Horn v. State

Pursuant trial. new for REMANDED this Nevertheless, where even Court 3.15, the Oklahoma Rules Rule of unlawful, it of was a search finds Court Ch.18, App. Title Appeals, Only where Criminal automatically reverse. not does issued is ORDERED (2009), MANDATE ob evidence solely on is based conviction a decision. this filing of delivery and upon the search unauthorized an of by means tained defendant's over is admitted and seizure and CHAPEL, J. and JOHNSON, and If there P.J. reverse. C. this Court will objection ~ J.; in LEWIS, concur. a conviction sustain sufficient evidence evi unlawfully obtained of absence J.; result. LUMPKIN, concur found may be wrongful seizure dence, the Fite sustained. conviction harmless ¶ 19, 1993 OK

{16 shows record trial on based were instance convictions Burton's from seized more OK CR one of witness example, For home. a iden face Burton's III, Appellant HORN, part saw A. robberies Alton photo from police-provided him tified surveillance Additionally, there spread. Appellee. Oklahoma, showed STATE robbery, one which each video However, while face. robber's part F-2007-1240. No. guilt dispositive necessarily Oklahoma. Appeals of Criminal Burton's Court from seized itself, the evidence linkage damning especially an provided home 6, 2009. March clothing connecting robberies to both taken cigarettes robber by the worn of this absence In the Burton. robber presence linkage, evidentiary Burton's certain, but less much wouldbe robbery sites by the re proven sufficiently still arguably con or both one sustain maining evidence cireumstances, these Under victions. - wrongfully conclude that possible verdict. on the no effect had seized remanded must be Therefore, the case residence Burton's from seized

the evidence on retrial.

excluded trial a new for we remand Because Burton's issue, address do not we search however, that in note, We remaining claims. assis- ineffective his claim connection moved counsel, Burton

tance of supplementation hearing and evidentiary an of relief grant our Because record. motions. claim, deny we

moots

DECISION

{18 Sentence Judgment mo- Burton's is VACATED.

