LEWALLEN v. STATE
Case Number: F-2014-1063
In the Court of Criminal Appeals of the State of Oklahoma
Decided: 03/11/2016
2016 OK CR 4
HUDSON, JUDGE
SUMMARY OPINION
HUDSON, JUDGE:
¶1 Appellant William Todd Lewallen was tried by jury and convicted of Child Neglect, After Former Conviction of Two or More Felonies, in violation of
(1) whether the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies;
(2) whether the evidence was sufficient to support his conviction for child neglect;
(3) whether improper expert opinion invaded the province of the jury and denied him a fair trial;
(4) whether the district court erred in refusing defense counsel‘s request for an instruction on the offense of child endangerment; and
(5) whether he received the effective assistance of counsel.
¶2 After thorough consideration of these propositions, and the entire record before us on appeal, including the original record, transcripts, exhibits and briefs of the parties, we AFFIRM Lewallen‘s conviction. However, finding merit with Lewallen‘s first proposition of error, we VACATE the sentence and REMAND this matter for RESENTENCING.
1.
¶3 Lewallen contends the trial court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies. For the reasons set forth below, we agree. The jury was incorrectly instructed pursuant to
¶4 When a defendant with two or more felony convictions is convicted of an offense enumerated in
¶5 At the time of Lewallen‘s offense, the definition of “child abuse” as provided within
¶6 “[T]o ascertain the intention[s] of the Legislature . . . , we may look to each part of the statute, to other statutes upon the same or relative subjects, to the evils and
¶7 The relevant statutes which must be evaluated and balanced in this matter are
¶8 Had the Legislature intended for both offenses to be designated as a “violent crime” pursuant to § 571, it would have specifically designated both offenses as such in § 571. To find otherwise fails to give “intelligent effect” to each part of the relevant statutes. See Stice, 2012 OK CR 14, ¶ 11, 288 P.3d at 250. Thus, finding the jury was incorrectly instructed pursuant to
2.
¶9 After reviewing the evidence in the light most favorable to the State, we find that any rational trier of fact could find beyond a reasonable doubt that Lewallen was guilty of child neglect based on the evidence presented at trial. See Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204. The evidence was sufficient to sustain Lewallen‘s conviction.
3.
¶10 We reject Lewallen‘s claim that he was denied a fair trial by admission of improper expert opinion from a pediatrician who examined the victims for abuse and neglect. The medical expert was qualified based on her training and experience to testify on the subject of child neglect.
4.
¶11 We find that the trial court did not abuse its discretion in denying Lewallen‘s requested jury instruction on the offense of child endangerment because the evidence did not support this instruction. Jones v. State, 2006 OK CR 17, ¶ 6, 134 P.3d 150, 154; Shrum v. State, 1999 OK CR 41, ¶ 9, 991 P.2d 1032, 1036 (a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense).
5.
¶12 Lewallen‘s final claim of ineffective assistance of counsel has been rendered moot by this Court‘s finding of error in proposition one, which dictates Lewallen‘s sentence be vacated and the case remanded for resentencing.
DECISION
¶13 The Judgment is AFFIRMED, but the Sentence is VACATED and the cause REMANDED to the District Court for RESENTENCING consistent with this Opinion. Lewallen‘s request for oral argument is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE MARK BARCUS, DISTRICT JUDGE
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APPEARANCES AT TRIAL CHARLES SULLIVAN SARA GARRETT ASSISTANT PUBLIC DEFENDERS 423 S. BOULDER, SUITE 300 TULSA, OK 74103 ATTORNEYS FOR DEFENDANT |
APPEARANCES ON APPEAL STUART W. SOUTHERLAND ASSISTANT PUBLIC DEFENDER 423 S. BOULDER, SUITE 300 TULSA, OK 74103 ATTORNEY FOR APPELLANT |
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KEVIN GRAY ASSISTANT DISTRICT ATTORNEY 500 S. DENVER TULSA, OK 74103 ATTORNEY FOR STATE |
E. SCOTT PRUITT OKLAHOMA ATTORNEY GENERAL MATTHEW L. WARREN ASSISTANT ATTORNEY GENERAL 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE |
OPINION BY: HUDSON, J.
SMITH, P.J.: CONCURS IN PART/DISSENTS IN PART
LUMPKIN, V.P.J.: CONCURS
JOHNSON, J.: CONCURS IN PART/DISSENTS IN PART
LEWIS, J.: CONCURS
JOHNSON, J., CONCURRING IN PART AND DISSENTING IN PART:
¶1 The majority concludes, and I agree, that Lewallen‘s Judgment should be affirmed. I cannot agree, however, with the majority‘s conclusion that error raised in Proposition 1 requires the case be remanded for resentencing. I would reject Lewallen‘s claim that the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies. When a defendant with two or more felony convictions is convicted of an offense enumerated in
¶2 I am authorized to state that Judge Smith joins this opinion.