450 P.3d 969
Okla. Crim. App.2019Background
- Robert Eugene Brewer was tried in Tulsa County (Case No. CF-2016-6383) and convicted by a jury of Sexual Abuse of a Child Under 12; jury recommended seven years imprisonment and three years post-imprisonment supervision.
- Brewer appealed only the admission of "other crimes"/propensity evidence from witnesses A.K., J.H., L.R.N., and P.E.S., arguing the court abused its discretion by not holding a proper pretrial hearing and by not requiring live testimony.
- The trial judge held three pretrial hearings, greatly limited the State's proposed testimony, and admitted the propensity evidence based on written statements and the Horn factors weighing probative value against prejudice.
- Brewer did not renew a specific contemporaneous objection at trial to the propensity evidence, so the claim is reviewed for plain error only.
- The Court of Criminal Appeals found the trial court properly admitted the evidence by clear and convincing proof, that the probative value was not substantially outweighed by unfair prejudice, and therefore affirmed the conviction.
- The case was remanded for a nunc pro tunc correction to the judgment to reflect the correct statute; a concurring opinion noted that live testimony at pretrial hearings is not required.
Issues
| Issue | Plaintiff's Argument (Brewer) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the trial court erred in admitting unsubstantiated other-crimes/propensity evidence | The court abused its discretion by failing to hold a proper pretrial hearing and requiring live testimony so the judge could assess credibility and determine clear and convincing proof | The court held multiple pretrial hearings, permissibly relied on written statements under evidentiary rules for preliminary fact determinations, narrowly limited testimony, and applied Horn factors to admit evidence | Brewer waived all but plain error; no plain or reversible error; admission was proper under clear-and-convincing standard; conviction AFFIRMED (remanded only to correct statutory citation) |
Key Cases Cited
- Baird v. State, 400 P.3d 875 (2017) (plain-error review requires showing an actual, obvious error affecting substantial rights)
- Horn v. State, 204 P.3d 777 (2009) (sets factors for admissibility of sexual-propensity evidence and requirement of clear-and-convincing proof)
- Lee v. State, 661 P.2d 1345 (1983) (rules of evidence do not apply when judge determines preliminary questions of admissibility)
- Lowery v. State, 192 P.3d 1264 (2008) (failure to renew objection at trial limits review to plain error)
- Welch v. State, 2 P.3d 356 (2000) (probative value not substantially outweighed by unfair prejudice supports admission)
- Driver v. State, 634 P.2d 760 (1981) (similarities among acts may show a common method of operation)