Lead Opinion
OPINION
1 1 Appellant, Daniel Cole James, was convicted by a jury in Tulsa County District Court, Case No. CF-2004-3354, of Count 1: Rape by Instrumentation (21 O.S.2001, § 1111) and Count 2: Lewd Molestation (21 O.S.Supp.2002, § 1128). The jury sentenced Appellant to 85 years imprisonment on Count 1, and to 20 years imprisonment on Count 2. On October 28, 2007, the Honorable Thomas C. Gillert, District Judge, sentenced Appellant in accordance with the jury's recommendation. This appeal followed.
T2 Appellant was charged with sexually abusing B.M., the four-year-old daughter of a family friend, by placing his finger in her vagina and his penis in her mouth several times between August 2002 and May 2003. The child, who was nine years old at the time of this trial, testified that Appellant ejaculated in her mouth on more than one occasion. The State presented the testimony of B.M.'s older sister, to whom she first disclosed the allegations in 2004, and the testimony of Jamie Vogt, a forensic interviewer, who spoke with B.M. after B.M.'s mother notified the authorities. The State also presented evidence that over a decade before the instant offenses, Appellant had sexually abused a former step-daughter in a similar manner. That witness, R.G., who was eighteen years old at the time of this trial, testified that in 1992, when she was approximately three years old, Appellant placed his penis in her mouth and ejaculated on two occasions. R.G.'s mother, Appellant's ex-wife, testified to the circumstances surrounding R.G.'s disclosure of the abuse.
T3 R.G.'s testimony about other acts of sexual abuse committed by Appellant had also been presented in Appellant's first trial. Appellant was convicted; on direct appeal, we held that this evidence was improperly admitted, and remanded for a new trial. We reasoned that because the jury was not properly instructed on the limited use of other-crimes evidence, it may have used that testimony as substantive evidence that Appellant sexually abused B.M. James v. State,
1 4 A few months after James was handed down, the Oklahoma Legislature enacted 12 O.S. §§ 2413 and 2414, which specifically addressed the type of other-crimes evidence challenged in that appeal. Laws 2007, S.B. 917, Ch. 76, §§ 1-2 (eff, April 30, 2007). Section 2418 applies to cases where the defendant is charged with enumerated offenses involving "sexual assault"; § 2414 applies to
T5 Appellant raises two propositions of error. In Proposition 1, he claims that the admission of evidence concerning R.G.'s claim of sexual abuse, pursuant to 12 ©.S.8upp.2007, § 2414, violated his constitutional protection from ex post facto laws, because that statute was enacted after the alleged commission of the offenses against BM
16 The mere fact that a retroactively-applied change in evidentiary rules works to a defendant's disadvantage does not mean the law is ex post facto. The issue is whether the change affected the quantum of evidence necessary to support a conviction. Carmell,
T7 In Proposition 2, Appellant argues that even if R.G.'s testimony was admissible under § 2414, it nevertheless should have been excluded for credibility reasons. Again, we disagree. Sections 2418 and 2414 were taken, almost verbatim, from Federal Rules of Evidence 413 and 414, which were promulgated over a decade ago. While these provisions are perhaps not models of legislative clarity, we construe the language found in both as still requiring the trial court to balance the probative value of the proffered evidence against any unfairly prejudicial effect, pursuant to 12 O.S.2001, § 2403.
1 8 Although both statutes provide that the evidence at issue "is admissible," they go on to declare that the evidence "may be considered for its bearing on any matter to which it is relevant." 12 O.S.Supp.2007, §§ 2418(A), 2414(A) (emphasis added). Both statutes include the proviso: "This rule shall not be construed to limit the admission or consideration of evidence under any other rule." 12 O.S.Supp.2007, §§ 2413(C), 2414(C). This proviso is a two-edged sword. Sections 2413 and 2414 should obviously not be read to bar other types of bad-acts evidence that might be proffered in a sexual-abuse case, simply because they do not specifically mention them.
T9 As noted, these rules were copied from existing federal legislation, and we find the legislative history of those rules, and federal judicial interpretation of the rules, helpful to our own analysis. Both sources of guidance, and the plain language of the rules themselves, convince us that when evidence is proffered under 12 O.S. §§ 2413 or 2414, the trial court retains the authority-and responsibility-to consider, on a case-by-case basis, whether the probative value of the proffered evidence is substantially outweighed by an unfairly prejudicial effect.
" 10 Evidence that the defendant has committed sex offenses similar to those for which he is on trial will undoubtedly be prejudicial to him. The real question, however, is whether it is unfairly so. 12 O.S.2001, § 2408. When evidence meeting the criteria of §§ 2413 or 2414 is offered, the Evidence Code's examples of how «other-crimes evidence may properly be used (e.g. to show motive, opportunity, or common scheme or plan), found in § 2404(B), are still helpful to
11 The trial court did not abuse its discretion in permitting testimony about R.G.'s claim of sexual abuse at the hands of Appellant. Under 12 0.8, §§ 2418 and 2414, the evidence was admissible for any relevant purpose. The particulars of the prior crime showed a visible connection with the instant charges, and demonstrated a common scheme to take sexual advantage of very young girls that were placed in his trust and care.
