# Gilson v. State

> Court of Criminal Appeals of Oklahoma · July 26, 2000 · 71 O.B.A.J. 2063

URL: https://www.frixlaw.com/law-library/cases/9785526

## Case

- **Full name:** Donald Lee GILSON, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** July 26, 2000
- **Citations:** 71 O.B.A.J. 2063; 8 P.3d 883; 2000 OK CR 14; 2000 Okla. Crim. App. LEXIS 15; 2000 WL 1028961
- **Precedential status:** Published
- **Opinion:** Concurrence by Strubhar
- **Judges:** Lumpkin, Lile, Strubhar, Johnson, Chapel
- **Cited by:** 65 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/9785526

## How later opinions describe it (automated extraction)

- holding that the commission of child abuse and the permitting of child abuse were alternative means of committing first-degree murder by child abuse, and that jury unanimity on the means was not required
- holding that defendant is not entitled to lesser-included instruction unless he can show evidence at trial negated extra elements of overlying crime
- finding legislative action that protects vulnerable children legally justified

## Opinion text

STRUBHAR, Presiding Judge,
concurs in result:
1 1 Based on the doctrine of stare decisis, I concur in the results reached by the Court in *930 this case. I continue to believe that First Degree Murder By Child Abuse is and should be a specific intent crime as I expressed in Fairchild v. State, 1998 OK CR 47 , 965 P.2d 391, 403 (Lane, J. dissenting joined by Strubhar, V.P.J.), opinion withdrawn and rehearing granted, 1999 OK CR 30 , 992 P.2d 349 , followed by opinion on rehearing, 1999 OK CR 49 , 998 P2d 611 (Strubhar, P.J. dissenting). I further maintain that a culpability assessment, ie. a finding of intentional harm, must be made at some point in the process for the death penalty to be constitutionally sound in capital child abuse murder cases even if the defendant is the actual killer. See Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 LEd.2d 1140 (1982). However, I yield to the majority here and agree that Gilson's death sentence is valid based on the culpability assessment performed by the Court regardless of whether he committed or permitted the child abuse that led to Coffman's death.
2 As the majority concludes, I, too, agree the modified verdict forms in this case were harmless. Again this Court must stress the importance of using the uniform instructions and verdict forms.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785526. Public record. Not legal advice.