*1 Harris, Timothy H. Assistant District At- Tulsa, HOCKERSMITH, torney, Appellant, for the State at trial. Letha Jean McGuire, Norman, Linda H. for appeal. on Oklahoma, Appellee. STATE No. F-94-0707. Edmondson, General, W.A. Drew Attorney Hudson, General, David Attorney Assistant Appeals Court of Criminal of Oklahoma. City, Appellee Oklahoma appeal. 7,Oct. REQUEST
ORDER GRANTING FOR PUBLICATION 9,1996, August On this Court reversed and Appellant’s remanded for retrial conviction Committing Murder Abuse, Child tried the District Court of County, CF-93-1043, Tulsa Case Number Dalton, Jay before the Honorable D. District Judge. We determined that the instruc- used define the term “wilful” was confusing, contradictory potentially mis- leading applied charge to a of First De- gree Murder Child Abuse. Pursuant to Rules the Court Criminal Appeals, O.S.Supp.1995, 3.10, Ch. Rule Opinion, filed a Motion to Publish requesting publish opinion this Court judges, issued this case to assist prosecutors attorneys and defense in future by avoiding repe- Child Abuse Murder cases tition of Appel- the error that occurred in lant’s ease.
Having Appellant’s examined motion this Appellant’s request Court finds that should be, hereby and the same is GRANTED. The opinion issued case shall be publication. released for IT IS SO ORDERED. Charles A. Johnson
/s/ PRESIDING JUDGE Chapel Charles S. /s/ VICE PRESIDING JUDGE Gary Lumpkin L. /s/ JUDGE F. James Lane /s/ JUDGE Richardson, Charles L. R. Chadwick Rich- Reta M. Strubhar /s/ ardson, Tulsa, for Defendant at trial. JUDGE *2 degree murder of first define the elements OPINION SUMMARY abuse, they properly define by child nor did LANE, Judge. “willful”, amounting to fundamental the term Hockersmith was Letha Jean Her claim is Appellant requiring reversal. error by Degree jury First given in the to the of Murder of “willful” as convicted the definition prove in the District crimi- Committing Child Abuse burden to the State’s eliminated 1994, 18, County April rea, on an of Tulsa that it made the crime nal mens and following jury No. CF-93-1043 crime. Case absolute Dalton, Jay District D. before the Honorable Degree charged with First Appellant was sentencing hearing was held June Judge. A 701.7(C), O.S.1991, § pursuant to 21 Murder accepted 3,1994, the trial court at time which provides: which jury’s and sentenced the recommendation the first de- person commits prison. It is from this to life in Appellant from death of a child results gree when the judgment and sentence .has injuring, torturing, or malicious the willful perfected appeal. her by using force maiming or of unreasonable following propositions the Appellant raises cause, willfully person or who shall support appeal: of her permit any of said acts to be procure or § upon child error occurred when done I. Fundamental title. properly instructed as to jury was not offense; Appel- therefore elements of the (in pertinent part): § 843 reads and re- must be reversed lant’s conviction Children—Penalty § Abuse of trial; manded for a new willfully Any ... or ma- parent who shall did not conduct II. The trial court torture, maim, injure, unrea- liciously use review; judicial statutorily day mandated 120 age upon a under the force sonable suspending por- should consider the Court (18), pro- ... eighteen who shall sentence; Appellant’s tion of done, any permit of said acts to be cure or its discretion im- punished III. The trial court abused conviction be shall 3, 5, Penitentiary and 6 when it allowed State’s exhibits in the not prisonment State (em- evidence; photographs into ... exceeding imprisonment be admitted life added) prejudicial improper and admission of phasis were denied Ms. Hockersmith of those exhibits given No. 8 to the read Instruction trial; right to a fair fundamental follows: mistrial, counsel’s motion for IV. Defense of Murder person No be convicted comply did not ground that the State on Degree unless the State has the First discovery requests, should have been with each proved beyond a reasonable doubt granted; and elements are: of the crime. These element human; Second, First, of a the death to sus- The evidence was insufficient V. unlawful; Third, the death death was Murder tain the conviction for Fourth, Defendant; caused Abuse. Child year day within a and a death was caused these thorough consideration of After injury causing infliction of the death. of the us propositions and the entire record before read: Instruction No. 9 record, including original tran- appeal, parties, we have scripts, Wilful—Purposeful. and briefs of the does not re- “Wilful” conviction or to quire any determined intent to violate the REMANDED advan- should be REVERSED or to added) Proposition I wor- tage. (emphasis trial. We find new remaining thy and find that the of discussion No. addition Instruction propositions of error are without merit. malicious, willful, tor- the terms term defined ture, only force. The definition I that the unreasonable Proposition claims at (Oklahoma taken from the OUJI-CR properly not given at trial did instructions Instructions-Criminal) Jury Uniform § child abuse under 21 843 are proved beyond definition of torture. a reasonable doubt. In- among cluded those elements is the re- In addition to the 8 and instructions quirement that the acts be committed in gave court also 7 which instruction No. recit- manner, a willful or (empha- malicious 701.7(C). statutory language ed the added.) *3 sis in language The that recited statute is above. given Had the instruction Appellant further of “willful” claims that to instruction jury this not given “wilful”, phrase No. 9 contained the “or at defined the term to injure another” though jury even the there would have was been no never instructed problem, and the any that State’s prove the State had to assessment the that actions situation were a would have been all done in “willful” correct: of the manner. She also required elements it alleges prove was to given that the definition of would have “willful” as been contradictory, given, contained confusing was instructions as potentially and they and the fact that misleading. given The State were not as arguing counters one instructions, However, whole, instruction is not a decisive. prop- read as elimination erly injure of the intent define the elements of to included in the offense which definition is prove. contradictory it No. 9 required was to to the statu- tory language §of 843 specific and its intent it Appel should be noted that requirement. agreed lant to the instructions as sub We therefore REVERSE and REMAND mitted, any and did not submit additional this case for a new trial. properly instructions which would have de fined the they elements as she now claims should been Secondly, have defined. we DECISION repeatedly have held that where the instruc Judgment of the trial is RE- court given adequately subject cover the mat VERSED and the case REMANDED for a
ter, any
error is
waived
failure to
new trial.
object
Therefore,
or submit instructions.
our
plain
review
is
here
limited to
error.