District supplemen- hearing and evidentiary

tions The case DENIED. the record

tation

TIB home, usually when City Midwest their school, and work mother

J.E.'s home siblings were when J.E.'s times often said house. J.E. rooms in other but McPhail, Assistant Benedict, Robin Jacob her restrain often would OK, Coun- City, Defenders, Oklahoma Public hands, grab- his her shoulders holding at trial. Appellant for sel her hands on wrists, his putting bing her Appellant moving. Attorney, her from keep II, to Lane, neck District Wesley C. tight so vagina "was Attorney, her that told J.E. District Carlson, often Assistant Suanne fast." come at him made State OK, for the that Counsel City, Oklahoma [she] trial. evening to one testified also T3 J.E. Assistant, De- Baze, Chandler Kim Public him to her with took Appellant 1997 when Ap- for OK, Counsel City, fender, Oklahoma he College where Community City Oklahoma appeal. on pellant testified guard. J.E. security as a worked out- Edmondson, Attorney General a bench him on waited she Drew that as W.A. pants her, his pulled Harris, side, Assistant approached Keeley L. he Oklahoma, and penis his OK, out enough, took City, Coun- just far General, down Oklahoma Attorney her he held said She in mouth. her forced appeal. on the State sel he it where moved and hands both head with it. wanted OPINION from Mid- family moved. InT4 LUMPKIN, Judge. was Appellant where Beaver City to west III, Horn, tried was A. Alton Appellant T1 J.E, testified police. as a employed officer. 1-18) (Counts Rape Degree First jury for by home only in their continued abuse Oral 1114); Forcible and (21 0.S.1991, § at least that on testified She elsewhere. but 19-80) (21 (Counts Sodomy orally her to occasion, forced Appellant one CF-2005-4708, Dis- in the 888), No. Case car, J.E. police in the while him sodomize The trial County. Oklahoma Court trict his part of gun as carried Appellant said after and Counts court dismissed the time duty at on was job and he demurrer defendant's part the sustaining in incident to an also testified She crime. conclusion at the evidence to inter- to her forced Appellant where the defen- acquitted jury The case. State's trailer, near abandoned him course in an' jury found The 12-17. Counts dant on city airport. and remaining counts guilty (50) years fifty punishment recommended out moved J.E. In November T5 1-4, 6-11 of Counts biological in each imprisonment her live with to andwent home her (10) imprisonment years by ten and and stepmother. and father 20-22, 24-80. and mother, of Counts each Ada her in with back moved she ordering accordingly, sentenced court Appel- time, and Ada Horn By that Horn. concurrently to each run be- sentences divorce their separated had lant in the imposed anyone consecutively to sentences not tell did J.E. but in 2003. final come No. County, Case of Beaver District she was when until the abuse about judgment from her It being confronted CF-2005-4. After old. years appeals. Appellant sentence con- rumors about Woods Carrie roommate herself, told J.E. Appellant, cerning years trial, J.E. was time of At the time abuse. About stepfa- Woods about her Appellant, testified She old. said, mother J.E.'s phoned Appellant the time from her sexually ther, abused had every- before now apologize going "I'm years she was until years old was she mention did not Though he thing explodes." did she testified (1996-2000). J.E. old Mrs. phoned time, Appellant J.E. Appel- because the abuse anyone of tell why asked days later again a few Horn if she "disappear" her make threats lant's sleep- her about rumors spreading rooms was in different J.E. occurred abuse told. ing with him. As J.E. had not said anything T9 In his proposition first error, Appel- to her abuse, mother about Mrs. Horn lant contends the trial court erred in admit- spoke to people, several including ting Woods evidence of other crimes. Specifically, about the rumors mentioned Appellant. he complains of evidence of "consensual sex Mrs. Horn and urged Woods J.E. go to with Brandi McKeever involving statements police Beaver and from there she regarding Appellant's preferences" sexual referred to the authorities in City. Midwest and evidence of alleged sexual conduct with the victim which occurred in Beaver County T6 Near the time J.E. and Woods went to and was 'not the basis for the eriminal police, telephoned J.E. but charges filed in Oklahoma County. Woods phone. answered the Ap- Woods told 110 The record shows pellant the State filed a J.E. had told her something and pre-trial Notice of Intent your "this is chance to tell Introduce Evi your me side to dence of Crimes, Other specifically the sexu tell me anything ... says you She all have al offenses committed Appellant in Bea had sex. Is this Appellant true?" respond- ver County, in order prove to ed, Appellant's "I'm going you to tell things happened "motive, intent, identity and method oper have, shouldn't and I you can't tell it's ation." Six later, months the State filed an not true." - When Woods asked him if this other notice outlining its intent to offer evi happened when years J.E. old, was 13 Appel- dence of Appellant's sexual assault on 14 hung lant up on her. year old A.H. gestae as res or in the alterna 17 Brandi McKeever testified at trial that tive prove to Appellant's "plan, design, intent she years was 18 inold 2000when began she and lack of mistake." The objected defense a relationship with Appellant. She said she to both motions and a hearing was held. At was a friend of J.E.'s older sister. quickly It the hearing, prosecutor argued the evi developed into sexual relationship. dence was admissible under O.S.2001, 12 McKeever testified that in comparing 2404(B) § her to and 12 O.S.Supp.2007, 2418(A). § wife, Ada, his then Appellant told her she Defense argued counsel the evidencewas not tight "was so that [she] made him come fast." relevant and the application 2413(A) $of vio McKeevermarriéd Appellant in October lated 2004 his constitutional rights and could not and divorced him in January 2005. applied be McKeev- retroactively to his case. The er testified that air court "clearing before overruled the objection defense their marriage, she asked Appellant if there admitted evidence under both §§ was anything he 2404(B), had not told her." She said and 2414.1 Appellant told her that when J.E. was 12 T11 Now on appeal, Appellant argues years old, J.E. walked on Appellant having that 12 O.S.Supp.2007,§ 2413 is unconstitu friend, with J.E.'s "A". sex Later day, tional as it violates his equal protection and J.E. give tried to Appellant sex, oral but he process due rights under the 5th and 14th pushed (J.E. away. her testified she had a Amendments to the United States Constitu friend A.H. who would spend often night tion II, § Art. 7 of the Consti house). Oklahoma MeKeever said that at anoth- her tution. The record in this case reflects that time, Appellant told her er "some women prior trial, to Appellant § claimed 2413 vio found it a turn on to be held down they as if lated his process due rights. However, he were being raped." raised no claim regarding equal protection. 18 The preéented defense no witnesses Therefore, while preserved has his but argued the State prove failed to beyond a process due claim for appellate review, he reasonable doubt that Appellant committed has waived equal his protection claim for all the charged offenses. plain but error review. Simpson See v. 1. Title 0.$.Supp.2007, § 2414 is the same as companion to Rule 413 and allows admission of except pertains that it admissibility the defendant's other acts of child molestation in of evidence of other acts of child molestation in cases where the defendant stands accused of cases in which the defendant is accused of child child molestation. The federal courts often ad- molestation. dress Rules Fed.R.Evid. Similarly, 414 is a together. 413 and 414 feder under guaranteed protection 690, 'equal ¶ 11, P.2d 40, State, CROK . City Ed Callaway v. constitution."); 'al 693 104,106 ¶ 8, 791 P.2d mond, CR 1990OK oppor first this Court's 12 This is T 2Art. See. clause due 1n. ("[olur constitutionality range that review tunity to Const., a definitional 7, Okl. constitutionali analyzing coextensive, $ 2413. When counter federal with "[elvery presumption act, legislative ty of ..."). established well "It is part. constitution in favor indulged citizens to its be must protections may grant State duty of conferred it is act, and those expansive more ality of are acts OK harmonize possible, courts, whenever law." Gomez by federal v. the Constitution." ¶ Legislature CR ¶ 23, addition, P.3d Hall, 2008OK so. chosen State we do liberally con to be interpretation "Statutes independent "this Court's cir- objects provisions their constitutional effect Oklahoma a view 'with strued Id., 25 0.8. Court quoting Supreme States justice'" by United promote cumseribed provisions." federal similar a stat constitutionality interpretations "The 2001, § 29. 