The opinion
LUMPKIN, Vice Presiding Judge,
dissenting:
I must dissent to the Court’s improper analogy to the decision in Mahorney v. Wattman, 917 F.2d 469 (10th Cir.1990), as to the basis for the reversal in this case; especially in light of the overwhelming, un-contradicted evidence of guilt as presented at trial. The “cloak of innocence” argument in the present case is distinguishable from the argument in Mahomey. In Ma-homey, the prosecutor specifically referred to the legal standard of “presumption of innocence”. Here, the argument is merely one of analogy to the fact that the evidence presented at trial shows that the Appellant was guilty as charged. Further, the instructions given to the jury clearly stated the presumption of innocence accorded to the Appellant and the State’s burden- of proving guilt beyond a reasonable doubt.
Although it is improper to indicate to the jury that the Appellant did not serve a full term of imprisonment for a prior conviction, the comments made in the second stage were not so improper as to have contributed to the length of the sentence imposed. The sentence was clearly based upon the Appellant’s prior criminal history, including his seven (7) prior felony convictions. At most, this Court should only consider modification of the sentence if it feels the comments influenced the sentence, not a reversal for a new trial. The undisputed evidence of guilt dictates that if any error occurred, it was harmless error. Therefore, the Court should accept and fulfill its responsibility of appellate review and affirm the conviction.