¶1 Appellant, James Wesley Jacobs, Jr., was tried by jury and convicted in the District Court of Comanche County, Case No. CF-2021-172 of Count 1, First Degree Manslaughter, in violation of 21 O.S.2011, § 711, and Count 2, Assault and Battery, in violation of 21 O.S.Supp.2019, § 644(B). ¹ The Honorable Grant Sheperd, District Judge, sentenced Appellant to forty years imprisonment and payment of a $10,000.00 fine on Count 1 and ninety days imprisonment on Count 2, in accordance with the jury's verdict.

¶2 From this judgment and sentence, Appellant appeals and raises the following propositions of error:

I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED AN INCORRECT AND CONFUSING INSTRUCTION TO BE SUBMITTED TO THE JURY. THIS INCORRECT AND CONFUSING INSTRUCTION IMPROPERLY PERMITTED THE JURY TO CONSIDER IMPEACHMENT EVIDENCE AS SUBSTANTIVE EVIDENCE OF GUILT.

II. MR. JACOBS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE II, § 20 OF THE OKLAHOMA CONSTITUTION.

¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence, Appellant is not entitled to relief.

I.

¶4 In his first proposition, Appellant contends the trial court erred in instructing his jury regarding the use of witness Ja'Kayla Jacobs' (Appellant's daughter) prior inconsistent statements. As there was no defense objection to the jury instructions, review of this claim is for plain error. Lee v. State, 2018 OK CR 14, ¶ 4, 422 P.3d 782, 785. As set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. Id., 1994 OK CR 40, ¶¶ 11, 23, 30, 876 P.2d at 694-95, 698-701. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id., 1994 OK CR 40, ¶ 30, 876 P.2d at 701. Jury "[i]nstructions are sufficient where they accurately state the applicable law." Runnels v. State, 2018 OK CR 27, ¶ 19, 426 P.3d 614, 619.

¶5 The State called Jacobs as a witness at trial. She admitted she did not want to testify. When asked on direct examination to tell the jury what she saw on the date of the crime, she refused and stated she did not know. Jacobs persisted in responding that she could not recall when asked questions about what she saw on that date. She also testified she did not recall when asked if she told police what she saw on the night of the crime during her interview with them. Police recorded their interview with Jacobs. Although Jacobs watched her recorded interview prior to being called as a witness, she persisted in saying she did not recall what she said during the interview. Ultimately, Jacobs admitted she made statements in the interview and that she told the truth, although she never testified about the statements made during the interview and continued to say she could not recall what she said. Defense counsel cross-examined Jacobs. The trial court granted the State's request to play the recorded interview for impeachment purposes. The trial court gave the jury a contemporaneous limiting instruction on the use of prior inconsistent statements for impeachment purposes.

¶6 The jury received Instruction No. 9-20, OUJI-CR (2d) regarding Jacobs' testimony as follows:

Evidence has been presented that on some prior occasion [Jacobs] made a statement inconsistent with her testimony in this case. This evidence is called impeachment evidence, and it is offered to show that the witness's testimony is not believable or truthful. If you find that a statement was made, you may consider this impeachment evidence in determining what weight and credit to give the testimony of [Jacobs]. You may not consider this impeachment evidence as proof of innocence or guilt. You may consider this impeachment evidence only to the extent that you determine it affects the believability of the witness, if at all.

However, if you find the statements of [Jacobs] were made on March 24, 2021, at Lawton Police Department to Detective Robert Meurant, the statements may also be considered as proof of innocence or guilt.

Appellant argues the second paragraph of the instruction was given in error.

¶7 Extrinsic evidence of a witness's prior inconsistent statement can be presented as follows pursuant to 12 O.S.2021, § 2613(B): "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon." The record reflects Jacobs did not testify inconsistently with her police interview. She did not testify to anything she observed on the night of the crime. She repeatedly testified she could not recall what she observed the night of the crime or what she stated in her interview, despite the fact that she watched her video interview prior to testifying and she authenticated the video. Jacobs did not testify she did not make statements to police in her interview, nor did she explain them. She simply testified she could not recall the statements she made. Therefore, her testimony was not inconsistent with her statements to police and the video was not extrinsic evidence of Jacobs' prior inconsistent statement as contemplated by Section 2613(B). Giving the jury the instruction regarding impeachment by prior inconsistent statements was erroneous. However, under the facts of this case, no relief is warranted.

