time limit imposed by § 7505-7.2(A)(2) does not bar his challenge. We find no abuse of discretion by the trial court. Accordingly, the trial court’s order is affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Monday, June 7, 2010

Tuesday, June 8, 2010

107,269 — Quinyon L. Washington, Plaintiff/ Appellant, v. Bob Howard Chevrolet, Defendant/Appellee/Third Party Plaintiff, Bank of Oklahoma, Defendant, Brenda Gaines, an individual, Third-Party Defendant. Appeal from an order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, denying Plaintiff’s motion to reconsider an earlier ruling granting Bob Howard Chevrolet’s (BHC) motion for summary judgment. After he was denied a security clearance and promotion in the US Air Force due to an unfavorable credit report, Plaintiff filed suit alleging libel per se against BHC and the Bank of Oklahoma (BOK). A fraudulent application for a car loan in his name, and the subsequent default on loan payments, was the basis for the unfavorable credit report. We affirm the trial court’s order denying Plaintiff’s motion to reconsider the trial court’s earlier order granting BHC summary judgment.

AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

108,095 — Roberta Ganzer, Plaintiff/Appellant, v. Vici Church of Christ, Defendant/Appellee. Appeal from the District Court of Dewey County, Hon. Rick Bozarth, Trial Judge. The trial court plaintiff, Roberta Ganzer (Ganzer), appeals an order granting summary judgment to the defendant, Vici Church of Christ (Church).

Ganzer owns a residence adjacent to Church.

She purchased the property in 1999. In 1966, Church acquired its property and began construction of its church facilities. As a part of that construction, Church caused to be built a retaining wall on the east side of its property, adjacent to Ganzer’s property. Ganzer claims that the wall was negligently constructed. Ganzer filed her lawsuit on February 23, 2009.

Church denied liability and pled that the statutes of limitation and repose barred the claim.

After judgment, Church moved for attorney fees and costs. Church, by its summary judgment motion, demonstrated that the statute of repose, 12 O.S.2001, § 109, and the statute of limitation, 12 O.S.2001, § 95(A)(3) each applied to bar the action. Then, the burden shifted to Ganzer to show that a factual controversy existed to justify a trial. Ganzer did not do so and the trial court did not err in granting summary judgment. Ganzer’s argument that 12 O.S.2001, § 940 requires a finding of bad faith or frivolous filing before attorney fees may be awarded has no merit. Ganzer has not challenged or preserved a record for any other issue.

The costs awarded were allowable court costs.

Therefore the summary judgment and the award of fees and costs are affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

107,360 — In the Matter of the Adoption of T.C.P., a minor child. Alan R. Woodland, Appellant, v. David Pjesky, Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Bill Graves, Trial Judge, which vacated 1) a 2004 order terminating David R. Pjesky’s (Pjesky) parental rights in the minor child TCP; and 2) a 2004 decree of adoption of TCP by Woodland. The trial court found, and the record supports, Mother and Woodland’s actions induced the court into assuming jurisdiction over the termination and adoption proceedings through fraud. Due to Mother and Woodland’s fraudulent actions, Pjesky did not receive due process, i.e., he did not receive

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Vol. 81 — No. 17 — 6/19/2010

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OKC ATTORNEY HAS CLIENT INTERESTED in purchasing producing and non-producing, large or small, mineral interests. For information, Contact Tim Dowd, 211 N. Robinson, Suite 1300, OKC, OK 73102, (405) 2323722, (405) 232-3746 – fax, timdowd@eliasbooks.com.

APPEALS AND BRIEF WRITING. In research, intuitive and indefatigable. In composition, equally adept at the incisive and the incendiary. Prior experience as an appellate clerk. George J. Wright, Stuart Clover Duran & Thomas, LLP, P.O. Box 1928, Shawnee, OK 74801, (405) 275 0700, george@scdtlaw.com.

LITIGATION SUPPORT/TRUSTEE – I follow the money and produce easy-to-understand, succinct reports from spreadsheets containing voluminous detail and analyses, including tax analysis; provide expert witness testimony to prove your client’s damages. 30 years accounting experience in real estate, oil and gas, taxation, cash flow and asset management; 17 years experience as court-appointed trustee. References.

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POSITIONS WANTED ATTORNEY WITH EXPERIENCE IN SOCIAL SECURITY DISABILITY CLAIMS seeks to join small to mid-size firm in Northeast Oklahoma with diverse practice. Please respond via e-mail: tulsassdiattorney@gmail.com.