'clearly, palpa constitu federal unless upheld "if But Id. ute will construction States the United made fundamen provisions tional inconsistent plainly bly, and Howerton, 'sound rest Id., appears State quoting Supreme law"" tal con 157-158. this Court ¶ 16, decisions principles, CROK unconstitutionality a the Okla of of provisions equivalent struing the alleging "Parties Id. proof." of should the burden have Constitution statute homa harmonize Court Supreme States the United of those pro § 2413 Supp.2007, 12 O.S. Title 113 Id., constitution." federal the construing vides: at 33, ¶ 15, P.3d 168 CR OK 2007 the defen- in which case criminal In a A. Rule Federal verbatim 2413 restates Section of sexual offense an of accused is dant States 413(a). United the While Evidence of com- defendant's the of assault, evidence consti the rule on yet to has Court Supreme of offenses or offense another of mission the of 413, the decisions Rule tutionality of admissible, may be and assault sexual Rule interpreting appellate federal courts to any matter bearing on for considered rest constitutional finding it and 413 relevant. it is which in this guidance and offer principles sound to intends state the in which In a case B. § 2418. of interpretation analysis Court's attorney rule, the under offer Rule that said have {15 Federal courts to the evidence disclose shall the state for general to exception an 413, "provide[s] wit- defendant, including statements 404(a) prohibits Rule codified rule the substance summary aor nesses purpose for of evidence admission of- to be expected testimony that to commit showing a defendant's propensity (15) days before fifteen fered, at least Benally, 500 v. States United acts." bad time later such date of at scheduled Cir.2007). also (10th See 1085, 1089 F.3d cause. good may allow court as 379, 387 Dillon, F.3d 532 States United 418(a) be construed Cir.2008)(Rule shall rule (5th This admis C. "allows of evi- or consideration admission limit assaults sexual prior of evidence sion rule. any other under dence pro show including to purpose, any relevant cases."); United assault in sexual pensity, (7th 820, 828 F.3d 478 Hawpetoss, Equal States Process {14 Due Oklahoma's exception (Rule an Cir.2007) "create[s] 413 as those the same are provisions Protection evidence' 'propensity rule general Sa See Constitution. the Federal found ].") federal 404(b) Numerous 1995 OK found City, in [Rule City Oklahoma watzky v. 413(a) due withstands ("[tlhe Rule right found 785, 786 courts ¶ 4, 906 See challenges. protection equal process Okla under guaranteed protection equal at F.3d 387; Benally, 500 Dillon, at F.3d 532 in consistently been has Constitution homa's 823; United at F.3d 1092; Hawpetoss, right coextensive terpreted States v. Seymour, (6th 468 F.3d propensity evidence in a defined class of Cir.2006); United States v. LeMay, 260 F.3d cases. Its rationale for sexual assault cases (9th Cir.2001). includes the assistance it provides in assess- ing credibility.... 116 In conducting Rule 418 process due based analysis on the premise that Rule 418 in United States v. Enjady, sexual as- (10th highly F.3d saults is Cir.1998), prove relevant the Tenth Circuit Court Appeals crimes, commit like stated: justifies and often risk of prejudice. unfair Congress prove order to thus in- due violation tended that rules excluding defendant must show relevant evi- Rule 413 fails dence Id., be removed." at "fundamental fairness" test and "vio late[(s] those fundamental conceptions 119 The Tenth Cireuit said that "[the justice which lie at the base of our civil and principal arguments that Rule 413 is uncon- political institutions." Dowling v. United stitutional based, at part, least in on the States, 342, 352-53, U.S. 110 S.Ct. assumption that Rule 403 is inapplicable." (1990) (citations 107 L.Ed.2d 708 Id. However, the Court found that admis- omitted). Supreme quotations Court sion of evidence under subject 413 was to the has defined narrowly those infractions that balancing of Fed.R.Evid. 403: violate fairness, fundamental and declared Supreme recognized "[bleyond specific guarantees enu prior instances of violent behavior are an merated in the Bill of Rights, the Due important indicator of future violent ten- Process Clause has operation." limited Id. dencies. Nevertheless, without the safe- 674; S.Ct. at see also United guards embodied Rule 408 we would Lovasco, States v. 789-90, U.S. hold the rule unconstitutional. S.Ct. 2048-49, 52 (1977). L.Ed.2d 752 Rule 403 requires that if the trial court 134F.3d at 1430. concludes value of the simi- T17 In Enjady, the argued lar crimes evidence is outweighed by the the historic prior exclusion of bad acts evi- risk of unfair prejudice it must exelude the dence prove to propensity to commit the evidence. But the exclusion of relevant charged crime is so basic to our criminal evidence under Rule 408 should be used justice system that it falls within the narrow- infrequently, reflecting Congress' legisla- ly, "fundamental fairness" arena. defined judgment tive that the "normally" The evidence Tenth replied Circuit practice "[that the should be admitted ... Considering the [of excluding prior bad acts prove evidence to safeguards of Rule we conclude that propensity] is ancient does not mean it is Rule 418 is not unconstitutional on its face embodied in the Constitution." 134 F.3d at as a violation of the Due Process Clause. 1482. The Court recognized that "[mJlany (certain F.3d at procedural 1432-1438 citations practices-including omit evidentiary ted). rules-that have long existed have been changed without being held unconstitutional. T20 More recently in United States v. of the Federal Rules of Evi- Benally, (10th enactment 500 F.3d Cir.2007) the dence and subsequent amendments are ex- Tenth Cireuit said: amples." ("[vlarious Id. exceptions to this Federal Rules of Evidence 418 and 414 exclusionary rule have developed. For ex- address propensity evidence in the context ample, prior bad acts may evidence be used of sexual assault and child molestation. prove motive, to opportunity, intent, prepara- These provide rules an exception to the tion, plan, knowledge, identity, absence of general rule codified in 404(a), Rule which accident, mistake or impeach. to See, prohibits the admission of evidence for the eg., 404(b),405, Fed.R.Evid. 406,608and purpose of showing a defendant's propen- 609.") Id., at 14830-1481. sity to commit bad acts. Pursuant to T18 The Tenth Circuit noted that "[in 413(a), Rule when "the defendant is ac- passing Rule 418 Congress believed it neces- cused of an offense of assault, sexual evi- sary to lower the obstacles to of dence of the defendant's admission commission time was at the as it the law land or the as- sexual offenses or offense another effect: took constitution admissible, may be considered the is sault legisla- deny to the to which it seem to any that would matter For bearing on its 414(a) identi- alter, contains amend change or Rule to power the relevant." ture is every accusations is to know that related Yet we language law. cal con- law-making depart- with Consistent day's practice molestation. child laws, repeal old to admission government regarding ment intent gressional the defen- tending to show new, change remedies. evidence enact assault sexual commit dant's not demand does principle "lib- molestation, are "courts child of time shall any point existing at laws uncharged prior evidence erally' admit of remedies any forms or that irrepealable, evidence where Even offenses...." sex necessarily continue. shall however, relevant, to be determined rights fundamental certain It refers admissibility of Rule 413/414 justice, of which ours system of which test, balancing the Rule subject If derivative, recognized. always is a relevant exclusion permits pro- in the disregarded, these is sub- value "f condemned person is by which a ceedings un- danger of by the outweighed stantially then life, property, liberty or loss of to the " prejudice." fair by "due has not been deprivation omitted, (footnotes at 1089-1090 F.3d law." course omitted). citations (cita 37, ¶30, P.2d at 291 1996 OK that due has stated Court omitted). 121 This tions Constitutions," written "older case, clearly the record present «T22 In 'law of synonymous "is phrase notice and pre-trial received shows (sic)." -Magna Charta as found land' concerning the be heard opportunity 70, ¶ 5, 14 P.2d Hollins, 54 Okl.Cr. Parte Ex crimes/propen- the other to use intent State's Dartmouth (1932). generally See argues he appeal, Now on sity evidence. Wheat.) 518, (4 Woodward, 17 U.S. College v. him denied admission (same (1819) "Due principle). 4 L.Ed. in violation fundamentally fair trial right to rules, is not legal unlike some process, process. of due un content a fixed conception technical 1, ¶ 4, State, 2007 OK CR € 23 James time, cireumstances." place and related overturned OK CR Hatch v. Myers adopted rule latitude" "greater and Res 284, quoting 290-291 P.2d Cafeteria 1021, finding 25, P.3d 17 2000 OK Union, McEl Local Workers 478 taurant dissent, I addressed my In "unworkable." it 1748, 1743, 6 895, 81 S.Ct. roy, U.S. 367 rule. On latitude" "greater history of the Rather, process (1961). "due 1230 L.Ed.2d law, part I stated case of cited basis pro procedural such and calls flexible exist [has] latitude' 'greater idea of that "the demands." particular situation as tections prior many years in Oklahoma ed Brewer, U.S. Morrissey v. quoting Id. through the flip Moreover, you if Myers ... L.Ed.2d 484 92 S.Ct. code, that you will see pages of our requirements (1972). quintessential "The differently and treated are crimes sex-related to be opportunity notice and process due is a common area in this latitude greater Bruner v. Id., also at n. 3. See heard." has re Legislature theme, our one 41, 16, P.2d OK CR Myers, 1975 ¶¶ 8-9 1,CR 2007 OK recognized." peatedly notice ("[in reasonable eriminal VPJ., (Lumpkin, at 258-59 & opportunity adequate an charges and omitted). (footnotes dissenting) elements basic them are to defend excluding Hatch, further admitting this history process.") 24 Our due at best. ambiguous

