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Lowery v. State,
2008 OK CR 26 (Okl.Cr., September 5, 2008): "Bad Acts": Lowery was convicted in Tulsa County by a jury in the courtroom of the Hon. Dana L. Kuehn of multiple counts including Burglary in the First Degree, Indecent Exposure, Lewd Molestation, and Assault and Battery. The principal issue is the introduction of a "separate and serious assault on a child" as "other crimes" evidence. The evidence was admitted because it was relevant as to identity and motive, although on appeal the State argued it was relevant as to common scheme or plan and absence of mistake. HELD: "We conclude that the R.P. other crimes evidence was not admissible under any of the exceptions to the rule against other crimes evidence and that the trial court committed plain error in admitting this evidence." However, the Court held that the evidence was harmless as to guilt/innocence, but affected the sentence. Thus, his sentences are modified. NOTE: This is another case where trial counsel "vigorously challenged this" evidence during the in-trial hearing on its admissibility, but failed to renew the objection at the time it was actually offered at trial; thus, plain error review is all that is available. NOTE: This is another case where the Court cites 12 O.S. 2404(B) to resolve the case and does not mention the new statutes that could control this issue found at 12 O.S. 2413 & 2414. NOTE: This opinion does not appear on the Court's web site for some reason, although I received it from the Court via e-mail. AND NOTE: Judge Lumpkin does not like extensive discussions in footnotes and, in a twist of irony, he penned this footnote to his concurring in part/dissenting in part opinion: "My colleague's extensive footnotes seeking to justify the deviation I have noted seems to fit William Shakespeare's great line from Hamlet, Act III, Scene II, "The [gentlemen] protests too much, methinks."
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