Single indictment dismissed against Sizemore
Apr. 29—Federal prosecutors dismissed a charge for assaulting an officer against a McAlester man in line with an appellate court's ruling that a defendant can not be charged using state law when a federal law exists for the alleged crime.
Court records show Devin Sizemore, 27, was indicted in May 2021 in the Eastern District of Oklahoma for murder in Indian Country, second degree murder in Indian Country, voluntary manslaughter in Indian Country, child abuse in Indian Country, assault resulting in serious bodily injury in Indian Country, and assault and battery on a police officer in Indian Country.
Sizemore is accused of drowning his daughter, Emily, in a pond near Krebs on July 15, 2016, and assaulting then-Krebs Police Officer Jack Suter during his arrest.
Prosecutors filed a motion to dismiss the assault and battery on a police officer in Indian Country indictment two months after Sizemore's defense attorney filed the initial motion to dismiss the charge.
The government's motion states the U.S. Court of Appeals for the Tenth Circuit's decision in United States v. Harris was decided after the indictments against Sizemore were filed.
"In response to the defendant's motion and in light of the Harris decision, the government respectfully moves, without opposition, to dismiss count six of the indictment without prejudice," the motion states.
The Harris cases stated that the federal government could not assimilate Wyoming's assault provision to indict the defendant when a federal statue existed that prohibited the alleged behavior Harris exhibited.
In Sizemore's case, the federal government used the Assimilative Crimes Act to indictment Sizemore with the state of Oklahoma's assault on a police officer statue.
Sizemore's attorney argued that the ACA does not apply to Indian Country and that the ACA can only be used to fill gaps in federal law.
"Just as in Harris, the conduct alleged in Count Six is covered by federal law occupying the field," the defense's motion stated. "Accordingly, there are no gaps in federal assault law for the ACA to fill."
Sizemore remains indicted for the assault on Suter under count five, assault resulting in serious bodily injury in Indian Country, in violation of 18 U.S.C. §§ 113(a)(6), 1151 and 1153.
A Pittsburg County jury originally convicted Sizemore in September 2018 of first-degree murder in the 2016 death of Emily. Investigators testified during the five-day trial that they found the child floating in a pond in rural Krebs, pulled her from the water and tried to save her life.
According to an affidavit filed in the case, Sizemore told investigators he put his daughter in a pond to "baptize her, because of all the evil in the world" and that he held her head under the water for "maybe 30 seconds.
Sizemore claimed to investigators that "something went wrong" but he was able to bring his daughter back to life after performing CPR on her.
Court documents show Sizemore is currently in the custody of the Bureau of Prisons undergoing a mental health examination following a notice of insanity defense filed in the case.
The trial against Sizemore is currently scheduled to begin in October 2022.
Contact Derrick James at djames@mcalesternews.com