stated: Cas- States However, in United stated remembered also be it must Cir.1998): (10th tillo, F.3d 874 the law simply more denotes term T8M4A

The existence of ambiguity does not 128 For the foregoing reasons, Appellant leave us uncertain of the constitutional re- has failed to § show that 2418 violates the sult, however; rather, it govern- favors the Due Process Clause of either the State or ment ... It [government] is not the Federal Constitution. bears the burden of demonstrating that its 129 Appellant § also claims that rooted," 'deeply rule is but rather [the de- violates his right equal protection because fendant] who must show that the principle unéqual allows similarly treatment of situ procedure (and violated the rule al- ated defendants concerning a fundamental legedly required by process) due is 'so right. The same challenge to Rule 413 was rooted in the traditions and conscience of raised in Emjady. There, the Tenth Circuit ' people our as to be ranked as fundamental. said:

140F.3d at 881-882. If a law neither burdens a fundamental Here, Appellant has failed to show right targets nor a suspect class, we will the exclusion of sexual propensity evi- uphold legislative classification long so dence "deeply is so rooted" in Oklahoma as as it bears a rational relation to some to fall within the narrowly defined "funda- legitimate end ... Under process our due mental fairness" arena. analysis Rule 413 violate, does not on its face, a defendant's fundamental right to a Further, 2404(B) § allows for the in fair trial. Thus the rational basis test troduction of evidence of a defendant's other applies, and a "strong presumption of va- crimes or bad acts "proof to show motive, lidity" attaches to the evidentiary classifi- opportunity, intent, preparation, plan, knowl cation made in enacting Rule 418 ... Con- edge, identity or absence of mistake or acci gress' objective of enhancing effective dent." O.S.2001, 2404(B). § Section prosecution for sexual assaults 2404(B) legiti- is a virtually the same as Federal mate interest. The nature of sex offense 404(b). Rules of Evidence 2404(B) $ That prosecutions frequently involves victim- permits the introduction of evidence of a witnesses who are traumatized and unable crimes, defendant's other despite the risk of to effectively testify, and offenders often prejudice, weighs heavily in favor of the con have committed many similar crimes be- § clusion that 2413 does not fall within the fore their arrest on the charged crime ... narrowly "category defined of infractions equal Defendant's protection claim is with- that violate fundamental Castillo, fairness." out merit. 140F.3d at 881. (citations 134 F.3d at omitted). 1433-34 1 27 Section 2413 specifically states, "[this 130 Enjady is illustrative of many rule shall not be construed to limit the ad which, federal cases in addressing equal an mission or consideration of evidence under protection any challenge, back rule." Supp.2007, O.S. referred their due analysis 2413(C). to find that By language, Legisla challenged rule does not impermissibly ture clearly inter intended relevant propensity evi fere with the defendant's right fundamental dence to be treated as other relevant to a fair trial. See Enjady, 134 1434; F.3d at subject and thus to the weighing of Castillo, 140 F.3d at 883. See probative LeMay, its also value prejudice versus its as set 260 F.3d at 1026. forth in O.S.2001, 12 §§ 2402 and 2403.2 With safeguards the put in place by these 31 This Court has had opportuni- several sections, any process due concerns posed by ties to conduct a review under the Equal the admission of the § evidence under 2413 Protection Clause. In State, v. Crawford are eliminated. 1994 58, OK CR 88, we stated: O.S.2001, 2402, Title12 § provides:"Allrele may be excluded if its value is vant evidence is admissible, substantially as otherwise outweighed by danger except the of unfair provided by the States, Constitution the United prejudice, issues, confusion of the misleading the the Constitution of the State of jury, delay, undue presentation Oklahoma, needless of cu by statute or this Code. Evidence evidence, which is not mulative or unfair and harmful sur relevant is not relevant, "Although admissible." prise." O.S.2001, 12 § 2403.

785 case, does present the In T32 constitution the analyzing for a he is that he establish nor can argue, not Protec Equal the under a statute ality of Castillo, 140 See class. suspect aof member forth set previously bas been Clause tion ("the [on 883 at F.3d (Okl.Cr. 1265 State, P.2d 720 v. in Swart minor] aof abuse sexual abuse sexual stated: 1986). we In Swart ... While suspect class a belong to not does constitutionality of a stat- the analyzing In of child accused those treat does rule the clause, the protection equal the under ute eriminal differently than molestation a two developed has Supreme Court TU.S. not sub- a classification such defendants, that held has First, the Court review"); test: tiered standard heightened ject to a strict requires analysis protection 154, "equal 15, 12 State, CR 2000 OK Wackerly v. ... that he classification argue legislative not a serutiny of does 1, ("Appellant 17 P.3d inter- impermissibly class..."). classification the suspect when of a a member a fundamental exercise the with feres sur § 2418 cannot Instead, argues '[ he 33 disadvan- peculiar to the operates right or statute analysis as scrutiny a strict vive Classifications class." suspect a tage of a fundamental interferes "impermissibly upheld be serutiny will to strict subjected right to be law-the Oklahoma right under an to substantially related they are only if charged convicted, by evidence if at all, end compelling or important extremely offense similar by evidence and not offense not does classification If government. the crime commit to a show which serutiny strict under analysis invoke Ap argument his support In charged." under analyzed is then tier, legislation State, CR 1997 OK Bryan v. cites pellant Under test." relationship 338, "rational Roulston 356 ¶ 33, P.2d 15, 935 ¶ 11, P.2d classification legislative 307 a approach, CROK 1957 arbitrary, and reasonable, not merely reiter be "must this Court cases In both difference ground upon some rest forth above. must rule set well established ated relation as a to it and substantial referred having a fair case neither persons ex recognized that all so legislation, even right and object of the fundamental . treated case be in this shall issue rule. similarly cireamstanced to the ceptions evidentiary rule- classifica- challenged short, state of a application alike." legiti- ato right. "rationally related fundamental, constitutional be must tion second that not shown Under has Therefore, Appellant interest." state mate vio right or Equal fundamental violate violates § does tier, "a State trial. clas- a fair right merely his because lates Clause Protection imperfect." laws 2418 does made {34 sifications Having determined Appel right, a fundamental not violate (citations at 90 58, 15, P.2d CROK member is a that he to show failed has lant Hatch, OK CR omitted). also See equal purposes class "suspect" aof have ("[llegislatures ¶¶ at 289 21-22, P.2d rational apply the we will analysis, protection laws passing when discretion range of a wide Supreme "The relationship test. differ treating some the effect relationship rational under stated equal an To show ... others ently from not be will statutory discrimination test, "[al must show Petitioner violation protection reasonably may of facts any state if aside set impermissibly § 1089 Supp.1995, 22 O.S. Crawford, it." justify conceived fundamental aof exercise his interferes 91, quoting ¶ 8, OK disadvan peculiar operates right U.S. Maryland, 366 McGowan suspect class. aof a member of him tage (1961). L.Ed.2d S.Ct. showing make fails petitioner aIf inter- governmental discussing the In T 35 seru- the strict (which application requires Circuit Tenth the underlying Rule est stat the prove standard), must he tiny legitimate said: to a rationally related is not ute enhancing effective objective Congress' rela 'rational the interest, called also state legiti- a assaults sexual prosecution ") tionship test.' (86

