Morrison v. State

nеces- rounding it. Proof fraud MORRISON, Floyd Appellant, trust.8 resulting Lee

sary establish v. writ ambiguity is no There Oklahoma, Appellee. The STATE Phillips of J. R. ten documents. will Cacy and Gladys Clara denominated No. F-77-399. disposition of the Phillips as devisees. Appeals Court of Criminal Oklahoma. hint no or infer property question raises real, were the in appellants ence Seрt. 1980. assumption No can tended owners. Denied Rehearing Nov. peti appellants’ from the amended drawn Phillips that was the of J. tion it intent R. prop

not to devise beneficial interest legal petition with interest. The

erty Phillips and were the

states J. R. Ola joint tenancy property

owners died, right survivorship. When ‍‌‌​​​​​‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​‌‌​​‌​​‌​​‌‌‌‌‍Ola owner, R. the sole he was

J. became

completely property free to devise the Cacy. allega Phillips Gladys

Clara petition support

tions in the do not Appeals

finding the Court of

resulting property trust in this exists

favor of appellants. GRANTED;

CERTIORARI DECISION VACATED;

OF COURT OF APPEALS

TRIAL COURT AFFIRMED.

LAVENDER, J., IRWIN, J., V. C. C.

BARNES, OPALA, JJ., HARGRAVE and

concur.

SIMMS, J., concurs in result. DOOLIN, JJ., dissent.

WILLIAMS Jones, Hartman, 1965). 1969); (Okl. v. (Okl. 8. Jones v. Perdue P.2d 293 Wilkerson, (Okl.1967); Kunze

206

Don Gasaway, Finlayson, E. and Mac D. Tulsa, for Gasaway, appellant. Woodson & Gen., Larry Derryberry, Duane N. Atty. Rasmussen, Gen., Atty. appellee. Asst. for OPINION BUSSEY, Judge: Floyd Lee appeals Morrison his conviction following jury charge a trial on a of Unlaw- ful Showing Sale of Movies Acts of Sexual Intercourse or Copulation, Unnatural in vio- O.S.1971, 1040.51, lation of 21 in the Tulsa § Court, County District Case No. CRF-76- ‍‌‌​​​​​‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​‌‌​​‌​​‌​​‌‌‌‌‍(10) was set at ten years Punishment imprisonment and a fine of Twenty-Five ($25,000.00), Thousand Dollars with the last (7) seven years Twenty-Two Thousand ($22,000.00)suspended. Dollars I appeal, On asserts thirteen error, assignments of several of which are premised rejected propositions by on State, Court in the recent case of Hunt v. Okl.Cr., (1979). 601 P.2d 464 These include following: 207 community standards was not Assignment of error No. 1: that satisfied However, 1040.51, O.S.1971, unconstitutionally by prosecution. by is introduc- § However, a provi ing depicted film which sexual inter- vague and overbroad. course, fellatio, cunnilingus of the stan the State incorporates each implicitly sion case, special Supreme prima a facie set out the United established dards States California, unnecessary. 