ROUSCH v. STATE
2017 OK CR 7
| Okla. Crim. App. | 2017Background
- Defendant Ralph Leslie Rousch was tried by jury in Tulsa County and convicted of three misdemeanor counts under 21 O.S. § 1172 (making obscene, threatening, or harassing electronic communications), each as an after-former-felon enhancement; sentenced to 3 months jail and $500 fine per count, to run consecutively.
- Counts I–III alleged offending telephone calls occurring between March 20, 2012 and August 25, 2012; convictions were for lesser-included misdemeanors of originally charged lewd or indecent proposals to a child.
- The convictions arose from multiple unwanted telephone calls to a minor in which Rousch made explicit sexual remarks and requests, continued over about six months despite the victim and her mother telling him to stop.
- Rousch did not raise the double-jeopardy/continuing-offense argument at trial; he raised it on appeal as his sole proposition of error.
- Rousch argued that § 1172(C) makes the offense a "continuing offense" such that multiple calls during the period could only be prosecuted as a single offense; the State argued each call was a separate offense and thus separately punishable.
- The Court reviewed for plain (constitutional) error and, if error was present, whether it was harmless beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether multiple convictions for separate calls under 21 O.S. § 1172 violate double jeopardy because the statute makes the offense "continuing" | State: each count alleged distinct act/statement during a separate call, so each requires proof the others do not | Rousch: § 1172(C) labels the offense a "continuing offense," so multiple calls within the period are one continuous crime and multiple convictions punish the same offense | Held: No double jeopardy violation; § 1172(C) concerns jurisdiction/venue (place of commission) not single-unit-of-prosecution; separate calls were distinct acts and separately punishable. |
Key Cases Cited
- Bartell v. State, 881 P.2d 92 (Okla. Crim. App. 1994) (double jeopardy principles discussed)
- Head v. State, 146 P.3d 1141 (Okla. Crim. App. 2006) (plain-error review explained)
- Mack v. State, 188 P.3d 1284 (Okla. Crim. App. 2008) (double jeopardy protects against multiple punishment for same offense)
- Grant v. State, 205 P.3d 1 (Okla. Crim. App. 2009) (separate acts separated in time do not violate double jeopardy)
- Logsdon v. State, 231 P.3d 1156 (Okla. Crim. App. 2010) (Blockburger analysis for multiple charges)
- Robinson v. State, 255 P.3d 425 (Okla. Crim. App. 2011) (harmless-beyond-a-reasonable-doubt standard for constitutional error)
- Barnard v. State, 290 P.3d 759 (Okla. Crim. App. 2012) (preservation and plain-error standards)
- Leftwich v. State, 350 P.3d 149 (Okla. Crim. App. 2015) (statutory interpretation principles)
- Lewis v. City of Oklahoma City, 387 P.3d 899 (Okla. Crim. App. 2016) (avoid interpretations that render statutory provisions meaningless)