APPEAL FROM THE DISTRICT COURT OF OSAGE COUNTY HONORABLE M.
JOHN KANE IV, DISTRICT JUDGE
ERICSON ATTORNEY FOR DEFENDANT
VIRGINIA SANDERS ATTORNEY FOR APPELLANT
KYLE ALDERSON ASSISTANT DISTRICT ATTORNEY ATTORNEY FOR THE
HUNTER ATTORNEY GENERAL JENNIFER B. WELCH ASSISTANT ATTORNEY
GENERALATTORNEYS FOR APPELLEE
Ike Frank Nicholson, Jr., Appellant, was tried by jury and
convicted of second degree murder, in violation of 21
O.S.2011, § 701.8 (1), in the District Court of Osage
County, Case No. CF-2015-340.  The jury sentenced
Appellant to life imprisonment. The Honorable M. John Kane
IV, District Judge, pronounced judgment and sentence
accordingly.  Mr. Nicholson appeals.
Appellant and his girlfriend, Carrie Lira, traveled from
Bethany to Tulsa in late October, 2015, hoping to locate
Carrie's missing sister, Kelli. They learned from Antwuan
Adamson that Vallon Broadus might be holding Kelli against
her will. On the evening of October 21, Appellant, Carrie
Lira, and Antwuan Adamson met at Megan Burkett's
residence in Tulsa, expecting that Vallon Broadus might be
there with Kelli. Neither Broadus nor Kelli were there when
they arrived. They parked their car around the corner, and
sat waiting in Antwuan Adamson's car just down the street
from the residence.
Within an hour or two, Vallon Broadus drove up to
Burkett's house in a red car and parked in the driveway.
Antwuan Adamson had gone inside the Burkett residence before
Broadus arrived, and saw some of the incident that followed
on a home video surveillance monitor.  By Appellant's
own account, he got out of a vehicle and quickly approached
the car driven by Vallon Broadus, carrying a 12 gauge shotgun
and yelling for Kelli to "get out of the car!"
Carrie Lira began driving Adamson's car toward the
driveway to block Broadus's exit.
According to Appellant, the red car suddenly lurched backward
in his direction, spinning its tires in the gravel, requiring
him to step to the left side to avoid being hit. Appellant
later admitted to police that he pointed the shotgun's
attached flashlight into the driver's eyes as the car
went by. He also admitted that the shotgun discharged as he
pointed it at the driver, sending several pellets through the
driver's windshield, striking and killing Vallon Broadus.
The car backed into a large post and stopped.
After seeing part of the incident on camera, Antwuan Adamson
quickly walked outside the house. There he saw the Appellant
lowering the barrel of the shotgun from a shooting position.
Appellant was standing about ten feet to the front side of
the red car. Adamson got into his car. Appellant, still
carrying the shotgun, jumped in the back seat and told
Adamson to drive him around the corner. He drove to a nearby
apartment, where Appellant and Carrie Lira got out. Adamson
said Appellant took the shotgun with him. Adamson drove away.
The shotgun was never recovered. Appellant and Carrie Lira
were later arrested in Oklahoma City.
In a subsequent recorded interview with investigators, which
was played for the trial jury, Appellant stated as
Broadus's car came toward him, "I think I shot him.
I think I shot the windshield." He denied intending to
kill Broadus, saying he wanted to intimidate him and make him
cooperate in efforts to find Carrie's sister, Kelli.
After the shooting, Appellant and Carrie got in Adamson's
car, rode with Adamson around the corner to their own car,
and escaped the scene. Appellant essentially claimed he
committed an accidental shooting, and fled in a panic because
of his past run-ins with the law. The recording also showed
that Appellant declined the investigator's request that
he provide a DNA sample for comparison. Further facts will be
discussed as necessary to the resolution of the issues on
In Proposition One, Appellant argues that the trial court
erred in finding prosecution witness Antwuan Adamson
unavailable to testify at trial and admitting the transcript
of his preliminary examination testimony. He also argues the
admission of the transcript violated his constitutional right
to confrontation. This Court reviews the trial court's
finding of a witness's unavailability for abuse of
discretion. Mathis v. State, 2012 OK CR 1, ¶
20, 271 P.3d 67, 75. An abuse of discretion is a clearly
erroneous conclusion, contrary to the logic and effect of the
facts presented. Pullen v. State, 2016 OK CR 18,
¶ 4, 397 P.3d 922, 925.
We find that the trial court's finding that Adamson was
unavailable was not clearly erroneous, and admission of the
transcribed testimony was not an abuse of discretion. Because
the witness was unavailable, and Appellant had a prior
opportunity to cross-examine the witness at preliminary
examination, admission of the transcript at trial did not
violate Appellant's right to confrontation.
Mathis, 2012 OK CR 1, ¶ 19, 271 P.3d at ...