POSITIONS AVAILABLE DOWNTOWN OKC AV FIRM HAS IMMEDIATE OPPORTUNITY for 7+ year attorney with experience in real property purchase and sale, leasing and related loan transactions. Compensation commensurate with skill set. Strong communication skills, academics and writing skills are a must. Must be a motivated selfstarter with good organizational and people skills. All replies held in confidence. Please send resume to “Box Y,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

DOWNTOWN OKLAHOMA CITY AV RATED FIRM has immediate opening for attorney with 3-8 years experience in commercial litigation and bankruptcy.

Compensation commensurate with experience; excellent benefits. Send resume with writing sample to gbryant@mswerb.com.

LEGAL ASSISTANT/RECEPTIONIST NEEDED for South OKC Law office. Applicant will provide administrative support to attorneys and staff members. Position requires strong organizational and interpersonal skills. Managing client demands is a must. Experience with a multiline phone system is preferred. Salary is commensurate with experience. Please fax resume and references to (405) 692-7670 or by e-mail to kyle@bmclawok.com.

THE LAW FIRM OF PIERCE COUCH HENDRICKSON BAYSINGER & GREEN LLP is accepting resumes for an associate attorney with a minimum of five years experience in insurance defense and insurance coverage/bad faith litigation. Please send resumes to P.O. Box 26350, Oklahoma City, OK 73126.

A CONTRACTS MANAGER WANTED! Melton Truck Lines, a premier transportation company, has an immediate opening for a Contracts Manager. Duties include reviewing contract language, tracking contracts, negotiating terms, resolving customer issues, analyzing profitability, and managing special projects. Paralegal or extensive contracts experience required. Bachelor’s degree & 5 years of Contracts exp. required. Law Degree preferred. Fax resume to: 918-439-2950 or email to HR@meltontruck.com.

THE LAW FIRM OF HOLDEN & CARR SEEKS EXPERIENCED LITIGATORS for the firm’s Oklahoma City & Tulsa practice. With offices in Tulsa, Oklahoma City, and Dallas, Holden & Carr is an insurance defense firm with a broad client base and a strong, growing presence regionally. The firm seeks partner-level attorneys with 10 years of experience or more in litigation and, in particular, jury trial practice. Proven track record in business development required. Those seeking to ascend to leadership and build on the foundation for the firm’s operations are encouraged to inquire. The firm strives to be the best and requests nothing less from its members, therefore strong trial practices skills are required. Salary to be commensurate with experience. All applications will be kept in the strictest confidence. To inquire, please contact JohnWelch@HoldenLitigation.com.

ESTABLISHED OKLAHOMA CITY LAW FIRM seeks experienced receptionist/legal secretary to handle front desk for a busy office. At least two years experience at an Oklahoma law firm is a mandatory requirement. Salary is negotiable based on experience. Fax resume to Arnett Law Firm at (405) 767-0529.

FORWARD-THINKING, TECH-SAVVY FIRM SEEKS skilled legal assistant, or attorney with 1 – 5 years experience, in banking, transactional and/or real-estate areas. Temp to perm, of-counsel, project basis, employee, all possible. Project deadlines are key, working hours are flexible, telecommuting optional. Great work environment. Competitive compensation package is negotiable. Send resume and cover letter explaining interest to Carrie Palmer, Palmer|Wantland, by e-mail only at lawyer151@gmail.com.

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LOCAL COMPANY SEEKS ATTORNEY with extensive experience in complex product liability litigation. This individual will provide legal counsel for lawsuits and develop company policies on legal matters. Must be a graduate of an accredited law school with minimum 10 years experience and be admitted into the state bar.

Must also be knowledgeable on federal, state and local laws, and have the ability to analyze case law. Please e-mail resume to marcy.crawmer@adeccona.com.

FlightSafety International Simulation Systems FlightSafety International, a world leader in supplying flight simulators for corporate, military and commercial aircraft, currently has the following position open for qualified candidates.

Contracts Compliance Manager In coordination with Corporate legal, responsible for contractual requirements to ensure compliance with appropriate laws and regulations and corporate policies including but not limited to; Intellectual Property, Export Control and Foreign corrupt practices.

J.D. degree with a minimum of 5 years experience or equivalent combination of experience and education.

Apply online at www.flightsafety.com requisition # 8336 or in person at FlightSafety International 2700 North Hemlock Circle, Broken Arrow, OK 74012. An Equal Opportunity Employer M/F/V/D. PARALEGAL WITH EXPERIENCE handling social security disability cases needed for busy Tulsa office. Pay commensurate with experience. Bonus for bilingual ability. Send resume to “Box E,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. All replies kept confidential.

GROWING DOWNTOWN LAW FIRM SEEKS EXPERIENCED ATTORNEY to assist with civil litigation, medical malpractice and insurance defense practice.

5-7 years experience required. Salary is commensurate with experience plus excellent benefits package. Please send resume and two recent writing samples to “Box U,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

AV RATED DOWNTOWN OKC INSURANCE DEFENSE LITIGATION FIRM seeks associate with 2 - 5 years experience. Salary commensurate with experience.