mate interest. The nature of sex offense to Rules 418 and 414 must be serupulously prosecutions frequently followed involves victim- balancing probative the value of witnesses who are traumatized and unable the propensity against prejudi- its effectively testify, and offenders often cial effect. have many committed similar crimes be- 140 Sections 2418 and 2414 clearly fore their arrest on the charged crime. subject to the balancing § test of In Emjady,134F.3dat1434. determining the relevance of propensity evi dence, the 136 In federal United courts Hawpetoss, States v. very set out specific procedural (7th Cir.2007) requirements to be F.3d 820 fol the Seventh Circuit lowed. While we find requirements these stated: instructional, state trial courts are not obli Congress enacted new rules [Rules these gated strictly adhere to those mandates. 'protect and 414] to public [ ] the from Instead, courts consider, should but rapists and child molesters.... child be limited 1) to the following factors: how cases, molestation history example, clearly prior 2) act has proved; been how similar acts tends to be exceptionally pro- probative the evidence is of the material fact bative because it shows an disposi- unusual 3) admitted prove; tion of the defendant seriously how that simply .... does disputed 4) is; material fact whether exist in people.' ordinary can government avail itself less 478 F.3d at note 7. prejudicial evidence. When analyzing the 1 37 "Unfortunately, sex crimes are crimes dangers that admission of propensity evi of propensity-a proclivity that rarely goes poses, dence the trial court should consider: away.... Sexual crimes against committed 1) how likely is it such evidence will contrib children, women and therefore, present spe ute to an improperly-based jury verdict; and cial evidentiary issues person when a 2) the extent to which such evidence will charged with such crimes is bound over and distract jury from the central issues of brought James, to trial." 2007 OK CR the trial. Enjady, See 134 F.3d at 1433. ¶¶ 2-4, 152 P.3d at (Lumpkin, VPJ., 257-258 Any other matter which the trial court finds dissenting). relevant may be considered. In particular, 1838 The need for corroborating evidence proof prior may act largely rest in cases of child sexual abuse due to the upon testimony of the victim act, of that prior highly secretive crime, nature of the together the credibility of that individual would be a protection public from sex factor for the court's Further, consideration. offenders history whose of similar acts tends the propensity evidencemust be established exceptionally be probative, justifies by clear and convincing evidence.3 If the enactment of provides 2418 and a rational defense objection an to the admission raises basis for its By enactment. enacting § 2413 of the propensity evidence, the trial court Legislature determined that evidence of should hold a hearing, preferably pre-trial, other similar crimes involving sexual assault and make a of its findings record as to the and child molestation probative of a de- factors set forth above. fendant's propensity to commit such crimes. 141 In present case, the purpose for Section 2413 does not violate the Equal Pro- introducing evidence of Appellant's prior sex- tection Clause of either the State or Federal ual assaults was provide jury constitution. probative propensity evidence. The trial 139 Anticipating this finding, Appellant clearly court weighed value of asserts that even if this Court $ finds 2413 the propensity prejudi- does not violate Due Process and Equal Pro- cial effect. The trial court did not abuse its tection Clauses, procedural requirements discretion in finding the relevance of such by mandated the Tenth Cireuit with regard evidence was not substantially outweighed by recognize We the federal require courts Oklahoma, \ the evidence must be estab- propensity evidence to pre- established lished clear convincing evidence. ponderance However, we find evidence.

