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Date: 04-04-2024
Case Style:
Case Number: F-2022-787
Judge: WILLIAM J. MUSSEMAN, JR
Court: Oklahoma Court of Criminal Appeals
Plaintiff's Attorney: GENTNER F. DRUMMOND
ATTORNEY GENERAL OF
OKLAHOMA
SAMANTHA K. OARD
ASSISTANT ATTORNEY
GENERAL
Defendant's Attorney: MARYANN GROVER
OKLAHOMA INDIGENT
DEFENSE
Description:
¶4 Appellant's first proposition claims that he is entitled to a favorable modification of his sentence because the trial court incorrectly informed the jury that the jury makes a recommendation of punishment, rather than informing the jury that its verdict would be the imposed sentence. Appellant did not object to the trial court's charge to the jury, limiting our review to plain error. Metoyer v. State, 2022 OK CR 27, ¶ 20, 526 P.3d 1158, 1166.
¶5 Plain error review requires the defendant to prove: (1) the existence of an actual error; (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Washington v. State¸ 2023 OK CR 22, ¶ 7, 541 P.3d 852, 856 (citing Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923). Even where this showing is made, this Court will correct plain error only where the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings or represented a miscarriage of justice. Id.
¶6 We have previously held that "a jury's sentencing verdict is not merely a recommendation that informs the trial court's ultimate sentencing determination. . . . The trial court should follow the jury's sentencing verdict unless it is otherwise legally infirm." Metoyer, 2022 OK CR 27, ¶ 15, 526 P.3d at 1164-65 (footnote omitted) (citing 21 O.S.2021, § 64; 22 O.S.2021, § 926.1). In Metoyer, though, modification of the sentence was granted because the sentencing judge imposed a sentence different from that assessed by the jury.
¶7 Review of the record here shows that the jury assessed a sentence within the statutory sentencing range, and the sentencing judge imposed the sentence assessed by the jury. The record shows that any error made by the trial court in its instruction was with the agreement of Appellant's trial counsel and did not seriously affect the fairness, integrity, or public reputation of the proceeding or result in a miscarriage of justice. Proposition I is denied.
II.
¶8 Appellant claims in his second proposition that the trial court erred when it instructed the jury that he would be required to serve 85% of his sentence before becoming eligible for parole if he were convicted of making a lewd proposal to a child. Appellant argues that a proposal to a child does not fall under the definition of "lewd molestation" as required by Title 21, Section 13.1, of the Oklahoma Statutes. As Appellant did not object to the instruction during trial, we would generally review for plain error only as set forth in Proposition I. However, we will review de novo as the challenge by Appellant also requires review of a question of statutory interpretation. State v. Allen, 2021 OK CR 14, ¶ 6, 492 P.3d 27, 29.
¶9 A fundamental principle of statutory construction is to ascertain and give effect to the intention of the Legislature. Gerhart v. State, 2015 OK CR 12, ¶ 14, 360 P.3d 1194, 1198. Legislative intent is first determined by the plain and ordinary language of the statute. Newlun v. State, 2015 OK CR 7, ¶ 8, 348 P.3d 209, 211. "A statute should be given a construction according to the fair import of its words taken in their usual sense, in connection with the context, and with reference to the purpose of the provision." Jordan v. State, 1988 OK CR 227, ¶ 4, 763 P.2d 130, 131.
¶10 The precise issue here is whether a lewd or indecent proposal, in violation of 21 O.S.Supp.2018, § 1123(A)(1), is a crime of "lewd molestation of a child as defined in Section 1123" and thus subject to the 85% Rule, as the trial court instructed the jury.2 Section 1123(A)(1) makes it a felony for any person
to knowingly and intentionally . . . [m]ake any oral, written or electronically or computer-generated lewd or indecent proposal to any child under sixteen (16) years of age, or other individual the person believes to be a child under sixteen (16) years of age, for the child to have unlawful sexual relations or sexual intercourse with any person. . . .
The relevant version of the 85% Rule, codified at 21 O.S.Supp.2015, § 13.1(18),3 provided (with emphasis added):
Persons convicted of . . . Lewd molestation of a child as defined in Section 1123 of this title . . . shall be required to serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole.
The State argues that a lewd or indecent proposal is an 85% crime, citing a footnote reference in Barnard v. State, 2012 OK CR 15, ¶ 1 n.1, 290 P.3d 759, 761, n.1.4 Appellant argues that criminal statutes must be strictly construed against the State, and takes the position that a proposal to commit lewd acts with a minor is not -- absent express legislative text to the contrary -- the same as "lewd molestation."