93 expert testimony 413 U.S. was Court in Miller v. (1973); and as so P.2d at 467. also Hildahl v. 37 L.Ed.2d S.Ct. Okl.Cr., (1975). constitutionally applied. construed at 466.1 error No. 7: that the Assignment of of error No. 2: that the Assignment O.S.1971, authorized punishment charged 1040.51, the of amended information amounts to is excessive and un § statute, language fense in the punish and unusual constitutionally cruel allegation that the film was ment, against an additional punish especially viewed obscene, to state cause action failed prescribed by ments law certain other allege the Miller juris since it did further or crimes for the same crime in other However, standards. the term “obscene” punishment prе dictions. conveying art sufficiently word of scribed 1040.51-a maximum of Section charge allega gravamen of and further (15) years' imprisonment fifteen and/or a are tions under the Miller standards unnec Twenty-Five fine of Thousand Dollars essary. 601 P.2d at 466. ($25,000.00)-expresses the Legis Oklahoma great obscenity lature’s concern with the Assignment of No. 3: a error that legislative pur traffic serves a vаlid and magazine at the the purchased same time as on pose. Arguments based the relative sev provide appel film not a basis for the may range punishment provided of erity the of arrest, subsequent lant’s and the film Legislature, best to the not are addressed Even suppressed. though should have been the 601 P.2d at 467. courts. not by the film was viewed the authorities prior appellant to the arrest of and his II employee, purchased other material simul appellant contends under his taneously and viewed the officers assignment sixth of error that the verdict is provide subsequent basis warrantless a for contrary the law and the evidence that to 466,467. Moreover, arrest. 601 P.2d the 172, O.S.1971, 21 should not be extended § аppellant’s pursuant arrest was arrest an for unlawful sale made employer to an an warrant, challenged which warrant is not an employee. appeal, magazine on and the and film were not acquired by purchase, search and sei 172, O.S.1971, provides as fol- Title 21 § zure. lows: persons “Principals defined. —All con- Assignments of 4 5: error Nos. and сrime, of the commission cerned in the evidence was insufficient in that misdemeanor, and felony whether it be or the testimony the State offered no act directly commit the con- they whether obscene, ap film and the court’s was trial offense, or aid and abet stituting the impermissibly proval procedure commission, though present, are its proof appel shifted the to the burden principals.” lant; and, that the burden shifted back to State, Scroggs upon v. 65 production the State the of defense This Court stated 293, (1938), in the testimony contemporary the level of Okl.Cr. 2290, Florida, 282, Appellant’s 97 S.Ct. Dobbert v. 432 U.S. § further contention that 1040.51 882, post (1977), U.S. reh. den. 434 violates the ex facto clauses of state 53 L.Ed.2d 344 246, 166 16A is No S.Ct. 54 L.Ed.2d C.J.S. federal constitutions without merit. 98 argument ap- application subsequently retrospective Law 435. This of a en- Constitutional § notice, shown, vagueness, ‍‌‌​​​​​‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​‌‌​​‌​​‌​​‌‌‌‌‍pears go or lack of acted a law since this section was objection has above. been addressed force and effect at the time the crime. See 208 types he the fol- continued to sell these paragraph Syllabus,

