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2005 OK CR 14

Gore v. State

Court of Criminal Appeals of Oklahoma

Decided August 30, 2005

Court of Criminal Appeals of Oklahoma · decided 2005-08-30

Key passage — most relied on by later courts

“"There must be evidence of acts or cireum-stances that tend clearly to point to another, rather than to the defendant, as the guilty party," ... "there must be such proof of connection with it, such a train of facts or circumstances, as tend clearly to point out some one besides the prisoner as the guilty party. Remote acts, disconnected, and outside of the crime itself, cannot be separately proved for such a purpose" ..., and "there must be evidence of acts or cireumstances that tend clearly to point to another, rather than the accused." Accordingly, proof of an overt act in the commission of the crime is required, but it is as a threshold showing, and not as the sole determining factor. It is only one of the factors to consider in determining if the evidence sufficiently connects the third party to the crime. As our test for determining the admissibility of third party perpetrator evidence is based upon more than the single finding of an overt act in the commission of the crime, the standard is not too strict and is consistent with constitutional principles. It does not prevent the defendant from presenting a defense or presenting evidence that another person may have committed the crime as long as there is some quantum of evidence, which is more than mere suspicion and innuendo, that con nects the third party to the commission of the crime. It does not directly control the scope of defense counsel's argument to the jury and counsel is allowed to argue any inference that ca”

quoted by 2 later decisions, including 2006 OK CR 46 - Stouffer v. State, 617 F. Supp. 2d 1129 - Thompson v. Sirmons

“explicitly abandon the 'requirement' of proof of an overt act in admissibility determinations concerning third party perpetrator evidence.”

quoted by 1 later decision, including Summers v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2005-08-30

How this case has been cited

Cited by 15 later decisions (1 by the Supreme Court) — most recently January 2025

1 federal appellate · 11 state decisions

80200520102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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CHAPEL, Presiding Judge,

¶1concur in results.

¶2T1 I concur in reversing the conviction in this case and in remanding for a new trial. I would, however, explicitly abandon the "requirement" of proof of an overt act in admissibility determinations concerning third party perpetrator evidence. - Certainly, there should be "some quantum of evidence, which is more than mere suspicion and innuendo, that connects the third party to the commission of the crime."1 However, as this case shows, that is all that ought to be required.

¶312 If the State is allowed, as it should be allowed, to convict someone upon cireumstan-tial evidence without the requirement that it prove an overt act, I see no reason to deny a person, in defense, the right to present circumstantial evidence without proof of an overt act, that a third party committed the crime. In determining the admissibility of such evidence, I would apply the test set forth above.

¶4T3 I am authorized to state that Judge Arlene Johnson joins in this concur in result opinion.

¶5. Majority opinion, pg. 1276.

C. JOHNSON, J.,

¶6specially concurs.

¶7T1 This is clearly a case where exeluded evidence certainly could have helped the Appellant. A previously convicted party knew too many things that were not common knowledge. He may well have been involved in some fashion in the crime. Therefore, the exclusion of the evidence was prejudicial to Appellant and was clear error.

¶8T 2 Oklahoma's overt act rule, addressed in the separate writings, can be addressed another day.

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