Daniel Cole JAMES, Appellant v. The STATE of Oklahoma, Appellee.
No. F-2005-763.
Court of Criminal Appeals of Oklahoma.
Jan. 8, 2007.
2007 OK CR 1
¶ 30 In short, at the time the district court was confronted with Cox‘s motion to withdraw his plea, the court had before it a record that: (1) lacked a factual basis for a key element of the charged offense; (2) contained a written notice by Cox that he did not understand the nature and consequences of the plea proceeding; and (3) contained statements made by Cox in open court indicating an unwillingness or inability to admit all the acts necessary to support a conviction on the charged offense. Accordingly, the record of the proceeding did not support a conclusion that Cox‘s guilty plea was knowingly entered. Under these circumstances, the trial court abused its discretion in denying Cox‘s motion to withdraw his guilty plea. Cf. Zakszewski v. State, 1987 OK CR 152, ¶ 8, 739 P.2d 544, 546 (finding abuse of discretion in denying defendant‘s motion to withdraw guilty plea by not inquiring further to ensure factual basis existed where defendant pled guilty but denied culpability).
DECISION
¶ 31 The Petition for the Writ of Certiorari is GRANTED. The Judgment and Sentence is VACATED. The case is REMANDED with directions that Cox be permitted to withdraw his guilty plea and that the district court conduct further proceedings not inconsistent with this opinion.
¶ 32 Under
CHAPEL, P.J., C. JOHNSON and LEWIS, JJ.: concur.
LUMPKIN, V.P.J. concur in results.
James M. Hawkins, Assistant District Attorney, Tulsa, OK, attorney for State at trial.
Christine D. Little, Paul Demuro, Tulsa, OK, attorneys for petitioner on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Jay Schniederjan, Assistant Attorney General, Oklahoma City, OK, attorneys for respondent on appeal.
OPINION
CHAPEL, Presiding Judge.
¶ 1 Daniel Cole James was tried by jury and convicted of Count I, Rape by Instrumentation in violation of
¶ 2 James raises eight propositions of error in support of his appeal. In Propositions I, II III, IV and V he complains of the admission and use of other crimes evidence in his case. As errors in the admission and use of this evidence require reversal, we do not consider the remaining propositions of error.
¶ 3 “defendant should be convicted, if at all, by evidence showing guilt of the offenses charged, rather than evidence indicating guilt for other crimes.”1 Other crimes evidence is not admissible to show that a person is acting in conformity with a charac
¶ 4 The other crimes evidence in this case was extensive and prejudicial. It was thirteen years old, the allegations never resulted in filed charges, and there were credibility issues. To some extent the evidence was improperly used as substantive proof of James‘s guilt of the charged crimes. The jury was not properly instructed on its limited use. In relying on its admission, the State refers this Court to Myers v. State.6 In Myers, this Court created a “greater latitude rule” in sexual assault cases, allowing otherwise inadmissible other crimes evidence to be admitted, even if it was remote in time. This Court has had the opportunity to review the effect of the Myers “greater latitude rule” in subsequent prosecutions. We conclude that this rule is unworkable, and hereby overrule Myers to the extent that it created the “greater latitude rule” for other crimes evidence in sexual assault cases. The statute on other crimes evidence,
¶ 5 James was unfairly prejudiced by other crimes evidence which should not have been admitted. The case must be reversed and remanded for a new trial.
Decision
¶ 6 The Judgments and Sentences of the District Court are REVERSED and REMANDED for a new trial. Pursuant to
C. JOHNSON, A. JOHNSON, and LEWIS, JJ., concur.
LUMPKIN, V.P.J., dissent.
LUMPKIN, Vice-Presiding Judge: dissents.
¶ 1 In Myers v. State, 2000 OK CR 25, 17 P.3d 1021, 1031, this Court stated its position regarding an area of criminal law of which we have grown all too familiar. Regardless of whether or not that familiarity comes from watching the nightly news, reading the daily newspaper, or sitting for years on an appellate court bench, most of us know that those who commit crimes of sexual assault against women and young children tend to be repeat offenders.
¶ 2 Myers thus recognized the unique nature of sex crimes. Sexual abuse or assault is unlike such crimes as, say, murder, theft, or selling drugs—crimes that generally arise out of poverty, greed, lack of a sense of right and wrong, or the need to feed one‘s chosen drug habit. As a general rule, a person commits sexual abuse, or like crimes, against an adult female out of hatred of the opposite sex, the desire to control, or because the abuser was himself or herself abused as a child. Unfortunately, sex crimes are crimes of propensity—a proclivity that rarely goes away.
¶ 3 Even worse are sex crimes committed against children. Here, the crimes are usually committed by a relative or some other person extremely close to the child, i.e., someone who exercises dominion and control over the child or who holds a position of trust. That relationship or position of trust often allows the perpetrator to commit crimes over an extended period of time without being caught, due to the use of fear and control tactics. Such heinous acts are the result of a perverse sexual attraction, and, again, the abuser may have experienced similar abuse as a child.