787 in effect Limitations of The Statute I 45 of confusion prejudice, unfair of danger the commit- were offenses charged the the time the tendency to mislead issues, its or the 152(C). § That Supp.1994, 22 O.S. 33, ted was State, CR 1999 OK v. Martinez jury. See | provided: (the section admlsmblhty of 813, 822 ¶ 25, P.2d 984 rape of or the crime trial for the Prosecutions of "C. discretion the within is 888, to Sections sodomy, pursuant discretion of forcible abuse a clear unless and judge, Title 21 of the 1111.1, 1114of warranted).4 1118or not be will reversal is shown Statutes, commenced denied be is shall of assignment Oklahoma This error (7) discovery years after the seven within 5 added). (emphasis of er crime." proposition of the his second In fair a denied was ror, contends Appellant he [ Day, 1994 OK 46 In State Appellant misconduct. by prosecutorial trial stated: 1096 this P.2d remarks several made prosecutor the argues run begins limitations of The statute lessen designed to argument closing during for 'discovered' has been the offense impermissibly proof, of burden State's the (C) 152(A) when of Sections purposes credibility the truthfulness vouched victim) other (including the person Appellant attacked victim, personally the of pari someone wrongdoer or than the calling, and relied name improper through knowledge wrongdoer has the delicto in evidence. facts (i) @) criminal act and the of both dis- has not been crime ... [Thhe nature mis prosecutorial of "Allegations that the erime any period during covered a convie of reversal not warrant do conduct fear induced of because is concealed such was effect cumulative the unless tion anyone wrongdoer, or by the made threats trial." a fair of deprive the [as] wrongdoer. the delicto with acting pari ¶ 197, OK CR Warner of limitation this statute of application The thoroughly consid Having 838, 891. P.3d determined legal determination ais individu both challenged comments ered issue. a threshold judge as by a they did not cumulatively, find we ally and is- jurisdictional is a limitations statute assignment This fair trial. a deny Appellant asserted, is presumption and, onee sue is denied. of error and the State has run the statute presump- this to overcome obligation error, proposition In his final tion. charges many contends ¶¶ 12-14, at 1098. OK CR year the seven outside case occurred in this trial, filed a mo- the defense Prior to limitations, prosecution therefore statute prosecution Further, to dismiss he tion asserting barred. were offenses of those limita- by the statute barred" was "time meet its bur failed that the State argues disagreed The defense tions. crimes were charged showing that den had been the statute argument to State's reported they were before not discovered Pro- to J.E. threats by Appellant's tolled in June authorities proper development aof CR Committee from the may have resulted Any jury bias that 4. - this instruction. to admit decision court's instruc- mitigated the court's been would have § In 152 and jury's Legislature the evidence. amended use of regarding the tion "discovery" as used verbatim from taken the term expressly which is defined No. Instruction said, Legislature Jury limitations. Instructions-Criminal the statute Uniform Oklahoma section, 'discov- upon C of this 12 O.S. subsection (2d) (OUJI-CR) used in and based 9-9 "Ials sexually physical or date that 2404(B), ery' that the jury instructed means age involving under a victim proof of crime related to be considered was not a Jaw (18) age reported to years purpose eighteen the limited but for guilt or innocence (1) including one up agency, to and plan. enforcement scheme showing Appellant's common birthday child." of the eighteenth year from the drafted jury new instruction Until the time the retroac- provide for Legislature did This instruction §§ pursuant appli- and its this amendment application of tive jury's consideration to limit sufficient here. an issue is not cation request OUJI- to the We submit evidence. ceeding on presumption that the statute DECISION run, had the trial court found the presump- Judgment and Sentenceis AP- tion had been rebutted as there was suffi- FIRMED. Pursuant 3.15, to Rule Rules cient Appellant's evidence of threats of harm the Oklahoma Court Criminal Appeals, to the victim to toll running of the stat- 22, Ch.18, Title (2008), App. the MANDATE ute. ruling This supported by the record. upon issued delivery and filing ORDERED repeatedly J.E. testified that she did of this decision. anyone not tell of the offenses at the time because she was Appellant scared of LEWIS, J.: concur. scared he something would do to her or her mother. She said that every time he abused V.P.J.; JOHNSON, A. speciaily concur. . her, he would tell her that if she was to tell anybody "that things bad happen could to us JOHNSON, C. P.J.: concur in result. both" and that he could "make disap- her pear." J.E. testified she felt Appellant J.;: could CHAPEL, dissent. carry out his threats as he worked as a A. security JOHNSON, guard Vice gun. carried a Presiding Judge, specially concurring. 49 On appeal, Appellant argues that the evidence was insufficient to show that he T1 I coneur. The fact that Section 2413 threatened the victim in light of evidence may fraught be with the risk being unfair- that she returned Appellant to visit after he ly applied at trial-and I believe it is-does sexually abused her. This is not an accurate not make it unconstitutional as written. restatement of testimony. J.E.'s She testi- T2 The majority opinion clearly requires fied that she Beaver, returned to after hav- trial courts to rigorous undertake a ing moved analysis family home, out of the to visit her of the propensity proffered under mother. J.E. said she did not Appellant see Section 2418 to determine whether its admis- as he and her mother had "already split up". sion would fail the overarching balancing test 1 50 J.E. testified the sexual abuse stopped of Section 2408 and violate the due when she moved out of family home in requirement of fundamental fairness. We 2000. Charges were against filed Appellant must assume those courts will follow the law. on August 2005. The record supports a Any showing to the contrary must be judged finding threatened the victim by future case future case. and because of the threats and the they fear her, induced in J.E. did not tell anyone about CHAPEL, J., dissenting. the abuse. The seven year statute therefore tolled until 2000when J.E. told her person A only should convicted roommate about the abuse and reported she evidence of the crime with which he is it to the Beaver County authorities and the charged.1 This is a bedrock principle of County Oklahoma authorities. Contrary to American jurisprudence, and this Court has Appellant's argument, years seven did called it fundamental. 