JOHNSON, P.J.,
STRUBHAR, J.,
and
State,
(Okl.Cr.1994).
Simpson v.
Where the to A utilize statute is not of the strict 701.7(C) conviction, § for a variety it simply permits must it because convic- first establish that all of the elements of tion of proof the defendant without that he “Wilful”—Purposeful. Al- ‘Wilful” does criminal. his conduct was
was aware require any intent to violate though might be drafted such a statute injure advan- required is way such awareness tage. conviction, ... absence of such (O.R. 129-31). usually requirement there exists a mens requirement that defendant intend rea opinion, I the instructions As read physical doing he is in a sense know what have had the definition would been sufficient knowledge legality). phrase as to “or to (apart from its “willful” not contained the injure at 795. It is supra, another.” See Scott, Criminal 1 LaFave and Substantive which trou- phrase this “or to another” 1986). (West Law, company n. 1 3.8 majority. following As discus- bles in the Cimarron River dumps Plutonium who shows, no is merit to whatso- sion there subject knowing about it be without ever. *4 violating a punishment strict “willful,” ma- of which the The definition crime; pos- knows it company a who about incorrect, a is is based on jority would believe a mens rea. sesses It reads: statute. following given at The instructions were “willfully” applied to the The term when trial: omitted, or an act is done intent with which purpose willingness a or to implies simply NO. 7 INSTRUCTION or the to. commit the act omission referred A in the First person commits Murder require any intent It does not to violate a Degree when the death of child results injure or or to to injuring, tor- from or malicious the willful any advantage. maiming using or turing, or unreasonable added). (emphasis say To 21 92 wilfully person by force said or who shall define that the trial court did not “willful” to permit or of acts procure said correctly say statutory definition of tois the child to Section be done term, by legislative body of passed as 843 of this title. State, cannot this incorrect. This be. is rejected argument has that This Court NO. 8 INSTRUCTION special in- a the term “willful” means with person No convicted of Murder be State, 1332, v. 651 P.2d tent. See Tarver has unless the State in the First (Okl.Cr.1982) (appellant of 1334 convicted beyond a each proved reasonable doubt manslaughter killing in the of an unborn These elements are: element of crime. child; rejecting argument “will- quick in his First, human; Second, the the death of a intent,” this “specific ful” meant Third, unlawful; was death the death ‘knowing- ‘willfully’ equivalent is to “the word defendant; Fourth, caused ‘accidentally’ opposed or ly,’ as to ‘involun-' day year a death caused within a ”). tarily.’ injury causing of death. of the infliction injury in “know” will follow One need not guilty to of a crime. The murder- order be NO. INSTRUCTION 9 reality nothing by-child-abuse in statute is imports to a wish “Malicious”—The term specialized felony than mur- more a form vex, injure person. annoy another or B1 and Subsection C2 der. subsection Cf. pain “Torture”—Infliction severe eases, a Title 21. In such Section 701.7 or acts. unlawful kill, the intent to or defendant need have Rather, injure. danger Force”—More than it is “Unreasonable to even felony it to discipline. which allows ordinarily used a means of inherent itself distributing dispensing of controlled unlawful 1. Which reads: substances, trafficking illegal dangerous person B. A also commits the crime of drugs. degree a he takes the life of first when malice, regardless being, the com- human 2. Which reads: robbeiy danger- rape, with a mission of forcible degree person kidnapping, escape in the first weapon, cus- C. commits murder ous from lawful arson, degree degree from the willful tody, burglary, first when death of child results first
797 predicate murder. See serve as (Okl. State, 993, P.2d 731 1002
Johnson denied, 35,
Cr.), 108 cert. U.S. S.Ct. State, (1987); Wade v.
98 L.Ed.2d (Okl.Cr.1978).
P.2d 915-16 It makes no to
difference whether a defendant intended him, Mdnapping
kill victim or even his after him; it knew is sufficient he Likewise, wrong. act was it makes no
difference whether defendant intended child, injure her;
kill it is her even using
sufficient she knew unreasonable wrong. is a against
force the child was That here question, which was resolved
against Appellant. question at trial was whether using
Appellant knew she was unreasonable was, Legis- If against
force her child. she definition, doing improper
lative an she was
act; which, by legislative an act defini- also
tion, underlying could serve as charge degree of first murder. opinion
Because the concedes the instruc- law; adequately applicable stated
and because there no error in in- way Legislature
mens term the rea defined, respectfully
tended it to be I must
dissent.
Douglas MILLER, Appellee, L. Oklahoma, ex rel. DE
STATE
PARTMENT OF PUBLIC Appellant.
SAFETY,
No. 85114. Oklahoma, Appeals
Division No. 3.
June 2, 1996. Oct.
Certiorari Denied injuring, torturing, maiming willfully permit any procure or us- malicious shall said acts to be done ing person who of unreasonable force Section 843 of this title.