Please send resumes to “Box H,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

DOWNTOWN TULSA AV RATED FIRM SEEKS ASSOCIATE with 3 to 10 years civil litigation experience.

Firm offers an excellent compensation package. Salary is commensurate with experience. Strong academic record required. Please send resume, references, writing sample and law school transcript to “Box Z,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

BUSINESS LITIGATION ATTORNEY — OKLAHOMA CITY: Well-established OKC firm seeking stand-up trial attorney; 8-10+ years commercial litigation and federal court experience required. Very lucrative comp. plan. Please e-mail Word Resume, trial exp. and salary requirements to: tamar@tmsrecruiting.com.

THE SECRETARY FOR THE COMMISSIONERS OF THE LAND OFFICE is hiring one legal secretary. See www. clo.state.ok.us for a full job description. Experience in civil litigation, personnel, collections or oil and gas would be preferred. Offers of employment are contingent upon an applicant’s successful security screening results. The Land Office is an equal employment opportunity employer. Cover letter, resume and writing sample are required as part of the application process and must be e-mailed to: guy.hurst@clo.state.ok.us.

CITY OF TULSA POLICE LEGAL ADVISOR: City of Tulsa Legal Department is seeking applicants for Senior Assistant City Attorney assigned to serve as legal advisor to Tulsa Police Department. Interested candidates can get additional information and apply online at www.cityoftulsa.org/jobs.

OIL AND GAS ATTORNEY - Samson, one of the largest independent exploration and production companies in the oil and gas industry, is seeking to fill one or more Attorney positions in its headquarters in Tulsa, Oklahoma. Such positions provide a broad range of legal services to the company. Such services center upon the exploration and production activities of the company including lease analysis, poolings, unitizations, easements, surface damages, geophysical operations, title work, acquisitions, and a broad range of oil and gas contracts and related issues. Applicants should have 3 to 10 years of contractual, business, and/or litigation experience, either in-house or with a recognized law firm, with oil and gas experience being strongly preferred. Applicants must be a current member of the Oklahoma, Texas, Arkansas, Louisiana or Colorado Bar Associations. Samson offers an excellent compensation package, comprehensive and competitive benefits, and the opportunity to participate in an incentive bonus program. Qualified candidates are asked to apply online at www.samson.com.

ESTABLISHED TULSA AV RATED INSURANCE DEFENSE FIRM seeks associate attorney to handle motion practice and appeals for district court and workers compensation. Salary is commensurate with level of experience. Benefit package includes health & life insurance, short term/long term disability and 401K with match.

Please send resume to “Box W,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

Vol. 81 — No. 17 — 6/19/2010

LEGAL ASSISTANT/PROJECT MANAGER needed for rapidly growing OKC Company. The position requires applying knowledge to process project documents, ensure contract and court mandated compliance, and manage client demands. Applicant will also provide administrative support to in-house attorneys and staff members. Must have strong work ethic, be self-motivated, detail oriented, highly organized and have the ability to work independently and as part of a team. Proficiency in Word, experience with insurance and/or receiverships, and minimum of 3 years legal experience preferred. Salary is commensurate with experience. Please e-mail resume and references to hr@theasg.net.

KIRK & CHANEY, A MIDSIZE AV DOWNTOWN OKC FIRM, seeks experienced attorney to assist with commercial litigation, family law and insurance defense practice. 4 - 7 years experience required. Some prior experience in insurance defense is essential. Salary is commensurate with experience. Please send resume, law school transcript and two recent writing samples to Kirk & Chaney, attn: Ms. Chris Leigh, 101 Park Avenue, Suite 800, Oklahoma City, OK 73102.

The OBA seeks a publications specialist for the Continuing Legal Education Department

College degree required Legal or paralegal experience preferred For details go to www.okbar.org

The Oklahoma Bar Journal

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• AV® Martindale-Hubbell Rating, the highest rating for ethics and competency • 38 years experience in handling only personal injury cases • Practice limited to Catastrophic Injuries • Many successful multi-million dollar verdicts and settlements • Recognized on national television in the U.S. and Great Britain • Recognized in Time, Star, TWA in Flight, and other magazines • Recognized in newspapers in the U.S., Japan, and other countries • Licensed to practice in Oklahoma, Texas, Michigan and Pennsylvania • Member Oklahoma Trial Lawyers Association and American Association for Justice (formerly Association of Trial Lawyers of America)

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The Oklahoma Bar Journal

Vol. 81 — No. 17 — 6/19/2010

Vol. 81 — No. 17 — 6/19/2010

The Oklahoma Bar Journal

1479