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Kirkwood v. State

Court of Criminal Appeals of Oklahoma

April 12, 2018

AUSTIN LEE KIRKWOOD, SR, Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE KELLY GREENOUGH, DISTRICT JUDGE

          STEVEN VINCENT ATTORNEY AT LAW COUNSEL FOR DEFENDANT

          SARAH McAMIS TANYA WILSON ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR THE STATE

          NEILSON LEA COUNSEL FOR APPELLANT

          MIKE HUNTER OKLAHOMA ATTORNEY GENERAL JENNIFER B. WELCH ASSISTANT ATTORNEY GENERAL COUNSEL FOR APPELLEE

          SUMMARY OPINION

          HUDSON, JUDGE

         ¶1 Appellant, Austin Lee Kirkwood, Sr., was tried by a jury and convicted in Tulsa County District Court, Case No. CF-2015-1911, for the crime of Child Abuse by Injury in violation of 21 O.S.Supp.2014, § 843.5 (A). The jury recommended a sentence of twelve (12) years imprisonment. The Honorable Kelly Greenough, District Judge, sentenced Kirkwood in accordance with the jury's verdict. [1] Kirkwood was also ordered to pay various costs and fees. Kirkwood now appeals, raising two (2) propositions of error before this Court:

I. THE ADMISSION OF IMPROPER CHARACTER EVIDENCE AND EVIDENCE OF "BAD ACTS" DEPRIVED MR. KIRKWOOD OF THE RIGHT TO A FAIR TRIAL; and
II. ALTERNATIVELY, THE TRIAL COURT'S DECISION TO ADMIT THE EVIDENCE DISCUSSED IN PROPOSITION I FOR ANY REASON RELATED TO BURKS WITHOUT REQUIRING THE STATE TO SPECIFY WHICH EXCEPTION THAT EVIDENCE APPLIED TO WAS A MISAPPLICATION OF THE LAW.

         ¶2 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties' briefs, we find that no relief is required under the law and evidence. Appellant's Judgment and Sentence is therefore AFFIRMED.

         I.

         ¶3 Appellant contends that the trial court abused its discretion by allowing evidence of prior bad acts to be admitted at trial. Appellant's claim primarily centers on the introduction of evidence relating to a violent domestic incident that occurred between Appellant and the victim's mother in September of 2015--approximately eight months after the charged offense. [2] "This Court reviews a trial court's decision to allow introduction of evidence of other crimes for an abuse of discretion." Neloms v. State, 2012 OK CR 7, ¶ 12, 274 P.3d 161, 164. "An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented." Pullen v. State, 2016 OK CR 18, ¶ 4, 387 P.3d 922, 925.

         ¶4 On March 9, 2016, the State provided written notice of its intention to offer evidence of other crimes pursuant to 12 O.S.2011, § 2404 (B) and related case law. Therein, the State sought to introduce, inter alia, evidence about a domestic altercation between Appellant and Ledbetter that occurred in September of 2015. During this clash, Appellant's violent behavior included choking Ledbetter, punching her multiple times in the head, dragging her by her hair, and stomping on her. An in camera hearing was conducted on April 5, 2016--the day before Appellant's trial commenced. During the hearing, the prosecutor argued the evidence was being offered "to show a lack of accident or mistake" in response to Appellant's defense "that this was all an accident, this wasn't forceful". At the conclusion of the hearing, the trial court granted the State's request to present this evidence. The trial court determined this evidence was relevant and admissible to show lack of accident or mistake. [3]

         ¶5 Evidence of other crimes may be admissible to establish specific things, including absence of mistake or accident--the purpose for which the evidence was admitted in this case. 12 O.S.2011, § 2404 (B); Marshall v. State, 2010 OK CR 8, ¶ 38, 232 P.3d 467, 477; Lott v. State, 2004 OK CR 27, ΒΆ 40, 98 P.3d 318, 334. Evidence of other crimes must be (a) probative of a disputed issue of the charged crime; (b) there must be a visible connection between the crimes; (c) the evidence must be necessary to support the State's burden of proof; (d) proof of the evidence must be clear and convincing; (e) the probative value of the evidence must outweigh its prejudicial effect; ...


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