second of the lowing: film at issue was one of dozen films-the Septem- in the inventory or so such films on to convict a attempt “Where an is made 13, 30, patrons January ber 1976-to until criminally re- defendant and to hold him 1976, underlying the instant employee, it when events sponsible for the acts of his occurred, believing all such act wаs prosecution must shown that agent’s of the reasonably scope legal. within the the films These while that were employment, or was an act done within relatively expensive other items films and principal’s the course of the business.” and in display in the counter kept were storage room. After Wood small Carla 484, Simpson also v. 14 Okl.Cr. See him, teleрhoned pur- he approval called (1918), Hall, 173 P. 529 v. United States duty, Wood to his clerk on James chases affirmed, F.Supp. (W.D.Okl.1975), 424 508 Shirley. denied, (10th 313 cert. 1976), 536 F.2d Cir. 919, 313,

429 U.S. 97 50 L.Ed.2d 285 S.Ct. serves requirement of scienter (1976). imposing strict or liabil prevent absolute liability The appellant’s under this distributors, irrespec ity on book and film clear. assign test is As noted in the next knowledge of the contents of tive of their error, appellant ment was owner slightest if they the book and even lack the establishment, of the carefully selected the the character of sold. notice of the items viewing at issue film and others for California, v. Smith U.S. store, sale in the was aware these films (1959). 4 L.Ed.2d 205 S.Ct. being sold in toup very were the store requirement implic A of scienter is clerk, of the day arrest of his and was O.S.1971, 1040.51, appro it in 21 and an § personally possible involved in making priate instruction ‍‌‌​​​​​‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​‌‌​​‌​​‌​​‌‌‌‌‍has been mandated assignment sale involved here. This of er State, Okl.Cr., by this Hanf Court. See ror is without merit. (1977). However, prosecu P.2d contends in his only tion show that need accused knew eighth assignment of error that the trial selling. character of nature аnd what he is refusing give jury court erred in a in to State, Okl.Cr., Hunt supra. on struction the scienter element of the Here, Hunt, Appel- in it is as clear that O.S.1971, charged offense under 1040.- § the of lant knew character and nature the erred, agree We that 51. the trial court but film that sold Carla Wood. We believe persuaded we are that the error was harm scienter is established the where less, given overwhelming the evidence of carefully of an selects owner establishment in this scienter record. fully the films in the con- inventory, store Prosecution witness Carla Wood testified items templating intending that the she appellant that told the over the tele- in the of an may sold course business that she phone proрosed purchase “hard per- employee, special communicates appellant core” materials. The denied this his employee particular mission to for the the ap- from witness stand. the sale of films at issue. gave pellant following testimony: the from appellant ninth The contends in his 1976, July, appel- until the September, of еrror court assignment that the trial lant displayed underlying the film the in- refusing give an erred instruction charge coin-oper- stant and similar on films outlining theory of jury appellant’s the the business; place ated machines at his the of consent, appellant estoppel. waiver of The appellant had carefully selected these films allege enforce appeal does not on selective by visiting other stores in the adult book ment the authorities. consulting proprietors. Tulsa area and the September 30, 1976, only requested On The defense instruction police raided his establishment, whereupon appearing he show- to cover stopped theory is instruction ing viewing those films in the machines. number recites follows: part as agree “We do defendant’s that the De- requires here “That Statute a waive knowingly. This means contention that defendant acted fendants jury punish- assess prove, beyond right rea- his to have the that must State doubt, reasoning fallaciously had is the Defendants sonable that ment. Such words, the knowledge. In other оn that the defendant guilty premised the view show, a reasonable beyond must trial court assess proof right has a to have the doubt, knew the con- that the Defendants do not feel that the punishment. We specifi- right of the were obscene is corollary statutory tents films of a necessari- ” omitted) prohibited. (Citation cally ly valid.... words, that the you In if find “... other аbove, expressed views We reaffirm the implied consent relied on the Defendant is assignment of error without officers law enforcement of commissioned merit. of and State of Oklaho- City Tulsa complains as elev appellant his ma, the Defendant had you then find that improper of error assignment enth knowledge and must therefore guilty no аrgument by closing cross-examination acquit.” prosecutor denied him fair trial. It clear that the instruction is based on complains following first premise: an the State need not erroneous on of de questions posed cross-examination the accused is aware of the only show witness Patrick Richardson: fense the film. actual character and nature of “Q. Have children? [you] any Hunt v. supra, Yes, “A. sir. visiting Therefore statements individual “Q. your see these?” you Do let children policemen prosecution or the absence of un- the witness’ questioning This followed period of time der the statute for some purchased he statement had never accused, subjec- an since his cannot excusе films, sexually did a collection of but have lawfulness of the mate- tive belief as explicit magazines. books and assignment This rials is not determinative. by: was then followed passage This merit. of error is without Musseman) you “Q. (BY Do allow Mr. assign appellant’s tenth of material? your to see this kind children asserts that the trial court ment error them, Well, custody “A. has my-wife refusing judgе that the request erred his but- punishment should a verdict determine the Yes, “Q. no? or returned, jury. rather guilt be than I allow it? “A. Would O.S.1971, 926, urges support that 22 He § assessing “Q. you it? pun Do allow makes involvement upon request by the dependent ishment proxy, yes, sir.” guess by “A. I accused. agree the witness’ testimo- We cannot that the film was provides ny as follows: on direct examination that