¶8 The State properly played the video as a prior recorded recollection pursuant to 12 O.S.2021, § 2803(5), which states:

The following are not excluded by the hearsay rule even though the declarant is available as a witness:

. . . A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party[.]

This section is an exception to the hearsay rule. Given Jacobs' lack of memory regarding what she observed on the night of Willis' death and what she told police in her interview, her authentication of the video recording of that interview, and defense counsel's cross-examination of her, the State properly presented the video to the jury pursuant to Section 2803(5). See Stiles v. State, 1999 OK CR 19, ¶¶ 2-3, 989 P.2d 955, 960, Lumpkin, V.P.J., concurring in results (witness testified she could not remember what occurred or what she told police, although she admitted she gave an interview to police and was cross-examined; State could properly play video interview as past recollection recorded and jury could use the statements therein as substantive evidence of guilt.). This video evidence was properly presented to the jury as substantive evidence of guilt or innocence, not as impeachment evidence. Thus, the trial court erred in giving the impeachment instruction. However, any error in the complained of jury instruction regarding impeachment by prior inconsistent statements was harmless since presentation of the video interview to the jury was proper under Section 2803(5) and the jury could properly use it as substantive evidence of guilt or innocence. Cf. Welch v. State, 1998 OK CR 54, ¶ 8, 968 P.2d 1231, 1240 (where trial court's reason for admission of evidence was incorrect, but evidence was admissible under another section of the evidence code, any error in its admission was harmless). Proposition I is denied.

II.

¶9 In his final proposition of error, Appellant claims he received ineffective assistance of counsel due to counsel's failure to object to the jury instruction addressed in Proposition I. "This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984)." Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. "The Strickland test requires an appellant to show: (1) that counsel's performance was constitutionally deficient; and (2) that counsel's deficient performance prejudiced the defense." Id.

¶10 The Court begins its analysis with the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Appellant must overcome this presumption and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. "When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed." Bland v. State, 2000 OK CR 11, ¶ 113, 4 P.3d 702, 731. To demonstrate prejudice an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel's unprofessional errors. Id., 2000 OK CR 11, ¶ 112, 4 P.3d at 731. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011).

¶11 In Proposition I, we found that although the trial court gave an incorrect jury instruction regarding its use of the recording of Jacobs' police interview as an inconsistent statement, the error was harmless based upon our determination that the evidence was properly admitted as substantive evidence pursuant to Section 2803(5). Accordingly, Appellant has not shown a reasonable probability that the outcome of the trial would have been different but for counsel's failure to object to the jury instruction. See Stewart v. State, 2016 OK CR 9, ¶ 35, 372 P.3d 508, 515 (where complained of error is harmless, the defendant cannot show prejudice). Proposition II is denied.

DECISION

¶1 I join the Court's summary opinion in full, but I write separately to clarify the limits of today's holding that the recorded police interview was admissible as a past recorded recollection under Section 2803(5) of Title 12.

¶2 As an exception to the hearsay rule, Section 2803(5) requires "[a] record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly." In the present case, the witness's recorded statements to law enforcement satisfied this standard. See United States v. Sollars, 979 F.2d 1294, 1298 (8th Cir. 1992) (permitting government to play tape recording of witness under Fed. R. Evid. 803(5) where witness no longer recalled details of interview with agents); United States v. Riley, 657 F.2d 1377, 1386 (8th Cir. 1981) (allowing government to introduce taped interview of the victim given to a law enforcement officer when victim had no present memory of the matter recorded under Fed. R. Evid. 803(5)); United States v. Lewis, 954 F.2d 1386, 1393--95 (7th Cir. 1992) (allowing government to admit report by FBI agent of witnesses' statements under Fed. R. Evid. 803(5) when witness could not remember statements made to the agent but testified that he would have told the truth during the interview).

¶3 However, it is important to emphasize that this rationale does not reflect a per se rule regarding law enforcement recordings. Rather, each proffered record must be evaluated individually considering its unique facts before being presented to a fact finder.

I am authorized to state Judge Hudson joins in this writing.