¶11 The crux of the problem here is that, despite what Section 13.1 says, the term "lewd molestation" is not defined in Section 1123, or anywhere else in the Oklahoma Statutes for that matter. Since it was enacted in 1945, Section 1123 has proscribed a broad range of conduct -- including not just the physical touching of a minor, but also proposals to a minor for such purposes, and even "look[ing] upon" a minor in a lewd or lascivious manner. This Court's use of the term "lewd molestation" in published opinions can be traced back as early as 1955. Lowrey v. State, 1955 OK CR 131, ¶¶ 1, 5, 290 P.2d 785 (describing a defendant's crime as lewd molestation, but providing no details as to exactly what the conduct was). Since then, the term continues to be used to refer generically to crimes against children listed in Section 1123. See, e.g., Munn v. State, 1969 OK CR 245, ¶¶ 10-13, 459 P.2d 628, 631-32 (rejecting a defendant's claim that driving a child to a secluded place and asking her to disrobe, at which point she fled, was insufficient to constitute "lewd molestation").5
¶12 Over the years, the list of crimes against children covered by Section 1123 has been expanded. (The statute now also covers other conduct, such as sexual battery against victims who are at least sixteen years of age, and various acts with human corpses.) But the fact remains that all proscribed conduct involving children appears in a single section of law (presently, Paragraph A of Section 1123), without any clear attempt to differentiate in terms of severity of punishment between actions and words. The crime of lewdly looking upon a minor is, and always has been, found in the very same clause or subsection that proscribes lewdly touching one. Compare 21 O.S.Supp.1945, § 1123 with 21 O.S.Supp.2018, § 1123(A)(2).6 While it might make sense to distinguish, for punishment purposes, between (1) lewdly touching a minor, (2) proposing lewd acts to a minor, and (3) merely looking at a minor in a lewd fashion, the Legislature has not clearly done so.7
¶13 Section 1123 has always considered a perpetrator equally culpable, whether the conduct involved actual sex acts with a child, or merely proposing same to the child. Attempts to distinguish, for punishment purposes, between mere proposals and consummated acts are not supported by the statutory text. Returning to the language of the 85% Rule, we believe that when the Legislature applied the Rule to those convicted of "[l]ewd molestation of a child as defined in Section 1123 of this title," it intended to include all sex crimes against children that are mentioned therein. The trial court's instruction was not error. Proposition II is denied.
III.
¶14 Appellant claims in his third proposition that the trial court erred in failing to grant a mistrial after an alleged Brady8 violation was revealed. As counsel for Appellant requested a mistrial, the trial court's decision will be reviewed for an abuse of discretion. Jackson v. State, 2006 OK CR 45, ¶ 11, 146 P.3d 1149, 1156. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.
¶15 A mistrial is appropriate "when an event at trial results in a miscarriage of justice or constitutes an irreparable and substantial violation of an accused's constitutional or statutory right." Tryon v. State, 2018 OK CR 20, ¶ 133, 423 P.3d 617, 653. For the Court to find a reversible error here, Appellant "must meet the burden of showing (1) the prosecution has actually suppressed evidence after that evidence has been requested by the defense; (2) the evidence was favorable to appellant's defense; and (3) the evidence is material either to the guilt of appellant or to his punishment." Lay v. State, 1988 OK CR 60, ¶ 12, 752 P.2d 823, 826.
¶16 A review of the record shows that the trial court thoroughly reviewed the evidence presented. The evidence that was allegedly suppressed was not shown to favor the defense or to be material to his guilt or punishment. The trial court did not abuse its discretion in denying the request for mistrial. Proposition III is denied.
IV.
¶17 Appellant claims in his fourth proposition that he was denied the effective assistance of counsel because his attorney failed to question the arresting officer about his prior relationships with Appellant and Appellant's girlfriend. This Court reviews claims of ineffective assistance of counsel de novo, to determine whether counsel's constitutionally deficient performance, if any, prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Strickland v. Washington, 466 U.S. 668, 687 (1984); Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Under Strickland, an appellant must show both (1) deficient performance, by demonstrating that his counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. 466 U.S. at 694.
¶18 Strickland's demanding standard for deficient performance is satisfied only by proof of unprofessional errors so serious that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Browning v. State, 2006 OK CR 8, ¶ 14, 134 P.3d 816, 830. An appellant must overcome the presumption that the representation by counsel was sound trial strategy. Id.
¶19 The record before us shows that Appellant's counsel's representation was not unreasonable and Appellant has not shown that the result of the proceeding would have been different even if his counsel had obtained testimony from the witness about his history with Appellant. Proposition IV is denied.
V.
¶20 In his fifth proposition, Appellant requests that we remand this matter to have his Judgment and Sentence corrected to reflect that he was found guilty by a jury, rather than pled guilty. The State responded that Appellant's request for relief has become moot and submitted a Motion to Supplement the Record on Appeal that included a copy of a corrected Judgment and Sentence showing that Appellant was found guilty by jury.
¶21 We hereby grant the State's Motion to Supplement the Appeal Record with the corrected Judgment and Sentence. The supplemental material renders Appellant's request in Proposition V moot.
Outcome:
Plaintiff's Experts:
Defendant's Experts:
Comments: