456 P.3d 609
Okla. Crim. App.2019Background
- Andrew Revilla and co-defendant Stephanie Garcia were tried for sexual abuse of a minor; Revilla convicted of two counts of lewd molestation and one count of forcible sodomy.
- Sentenced to 20 years on each count, ordered consecutive; required to serve 85% before parole consideration.
- The child victim testified at both the preliminary hearing and at trial; parties stipulated that hearsay (forensic interview, drawings) could be considered at the preliminary hearing.
- Revilla did not challenge sufficiency of the trial evidence on appeal but raised five propositions: ineffective assistance (failure to move to quash after preliminary hearing), admission of other-bad-acts evidence, omission of a jury instruction on prior sworn statements, prosecutorial misconduct, and cumulative error.
- The Court reviewed claims under Strickland (ineffective assistance), plain-error standards where applicable, and affirmed the convictions, finding no reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| I. Ineffective assistance for failing to move to quash after preliminary hearing | Preliminary-hearing hearsay and the victim's live testimony provided probable cause; a motion to quash would not have succeeded and dismissal would not have been likely | Counsel was deficient for not moving to quash because the victim was "unavailable" at prelim and hearsay lacked required corroboration under §2803.1 | No deficient performance; victim was "available," prelim. standard is probable cause, parties had stipulated to hearsay consideration, so motion would not likely have led to dismissal. |
| II. Admission of other-crimes / bad-act evidence | Evidence elicited on cross of defense witnesses was impeachment or collateral and not plain error; defense failed to timely object | Evidence of drug use, theft, and children in DHS custody improperly prejudiced the jury | No reversible error; many questions went unobjected to (plain-error review), and testimony did not so prejudice the outcome as to warrant relief. |
| III. Omission of portion of OUJI-CR 9-20 on prior sworn statements | Omitted paragraph permitting prior sworn statements to be considered substantively was harmless because prior testimony did not exonerate defendants | Omission prevented jury from treating preliminary sworn testimony as substantive evidence that could help defense | Plain-error review — omission not prejudicial; prior preliminary testimony was not exculpatory and would not have changed the verdict. |
| IV. Prosecutorial misconduct and cumulative error | Prosecutor’s questions and comments did not vouch, did not assert facts not in evidence, and did not render trial fundamentally unfair | Multiple instances of misconduct (eliciting bad-acts, comments) denied fair trial | No prosecutorial misconduct that infected trial; cumulative-error claim fails because individual claims lack reversible error. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard).
- United States v. Owens, 484 U.S. 554 (1988) (memory lapse does not automatically render witness "unavailable" for hearsay exception purposes).
- State v. Juarez, 299 P.3d 870 (Okla. Crim. App. 2013) (preliminary hearing requires probable cause; §2803.1 requirements are not strictly applied at bindover).
- Kennedy v. State, 839 P.2d 667 (Okla. Crim. App. 1992) (standards for preliminary hearings and bindover).
- Mathis v. State, 71 P.3d 67 (Okla. Crim. App. 2012) (trial court determination of witness availability reviewed for abuse of discretion).
- Postelle v. State, 267 P.3d 114 (Okla. Crim. App. 2011) (plain-error review for omitted jury instructions).
- Omalza v. State, 911 P.2d 286 (Okla. Crim. App. 1995) (discussion of witness availability and testimony reliability).
- Pickens v. State, 19 P.3d 866 (Okla. Crim. App. 2001) (prosecutorial vouching standards).