DECISION
112 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal. Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Notes
. In James, we observed that our holding in Myers v. State,
. Appellant refers to 12 O.S. § 2413 as the applicable provision. Because both the instant charge and the other-crimes evidence involved sexual abuse of a child, § 2414 was the more applicable provision. In either event, Appellant's complaint does not depend on any differences between the two provisions, which were promulgated in the same bill and operate in essentially the same manner. Our discussion applies with equal force to both statutes.
. - For example, the state evidentiary rule at issue in Carmell allowed conviction for certain sex offenses on the uncorroborated testimony of the complainant-whereas, under the rules in effect at the time of the alleged offense, such uncorroborated testimony was insufficient, as a matter of law, to support a conviction. A majority of the Supreme Court found that situation to be just as unfair as reducing the number of elements the state had to prove in order to obtain a conviction. Carmell,
. - The situation in Thompson is strikingly similar to the one presented here. Thompson was tried for fatally poisoning a church sexton. In evidence were a handwritten prescription for strychnine, and a handwritten letter to the church organist, which contained threatening language about the sexton. The state introduced letters that Thompson had written to his wife, so that the jury could compare his known handwriting with that of the prescription and threatening letter. Thompson was convicted. On appeal, however, the Missouri Supreme Court held that Thompson's letters to his wife were not admissible under state law, and reversed for a new trial. Before the second trial was held, the Missouri legislature passed a law permitting the evidence that the appellate court had found inadmissible. At the second trial, the evidence was again ad
[Whe cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offense.... The statute did not require 'less proof, in amount or degree," than was required at the time of the commission of the crime charged upon him. It left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state, as a condition of its right to take the life of an accused, must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt. Whether he wrote the prescription for strychnine, or the threatening letter to the church organist, was left for the jury, and the duty of the jury, in that particular, was the same after as before the passage of the statute. The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused.... [TJhe object of the legislature, as we may assume, was to give the jury all the light that could be thrown upon an issue of that character ....
Thompson,
It will be observed that no particular weight is attached to the evidence of these writings when admitted. They are simply permitted as evidence before the jury. The jury are left to determine their similarity to the disputed writing, and the right to attack these writings themselves is open to the prisoner and his counsel. They are offered solely as a means of arriving at an ultimate fact. The law raises no presumption about them, nor ascribes any special probative force to them.
State v. Thompson,
. For example, § 2414 declares that evidence of specified past acts of child sexual abuse committed by the defendant may be admitted in his prosecution for child sexual abuse. The statute says nothing about the admissibility of other past sex offenses, e.g. those involving an adult victim, in a prosecution for child sexual abuse. In such a case, the trial court would balance the probative value and unfairly prejudicial effect of the evidence under 12 O.S. §§ 2403 and 2404(B).
. Thus, for example, evidence proffered under § 2413 or § 2414 might ultimately be excluded on the grounds that it is hearsay, which is governed by other provisions of the Evidence Code and by the constitutional right to confront one's accusers.
. The same conclusion has been reached by a number of federal appellate courts, construing FRE. 413 and 414 in light of the extant legislative history behind them. See United States v. Enjady,
. Both the instant offense and the past offense involved girls about the same age. Both girls gave contemporaneous. descriptions of Appellant's conduct that were eerily similar to each other. Although the incidents were separated by several years, remoteness in time is only one of many factors for the trial court to balance under 12 O.S. § 2403. Certainly, if a witness fails to report a claim of abuse for several years, that fact might bear on the credibility of the witness's claim. But such a delay might also be reasonably explained, such as by the witness's age, and whether the defendant threatened the witness with harm if she disclosed. In this case, R.G. reported the claim of sexual abuse when she was four years old, about a year after it allegedly occurred. Her mother promptly reported the allegation to police. Ultimately, for reasons not apparent from the record, the district attorney declined to. file charges. R.G.'s testimony was brief, positive, and corroborated by that of her mother, to whom R.G. spontaneously reported the abuse. Although R.G. was eighteen at the time of this trial, she still claimed a vivid recollection of important details about the incidents.
. See OUJI-CR (2nd) No.'9-9. The trial court gave this instruction immediately after R.G.'s direct examination: "[Elvidence has now been received that the defendant has allegedly committed offenses other than that charged in the information. You may not consider this evidence as proof of innocence or guilt of the defendant of the specific charge-of the specific offense charged in the information. This evidence has been received solely on the issue of the defendant's alleged motive, common scheme or plan. This evidence is to be considered by you only for the limited purpose for which it was received." This caution was repeated in the final instructions given after the close of the evidence.
. Appellant also makes a cursory complaint of prosecutor misconduct in Proposition 2. Because he fails to explain the legal basis for this complaint, we will not consider it. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, 22 0.S., Ch. 18, App. (2009).
Dissenting Opinion
Dissenting:
T1 James claims that evidence of other crimes should not have been admitted to prove the charges against him. I agree. I believe that 22 O.S.Supp.2007, §§ 2418(C) and 2414(C), the statutes allowing admission of other crimes evidence in sexual abuse cases, are unconstitutional. The statutes violate both the due process and equal protection clauses of the United States Constitution as well as the Oklahoma constitution.
. I discussed my view thoroughly in Horr v. State,