2 The State's case begin running from the date of the earli- must stand or fall based on the evidence of est offense. prosecution begun in 2005 charged, crime not on evidence that the was within the year seven statute of limita- may have committed a crime at tions, and the trial court properly overruled time, some other per some other the motion to dismiss. This assignment of son. Generally speaking the may State error is denied. prove case showing person that a upon Based the foregoing, appeal committed and is inclined to commit similar ‘ is denied. crimes, and thus probably committed the e.g., 1. See, Welch v. State, 2000 OK CR 2 P.3d 2. Roulston State, 1957 OK CR 20, 307 P.2d 356, 365; v. State, 1997 Bryan OK ¶ 33, 338, 356; Burks v. 1979 OK CR 10, 594 P.2d 771, 772. changed the Evidence reason, Legislature pire, we do not For this charged. crime the unworkable model. to resurrect merely Code crimes evidence admit months after James was handed a few a to Within has a defendant that shows Legislature provided in Title cireum- down limited acts. Under bad commit cases, that, evi in sex offense may appro Section be evidence crimes stances has committedoth that the defendant an dence far as it addresses only as but priate, "may is admissible er sex offenses charged.3 the crime aspect of bearing any matter to its on considered for tension, particularly rule creates T2 This 6 That last clause is it is relevant." which the de- involving sex crimes where in cases it illuminating, because does particularly Horn, or fendant, the same commits like the other sex that the evidence of require jury years. A several crimes over similar any aspect of the relevant to crimes be these other crimes may find the evidence crime, propen a charged other than to show commit- the defendant proof that compelling sity type that of crime. to commit crime, natural- charged and the State ted dealing clause because it emphasize it. When T5. I this jurors to hear ly wants majority discussion of skews tempting to loosen is predators with sexual entire it jurors can so Relevant evi on evidence constitutional claims. the restrictions Horn's any tendency is "evidence dence commit sex propensity having about this hear no crimes have where the other fact that is of crimes even make the existence charged crime. Over of the ac consequence connection to the determination continually attempted have prosecutors probable probable time than it tion more less kind of evidence. introduce this the evidence."7 Section would be without that, provides where sex offenses responding to the years ago, 13 Several concerned, need not other crimes evidence trials, in this this evidence use of increased charged to the offense- any connection present latitude in greater that found is, in relevant as defined it need not be appropriate in ing other crimes evidence From the outset Section 2401. Section determining in cases. 4 sex offense pro in these cireumstances, assumes that, rules, has evidentiary this Court appropriate appropriate and relevant pensity evidence reviewing sev advantage of time. After although no connection in and of itself it greater years which allowed of trials eral question I charged crime. believe to the (otherwise inadmissi and admitted latitude by this case is posed by the statute and ble) crimes, we concluded of other constitutional, assumption is to the whether that this modification in v. State James majority fails I conclude it is not. evidence was unworkable rules of standard all. question to address evi- found that the standard practice.5 We rules, admission of evi dentiary prohibiting given majority opinion takes as T6 for sex merely propensity which shows dence 2413 other crimes relevance of Section directly bearing on the rather offenses that certain assumes evidence. The statute crime, rights protected the charged better evidence, inadmissible propensity otherwise provided and the State the defendant and thus propensity it is because fair trial. irrelevant, as when a sexual is admissible decision, majority also assumes charged. The sault is response to this reasoned T4 In relevant, of actual and our review because experience propensity evidence on based is, says though it is not even the statute greater latitude in which the use cases traditional under the or admissible the fair relevant did not achieve admitting evidence majority's de provisions. The code must every eriminal as to which ness 2413(A). Burks, Section at 772. 594 P.2d 3. - 6. O.S.Supp.2007, involving child to crimes this was extended State, Myers 2000 OK CR 4. molestation. _ 1029-30. 0.$.2001, § 2401. 7. 12 2007 OK CR James v. issue, propensi fense of this evidence assumes that majority opinions relies on ty be and evidence should is relevant from various lower federal courts find prove may that a defendant commit other sex 418(a) is, Rule is constitutional. That majority offenses. The relies on Tenth Cir law, rather than follow well-settled Oklahoma cuit cases which state "evidence of other majority prefers rely on federal law highly prove sexual assaults is relevant supporting position that propensity evi This, to commit like crimes." 8 of dence in sex offense proper cases is course, precisely what Oklahoma law has should be majority opinion admitted. As the always prohibited. notes, itself its author dissented James. acknowledging While that Oklahoma's histo was tried after Horn 2418 took Section ry admitting propensity evidence "is am part effect. As case-in-chief State's best",9 biguous at majority author now is prosecutors introduced evidence that Horn taking advantage of interpreting federal law had committed or admitted to sex offenses a federal rule in previ order to confirm his thirty separate other counts dissenting ous view as the law in Oklahoma. charged in the Information. This evidence statutory was admitted under the new codifi- I majority 9 The concludes that Horn's due cation of the "greater discredited process rights latitude" by are not violated Section appeal, rule. On Horn claimsthat admission doing 2418. majority so the narrowly of this evidence rights equal violates his restricts the process fundamentals of due protection process: and due because he opportunity is notice and the to be heard. I charged offenses, with sex disagreed otherwise inad- with this narrow formulation him in past may missible evidence and continue to do so.10 This against used that could not against be used defendants case, statute, require this this Court to charged with other criminal offenses. To judgment upon exercise its "interests of soci question resolve this this Court ety must decide pushing opposition in directions." As I below, discuss whether to stand long as as our in propensi irrelevant decision James. disagree I with the majority's ty decision to evidence against defendant, is admitted abandon in newly James favor of the enacted the fact that he has notice of and an opportu statute. I statutory believe this crumbling nity to be heard regarding that evidence does against barriers other crimes evidence not cure process the due violation. process violates equal protec- both due {10 majority The ultlmately finds that tion. Section 2413 does not process violate due only because the The provides purpose statute statute's explic that the new is to itly propensity allow evidence sexual as rule "shall not be constrained to limit cases, sault merely to show that a admission or consideration of evidence under any likely is other rule"12 to commit similar majority The crimes. The ma reasons this, jority admits language but finds that poses ensures that "relevant no problem because Section 2418 restates Fed propensity evidence" must be treated like 418(a). eral Rule of In the evidence, absence other subject relevant to weighing Evidence Supreme United States Court ruling probative its prejudice value versus its under Enjady, 10. Wallace v. United States v. 1995 OK CR F.3d 1427, 1431 (10th Cir.1998). See also V.P.J., United States v. Benal- (Chapel, specially 518-19 concur- ly, (10th Cir.2007). 500 F.3d 1089-90 The ring) (listing separate process fourteen due re- Circuit, Tenth and the other federal cases cited quirements found in various United States Su- majority, rely Congressional legislative on cases, preme Court variety to illustrate the history pronouncements. for these and similar ways process may require which due more There legislative is no history Oklahoma before than the opportunity basics of notice and to be and, course, this Court no evidence in the heard). support suggestions record to propensity evidence predictor is so accurate a of future 11. Rochin 342 U.S. 165, 171, 72 California, special behavior that relevancy bears in sex (1952). S.Ct. 209, 96 L.Ed. 183 offense cases. Op. at 783-84. 2413(C). 0.S.$upp.2007, 12. 