# Underwood v. State

> Court of Criminal Appeals of Oklahoma · March 25, 2011 · 252 P.3d 221

URL: https://www.frixlaw.com/law-library/cases/9775098

## Case

- **Full name:** Kevin Ray UNDERWOOD, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** March 25, 2011
- **Citations:** 252 P.3d 221; 2011 OK CR 12; 2011 Okla. Crim. App. LEXIS 11; 2011 WL 1129582
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Johnson, Lewis, Smith, Lumpkin
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775098

## How later opinions describe it (automated extraction)

- stating "[s]uch a motion must in any event be filed within one year of the imposition of Judgment and Sentence."
- holding decision to admit or exclude evidence is reviewed for abuse of discretion

## Opinion text

LUMPKIN, Judge:
CONCUR IN
RESULT.
T1 I concur in the Court's decision to affirm the judgment and sentence in this case and find the sentence of death supported by the law and evidence.
2 However, I do have concerns about the syntax used in describing our appellate review. As to Proposition 1, the opinion states "we review the district court's factual findings for clear error ..." when, in fact, on appeal, this Court reviews a trial court's ruling on the facts for an abuse of discretion. "An abuse of discretion has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented." Marshall v. State, 2010 OK CR 8 , 1 24, 232 P.3d 467, 474 (citing State v. Love, 1998 OK CR 32, 12 , 960 P.2d 368, 369 ). See also Stouffer v. State, 2006 OK CR 46 , €60, 147 P.3d 245, 268 (citing C.L.F. v. State, 1999 OK CR 12 , 1 5, 989 P.2d 945, 947 ); Slaughter v. State, 1997 OK CR 78 , 1 19, 950 P.2d 839, 848-849 (citing R.J.D. v. State, 799 P.2d 1122, 1125 (OKk1.0r.1990)) (quoting Stevens v. State, 94 Okl.Cr. 216, 225 , 232 P.2d 949, 959 (1951)). While the abuse of discretion standard includes an evaluation of whether the judge's decision is clearly erroneous, we have not adopted a separate standard labeled "clear error." We must be careful with the words we use due to the fact our readers evaluate those words for future arguments. - Slight changes give rise to arguments that standards of review have changed when in fact they have not. I would just urge the Court to be consistent in the verbiage it uses to explain the methods utilized in analyzing issues on appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775098. Public record. Not legal advice.