¶ 4 Sexual crimes committed against women and children, therefore, present special evidentiary issues when a person charged with such crimes is bound over and brought to trial. Many such crimes go unreported due to the embarrassment and humiliation involved or because the person abused is trapped. With children, the victims are often so young when the abuse began that they have trouble narrowing down the year when the abuse first occurred. Indeed, many details of the crimes committed are often lost in the interim or confused by guilt and conflicting feelings resulting from the violation of trust.
¶ 5 And so, Myers took the nature of these crimes into consideration and stated an evidentiary position about what is universally known. And in doing so, it attempted to protect both women and our most vulnerable citizens, children. Myers thus announced a “greater latitude rule,” one that simply recognized that those who commit sexual crimes are more likely to fall into one of the well-known exceptions to
¶ 6 Today‘s opinion would do away with the “greater latitude rule” on the basis that the rule is “unworkable.” Perhaps the more preferable word would be “uncomfortable,” for the opinion gives no example of how it is unworkable. I suspect it is unworkable only in the sense that some don‘t want to work with it. In fact, since Myers, members of this Court have merely refused to follow that law established in Myers. Indeed, this may be more about the author of Myers than it is about an inability to work within the confines of that holding, which garnered four concurs and only Judge Chapel‘s concurring in result vote, an indication that, while he did not ascribe to the idea of greater latitude, he found nothing reversible in the case that used it.1
¶ 7 Of course, Myers did not invent the idea of greater latitude in sexual assault cases. As the case plainly states, Wisconsin has adopted the same position, and a very detailed and expansive version of that same concept may be found in the
¶ 8 Nor has Oklahoma, because the idea of “greater latitude” existed in Oklahoma for many years prior to Myers—indeed prior to the time any of the current judges who would now do away with it were sitting on an appellate court bench.2 For example, in Rhine v. State, 1958 OK CR 110, ¶¶ 20-21, 336 P.2d 913, 921-22, the Court cited with approval two Kansas cases, two Pennsylvania cases, and a California case that adopted a greater latitude approach to other crimes
That an individual who commits or attempts to commit abnormal sex offenses is likely to have such a mental ‘plan’ finds recognition in the fact that when a defendant is charged with the commission of sexual offense the law is more liberal in admitting as proof of his guilt evidence of similar sexual offenses committed by him than it is in admitting evidence of similar offenses when a defendant is charged with the commission of non-sexual crimes.
Additionally, both of the Kansas cases cited in Rhine admitted such evidence in order to show a “lustful disposition.” Rhine‘s approach on this point was later discussed again by this Court with apparent approval in Driskell v. State, 1983 OK CR 22, ¶¶ 27-29, 659 P.2d 343, 350.4 In that case, the expert linked two crimes together due to the progressive nature of the actions and aggression of “the sex criminal of this type.” Id.
¶ 9 Also, in Hawkins v. State, 1989 OK CR 72, 782 P.2d 139, 141-42, dealing with prior uncharged acts of rape the defendant had committed against the victim, the Court cited, again with approval, this rule from Landon v. State, 77 Okl. Cr. 190, 140 P.2d 242, 244 (1943):
As an exception to the general rule, the courts have been very liberal in permitting evidence of other offenses involving carnal intercourse of the sexes where it is between the same parties, whether prior or subsequent to the offense charged in the information, for a reason peculiar to sexual crimes. This exception to the general rule is founded not so much upon the desire to show the intent with which the offense was committed, but more upon the broader ground of showing sexual inclination or lustful disposition of defendant toward the prosecuting witness and making it more probable that the offense charged was committed.
The Court thus ruled it had “long been the law of this State that evidence of either prior or subsequent sexual acts between the victim and the accused constitute evidence which falls into an exception to the general rule that evidence of ‘other crimes’ will not be admitted to prove that a defendant acted in conformity with his prior propensities.” Hawkins, at ¶ 10, 782 P.2d at 141.
¶ 10 This is by no means an exhaustive list of such cases. The Court has wrestled with this issue throughout its history, and there are certainly cases suggesting there is no room for greater latitude when talking about “other crimes” evidence, regardless of the crime charged. The point, however, is that Myers didn‘t simply make it up out of thin air, and the concept has been a matter of common law for decades.5 Regrettably, the Court‘s myopic focus on Myers prevented it from understanding the lineage of this legal concept and the extent to which it is supported in our jurisprudence, jurisprudence that remains in full force and effect.
¶ 11 Moreover, if you flip through the pages of our evidence code, you will see that sex-related crimes are treated differently and that greater latitude in this area is a common theme, one that our Legislature has repeatedly recognized. Thus, an accused is prohibited from introducing evidence concerning an alleged victim‘s sexual past or reputation, except under specific circumstances.
¶ 12 And so, I would not do away with the “greater latitude” rule in sex-related crimes, especially those involving children. I do not believe the rule swallows
¶ 13 In closing, I would also urge our Legislature to take notice of this issue, take steps to protect those most vulnerable in our society, the children, and adopt a version of