12 if one readily apparent The ma This is it. provisions.13 Code Evidence in the stat- assumption, codified rejects that, procedural certain concludes jority admissible. ute, propensity propensity apply safeguards not, procedural no amount then If it is preserved. cases, due offense sex harm. majority finds can safeguard blunt safeguards procedural to be notice, opportunity an are sufficient 2413 violates find that Section 12 I also heard, possibility Legisla Protection Clause. Equal if its may be excluded citizens which affect may laws enact ture by the dan outweighed substantially value classifications long as those differently, as is confusion prejudice, unfair ger of to the achievement rationally related delay, need-. jury, undue sues, misleading the Legisla goals.18 the State's evidence, or of cumulative presentation less impermis- statute which may not enact a ture disagree. I surprise.14 harmful unfair exercise with a defendant's sibly interferes peeu- operates to the right or a fundamental convicting {11 someone I believethat of a him as a member disadvantage of pro liar showing he has of evidence the basis class, rationally relat is not or which suspect charged crime type to commit pensity The latter interest.19 legitimate state to a funda ed violates fundamentally unfair and is legislation can The State Such justice.15 applies here. category conceptions mental the differ grounds the be arbitrary, evidence presenting be content with must sub a fair and must have classifications ent crimes crime, any other plus charged the purpose, legislation's it has a to the because relation is admissible stantial evidence treated persons must be similarly situated and charged of the commission bearing on direct betweenthe stat al further, allowed See Anything connection crime. ike.20 objective vital is and its ute's community's sense 2418, the violates tion classification Equal to the “gives substance deceney,"16and fails becauseit play fair adequate 21 Statutory discrimina Clause." charged by Protection persons rights of ly protect any if state of facts set aside "willnot be tion I committing a authorities with crime.17 22 justify it." reasonably may be cre propensity evidence the use believe conceived prove there has the burden that The defendant risk constitutionallyunacceptable a ates statutory classifica basis for no rational he is convicted because bewill a defendant legiti advances a Usually, if a law tion.23 crime, type of particular - a likely to commit sus it will be interest government mate he showed the evidence than because rather tained, rationale is if its even charged. In the crime actually tenuous, commit did dlsadvantages partic or it evidence, law unwise, propensity 2418 case of Section seems cannot the law citizens-but groups of ular procedural mltlgated risk is disadvantaging purpose have the comforting,be finds majority safeguards exactly That is bearing its burden.24 group protect cannot safeguards those cause 841, P.2d majority again 1, OK CR 909 relies State, v. 1996 19." Trim Op. at 784. The 13. 892 P.2d 3, OK CR State, v. 1995 844; Clayton 500 Enjady, 1432-33, Benally, F.3d at 134 646, 654. F.3d at 1090. 632, Evans, at 116S.Ct. U.S.at v. 517 20. Romer 0.$.2001, § 2403. 14. 12 State, v. 289; at 924 P.2d 1627; Hatch, Crawford 58, 88,90-91. 881P.2d OKCR 1994 342, 353, 493 U.S. Dowling States, v. United 15. (1990). 668, 674, 708 107 L.Ed.2d 110 S.Ct S.Ct. at 632, at Evans, 517 U.S. 21. Romerv. 1627. Rochin, at 210. 72 S.Ct. U.S. at 16. 420, 426, Maryland, 366 U.S. v. 22. McGowan (1961). 1105, 6 L.Ed.2d S.Ct. 236, 60 Florida, 309 U.S. v. Chambers 17. (1940). 84 L.Ed. 716 476-77, S.Ct. 2000 OK State, 23. Wackerly S.Ct. 620, 631, 116 Evans, 517 U.S. 18. Romerv. (1996); S.Ct. 632-33, at 1620, 1627, U.S. Hatch Evans, 517 24. Romer v. 134 L.Ed.2d at 1627. OK CR does, by allowing propen- what constitutional, Section have found the federal rules sity against majority sex offenders which states that Oklahoma state would not be admitted other defen- Instead, courts need not adhere to them. dants. majority encourages trial courts to con- sider several factors before admitting the disagree majority's finding 18 I with the evidence, pre-trial hold a hearing where a legitimate a that Section 2413 advances state objects evidence, to the and make prosecuting interest sex offenses. The a record of the court's consideration of the certainly legitimate State interest enumerated factors. The bulk of these fac- convicting sex offenders. go tors to the evidentiary Section 2408 code successfully State convicted sex offenders for protections, involving proof years subjecting different, without them to a evidence, its relation to a material fact and looser, unconstitutionally standard of ad- is, disputed how fact if there is less missible other defendants. prejudicial available, it whether absolutely support There is no in Oklahoma likely jurors evidence will distract any case claim law for sex offenses contribute to an improper verdict. Of proved cannot be recourse to without other- course, these factors are worthless unless wise inadmissible other crimes evidence. you assume propensity evidence should be person admissible to show that a likely majority T 14 relies on a footnote commit similar crimes-without assump- Seventh Circuit case which states the federal engcted tion, it is not protect rules were relevant material fact public, trial, proved which must noting history that a of similar since it has no offenses is connection to charged for child crime. addi- molesters because tion, the record disposition shows an contains no such present findings unusual ordinary people.25 majority here and every statés does not indicate factor the trial court Legislature making considered in finding because enacted Section propensity that the it "determined that evidence was evidence of admissible. if Even one similar crimes believes trial court involving sexual consideration assault and of these child molestation factors alleviates the constitutional of a defen (and propensity dant's problems not), commit such crimes." I do there is no reason to This, find again, from the record fails to that Horn had equal protec address the the bene- fit of this consideration when Section 2413 tion claim unless one propensi assumes that ty propensity admissible, against evidence is was admitted and further as sumes that it is relevant though using even him. Even majority's has own reason- ing, admitting no connection to charged Horn crime. The majority without course, considering does both. these factors on Of if one the ree- as ord was sumes the error. propensity statute's provision is issue, constitutional without analyzing the T16 In addition to the pro inadmissible one will find there is no constitutional viola pensity evidence, presented the State evi tion. That is what the majority has done. dence that Horn had committed charged finding After no constitutional might crimes. tempted, One under those viola- tions, majority admits that cireumstances, the federal to find the admitting error in decisions on which it consistently hold propensity evidence was harmless. I relies cannot that under the federal rules this do before, so. As I have stated the issue only admissible specific is, where before this always, Court not whether a procedural requirements followed. guilty but whether he re - - While acknowledging ceived a fair trial.27 Horn was requirements, those convicted without which the federal part courts would not by inadmissible evidence introduced un- 25. 27. United Flores v. States v. 1995 OK CR 899 P.2d F.3d Hawpetoss, (7th Cir.2007). 7n. (Chapel, 1162, 1165 n. 5 V.P.J., concur- specially Wallace, ring); V.P.J., (Chapel, Op. 26. at specially concurring). I fail to see statute. an unconstitutional der fair described as procedure can 'be

how -I it was harmless. find that I do not dissent. CR 8 OK JAMES, Appellant

Daniel Cole Oklahoma, Appellee.

STATE F-2007-1052.

No. Appeals of Oklahoma. of Criminal

March

Case Details

Case Name: Horn v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Mar 6, 2009

Citation: 204 P.3d 777

Docket Number: F-2007-1240

Court Abbreviation: Okla. Crim. App.