525 P.3d 46
Okla. Crim. App.2023Background
- Felipe Perez, Sr. was tried by jury in Kiowa County for lewd or indecent acts to a child under 16 (21 O.S. § 1123); jury convicted and imposed a 20-year sentence.
- Victim E.A. testified; Perez denied the allegation at trial and claimed E.A. and others were lying.
- The State presented two prior-victim propensity witnesses (R.P. and N.C.), both grandchildren, whose testimony the trial court admitted under 12 O.S. § 2414 after applying Horn factors and giving limiting instructions.
- Perez testified and was cross-examined; on cross the prosecutor sought to elicit whether Perez had molested his sister M.S.; the court allowed M.S. to testify in rebuttal even though her testimony had been excluded from the State’s case-in-chief for late disclosure under § 2414(B).
- On appeal Perez argued (I) improper admission of propensity evidence and (II) error in admitting M.S.'s rebuttal testimony. The Court affirmed the conviction but reversed and remanded only the sentence for resentencing due to the rebuttal error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perez) | Held |
|---|---|---|---|
| 1. Admissibility of prior-victim propensity evidence (R.P., N.C.) | Evidence was probative of modus operandi, motive, and victim credibility; met Horn factors and was proved by clear and convincing evidence | Evidence was unduly prejudicial, lurid, and more inflammatory than the charged offense | Admission not an abuse of discretion; limiting instructions given; no due-process violation — Proposition I denied |
| 2. Admission of M.S.'s rebuttal testimony after exclusion in State's case-in-chief | Testimony went to Perez's credibility and was permissible rebuttal to his testimony | M.S.'s testimony was extrinsic evidence used to impeach Perez on a collateral matter and was barred (and also untimely disclosed) | Trial court abused discretion admitting M.S.'s rebuttal. Error harmless as to guilt but not harmless as to sentencing; conviction affirmed, sentence reversed and remanded for resentencing |
Key Cases Cited
- Horn v. State, 204 P.3d 777 (2009 OK CR) (sets Horn factors and requires clear-and-convincing proof for admitting sexual-propensity evidence)
- James v. State, 204 P.3d 793 (2009 OK CR) (assesses whether prejudicial effect substantially outweighs probative value)
- Kimbro v. State, 857 P.2d 798 (1990 OK CR) (defendant placing credibility at issue by testifying permits prosecution to rebut)
- Jones v. State, 781 P.2d 326 (1989 OK CR) (prohibits extrinsic evidence to prove specific instances of conduct to impeach credibility)
- Moon v. State, 475 P.2d 410 (1970 OK CR) (distinguishes collateral matters — extrinsic proof of collateral matters is inadmissible)
- Duclos v. State, 400 P.3d 781 (2017 OK CR) (harmless-error test for state-law errors: reversed only if error had substantial influence or leaves grave doubt)
- Blueford v. Arkansas, 566 U.S. 599 (2012) (jurors presumed to follow limiting instructions)
- Vance v. State, 519 P.3d 526 (2022 OK CR) (appellate review of admission of propensity evidence is abuse-of-discretion standard)