406 P.3d 30
Okla. Crim. App.2017Background
- Oscar Dale Willis was tried by jury and convicted under 21 O.S. § 1040.13a for "Offering and/or Soliciting Sexual Conduct with a Minor by Use of Technology." Jury recommended no prison but a $4,000 fine; sentence imposed accordingly.
- Facts: Willis showed Samuel Burwell photos on his cell phone of a scantily clad young female, told Burwell the girl was 14, and offered her for sex (mentioning $600). Offers occurred in person after displaying the phone photos.
- Procedural history: Willis was initially charged with attempting to obtain money under false pretenses; after a preliminary hearing where Burwell testified, that charge was dismissed and the § 1040.13a charge was filed. Burwell was unavailable at trial; the State sought to admit his preliminary hearing testimony.
- At trial the preliminary hearing testimony was admitted over defense objection; Willis was convicted. Defense also objected to admission of evidence that Willis was an elementary school teacher and to evidence seized from a locked bedroom (condoms, lubricant, mattress).
- Willis appealed raising three propositions: (I) insufficient evidence because the offer was face-to-face and to an adult, not "by use of technology"; (II) Confrontation Clause violation from admission of Burwell’s preliminary-hearing testimony; (III) erroneous admission of prejudicial evidence and improper prosecutorial argument. The Court of Criminal Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Willis) | Held |
|---|---|---|---|
| 1. Whether Willis's conduct satisfied § 1040.13a's "by use of technology" element | Showing the photo on a cell phone plus offering the girl for sex places the conduct within § 1040.13a even if the verbal offer was face-to-face | The offer was made in person to an adult (Burwell); showing a photo to an adult is not using technology to offer sex with a minor | Court: Affirmed — technology (cell phone photo) can be the means of sexual exploitation; evidence sufficient when viewed in prosecution’s favor |
| 2. Whether admitting Burwell's preliminary-hearing testimony violated the Confrontation Clause | Burwell was unavailable and defense had a full opportunity to cross-examine him at the preliminary hearing, satisfying Crawford and § 2804(B) | Change in formal charge and potential change in motive deprived Willis of a similar motive to cross-examine; thus admission violated confrontation rights | Court: No abuse of discretion — witness declared unavailable and prior cross-examination was adequate; admission proper |
| 3. Admission of Willis's employment as an elementary teacher and sexual items found in a locked bedroom; prosecutorial misconduct in closing | Evidence about address/employment was relevant to identity and investigation; bedroom items had minimal relevance; prosecutor’s closing comment issue waived for failing to raise separately | Evidence was highly prejudicial and irrelevant to charged conduct; prosecutor improperly suggested motive to convict so Willis would register as a sex offender | Court: Admission of teacher/employment and bedroom items was harmless error in light of strong evidence; prosecutorial misconduct claim waived for appellate review |
Key Cases Cited
- Arganbright v. State, 328 P.3d 1212 (Okla. Crim. App. 2014) (interpreting § 1040.13a and upholding narrow tailoring to prevent use of electronic technology to exploit minors)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause bars admission of testimonial hearsay unless witness unavailable and defendant had prior opportunity to cross-examine)
- Mathis v. State, 271 P.3d 67 (Okla. Crim. App. 2012) (use of preliminary hearing testimony implicates Crawford requirements)
- Stouffer v. State, 147 P.3d 245 (Okla. Crim. App. 2006) (prior opportunity to cross-examine satisfies confrontation requirement when transcript used)
- Rutan v. State, 202 P.3d 839 (Okla. Crim. App. 2009) (standards for reviewing sufficiency of evidence)