Sеction opened to him the personally not offensive “Punishment, assess, when —In jury may previ- We have questioning. to this door any for all cases of a verdict conviction dur- type of comment ously this condemned the the against any of laws of offense Hunt obscenity charges. ing trial Oklahoma, may, and jury the State of State, Oki.Cr., State, v. v. Stockton supra; request the of the defendant upon shall State, Hildahl v. (1975); supra. P.2d 982 punishment in assess and declare the in this assignment of error appellant’s The the fixed their verdict within limitations regard is well taken. law, a judg- court shall render by and the verdict, except to such according ment points prosecu- next to the appellant The provided.” hereinafter closing argument that statement in tor’s all of contained by the amended information was addressed precise This issue allegations Okl.Cr., material facts and in Reddell v. the State’s Court con- appellant against The (1975), appellant. wherein it was stated: the incorrect, tends that this was since but does the that mean that’s the standard of amended informatiоn did not set out the the community?” Miller standards. This is without merit for The in response closing remark was previously reasons stated under the second argument defense large counsel assignment of error. money spent sums of were in the communi- ty genre. for material of this we The appellant further contends are of opinion the the remark was prosеcutor the misstated the law to the improper. unwarranted The crime jury closing argument. complained The charged part by community is defined in of remark appears as follows: crimes, acceptability; standards of other in- you, instruction number four tells “[A]s cluding burglary, are not so defined. To you ingredients are to four apply or con- misleading. extent the remark was your ditions to determine in mind wheth- Moreover, prosecutor could have made er or not it is obscene. point his injecting prejudi- without such a one, “Number it depict must in a patently analogy. cial offensive way an act or acts of sexual appellant The contends in his twelfth as- copulation. intercourse or unnatural An- signment of error that the trial court erred your swer it in mind: Did that do so? failing separate to conduct a private voir prospective juror. dire of each He contends However, it is prosecutor obvious that clearly that such was warranted: least was reading from instruction No. 4 and one of the veniremen was unable answer discussing in turn eаch part of the defini- court, honestly open approached and he tion of obscenity contained therein. The judge privately during express recess to objected not, statement to is clearly as one prejudice his against appellant and his part of the definition of obscenity, an incor- Moreover, desire to be excused. such would rect statement of law. See Miller v. Cali- have avoided exposing the whole jury panel fornia, supra. to the juror remark of one on voir dire that assigns further as er depicting a film activity sexual described ror prosecutor’s closing statement defense counsel would be obscene. argument, “Don’t hold me to beyond a rea private Whether a individual sonable doubt. Hold me beyond any voir dire should be conducted is a matter mind, doubt in your because that’s what for the discretion of the trial court. Vavra evidence; I’ve shown you by State, Okl.Cr., (1973). reasonable, beyond but any.” The state transcript of voir dire reveals that counsel ment was convey intended to very exрlicit was probing possible prosecutor’s strength belief in the of his juror prejudice, jurors and the were overall case, and no significant possibility that the responses. candid in their juror who jury was misled applicable as to the law approached judge had not been reluc appears. The statement is within the liber speak tant presence because of the al speech freedom of accorded counsel in jurors, other but because of his desire to closing argument. lengthy interrogation, avoid a such as expe The appellant finally contends un juror rienced another expressed who der this assignment of error prose that the misgivings over the film. The remark not closing argument cutor erred in making in presence ed in the jurors of the other was in the following statement: response to defense inquiry counsel’s “Well, it, if somebody pay will juror then precon whether would have a let’s make it legal segment because a opinion ‍‌‌​​​​​‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​‌‌​​‌​​‌​​‌‌‌‌‍of ceived as to whether the film was the community likes it. That’s not require what оbscene. To separate individual say. They say instructions the com- voir dire to prejudicial avoid responses to munity standard. There is segment questions of such would be require to such in this community burglaries, virtually commits all cases. requirement Such a

211 years’ imprisonment, from of 10 a sentence and would unduly be burdensome would $25,- 7 a fine years suspended, for an with grеater protection afford no likely States, 000.00, $22,000.00 suspended, Margoles v. United three with accused. See addition, 1979). years In two (7th years F.2d 727 Cir. to serve an additional from the remark prejudice of Three Thousand presence suspended fine MODIFIED, doubtful; object to the counsel did not ($3,000.00). As so Dollars request he judgment and sentence is AFFIRMED. response, nor did admоnished, question did he the re nor be jurors of the re

maining the effect J., CORNISH, P. concurs. mark. BRETT, J., part in dissents concurs may individual voir dire private While part. g., possi- very useful in certain contexts-e. prejudicial publicity, juror exposure ble BRETT, Judge, concurring in part States, v. United F.2d see Silverthorne dissenting part. 1968)-no of discretion (9th abuse Cir. in this convic- I concur that sentеnce trial court’s denial of from the appears However, I dis- be modified. tion should case. request this conviction as a sent the treatment of expressed er I assignment felony same reasons As his thirteenth for the State, Okl.Cr., in Hunt ror, that an accumu contends my statement p. (1979) this record which appears lation of error P.2d 464 trial. We him of a fair deprive acted errors, although

have noted certain the verdict to have influenced sufficient the assess guilt have influenced therefore, it is the punishment;

ment of that, in the interests of this Court

opinion be modified justice, the sentence should

Case Details

Case Name: Morrison v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Sep 3, 1980

Citation: 619 P.2d 203

Docket Number: F-77-399

Court Abbreviation: Okla. Crim. App.