Barnard v. State
2012 OK CR 15
| Okla. Crim. App. | 2012Background
- Barnard convicted by jury in Tulsa County CF-2007-2419 of making a lewd or indecent proposal to a child under sixteen by computer and using a computer to commit a felony
- Evidence stemmed from Detective Gibson posing as a 12-year-old girl named Angela; Barnard corresponded via email with Angela from 2007
- Librarian report led to police investigation; emails showed explicit sexual proposals and meeting requests
- Barnard disclosed belief Angela was twelve; he stipulated he was 30 years old, creating a belief element
- Trial instructions omitted the belief-element alternative; Count 1 and Count 2 arose from same conduct; Count 2 later reversed for double punishments
- Court affirmed Count 1, reversed Count 2 and remanded to dismiss; several other issues analyzed but not all granted
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence and jury instructions | Barnard | Barnard contends instruction omitted belief element; evidence supports belief Angela under 16 | Omitted element harmless; conviction sustained for Count 1 |
| Double jeopardy and multiple punishment | Barnard | Counts 1 and 2 are separate statutes; risks double punishment | Count 2 reversed and Count 1 affirmed; double punishment found plain error requiring reversal for Count 2 |
| Non-uniform jury instruction on post-imprisonment supervision | Barnard | Instruction misapplied retroactivity; supposed to inform on supervision | Plain error not shown; no impact on substantial rights; instruction harmless |
| Nunc pro tunc correction to judgment | Barnard | Judgment mis-states statute for Count 2; correction requested | Moot since Count 2 reversed; correction not needed |
| Excessive sentence | Barnard | Consecutive life plus ten years excessive | moot due to Count 2 reversal; total sentence not reviewable on this basis |
Key Cases Cited
- Neder v. United States, 527 U.S. 1 (U.S. 1999) (harmless-error framework applies to missing element in instruction when appropriate)
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless-error standard in evaluating instructional omissions)
- United States v. Bohuchot, 625 F.3d 892 (5th Cir. 2010) (harmlessness analysis in plain-error review when an element is omitted)
- Davis v. State, 993 P.2d 124 (Okla. Crim. App. 1999) (framework for evaluating related crimes under §11(A))
- Hogan v. State, 139 P.3d 923 (Okla. Crim. App. 2006) (plain-error review and prejudice principles)
- Robinson v. State, 507 P.2d 1296 (Okla. Crim. App. 1978) (entrapment principles applied to law-enforcement deception)