Oxley v. State
941 P.2d 520
Okla. Crim. App.
1997
Check Treatment

*1 Joyce OXLEY, Appellant, Ellen Oklahoma, Appellee.

STATE of F-95-0817. No. Appeals of Oklahoma. Court of Criminal May *2 Thomas,

Greg Muskogee, for Trial. Palmer, Pawhuska,

Patti for Appellant J. Appeal. on Kim Auftengarten, Assistant District At- torney, Muskogee County, Muskogee, for Appellee at Trial. Edmondson, General,

W.A. Drew Attorney Dills, General, Nathan Attorney L. Assistant City, Appellee Appeal. Oklahoma for on

OPINION

JOHNSON, Judge. Joyce Oxley,

Ellen hereinafter referred Appellant, by jury was tried and convicted for Endangerment the crime of Child in vio- O.S.1991, 852.1, lation of 21 in Case No. CF-94-330 the District Court of Musko- gee County Lyle before the Bur- Honorable ris, Judge. jury District returned guilty verdict of and recommended a sen- (1) imprisonment, year tence of one in custo- dy Department Corrections and $5,000.00 Ap- fine. The trial court sentenced jury’s with accordance recom- Judgment mendation. From this and Sen- tence, perfected appeal has her court. Oxley1, Terrie mother testified 24,1994, on that December offered K.H.2, keep youth and another [P.C.] over- son, event, (9) Oxley Appellant's 1. Terrie was married to At the time of the K.H. was nine (11) years step-father. Appellant Dana. Dana was K.H.’s At old. the time of trial he was eleven step-grandmother years was K.H.’s old. Parker, state we also addressed [Appellant denied at her residence.3 night, process re constitutional due federal boys spend night having the ever quirements an Information be sufficient early morning, During the Eve]. Christmas put charges of the an accused on notice husband) awoke Randy Oxley (Appellant’s alleges Information against him “[w]here *3 body “put his him all over and rubbed pleads particular facts consti an offense and During private part into butt.”4 [KH.’s] his ordinary language, in such tuting the offense Oxley sexually abusing Randy was time the understanding common can person that a of room, pro- K.H., Appellant entered the a prepare know intended and defense what is business,”5 and went is not “[t]his claimed process no violation oc charge, due Oxley Randy After prepare to breakfast. However, when an Infor curs.” Id. at 986. him, to sexually abusing K.H. went stopped sufficiently apprising of an mation falls short to asked the kitchen eat breakfast. or accused of what he she must defend Appellant re- they if could talk. Appellant trial, against process a violation will due “[n]o, plied, cooking I’m breakfast. not now. always not resulted. In order to make have However, Appellant never talk later.” We’ll appeal, this this on Court will determination incident,6 the nor concerning to K.H. talked discovery including look to the entire record Randy stop report or she take actions did transcripts preliminary hearing and to ascer of Oxley’sabuse K.H. tain the accused received satisfacto whether If, record, ry upon of it notice. a review the of propositions raises four Appellant that sufficient is determined the accused has error, Ap error. In her first of notice, process no violation will be found. due the Information failed contends that Id. jurisdiction upon the trial court to confer Ap- charged Information in this case allege the ele it failed to essential because pellant as follows: Appellant “parent, guardian, a that was ment day 1st Janu- on or between the of [T]hat a custody or of person having or control 1992, day December, ary, and the 24th of in this issue child.” This Court revisited County Muskogee in said of and (Okl. State, v. 917 P.2d 985-987 Parker one E. JOYCE State of Oklahoma OX- Cr.1996), it that trial wherein was noted “a unlawfully, LEY then and did there filing jurisdiction triggered by court’s is willfully feloniously having and wrongfully, alleging the of of an Information commission informed of the sexual abuse of her been public appropriate a with venue.” offense age of 12 step grandson, K.H. under O.S.1991, §§ Par also 22 121-136. See old, pro- years any failed to take action to law, ker, in prior this case Court overruled prevent tect the said K.H. or to further (Okl.Cr. State, cluding Miller v. 827 P.2d 875 abuse; contrary the form and sexual 1992) it by Appellant, the extent relied on provided in statute such cases made and in for held that order an Information dignity of against peace court, jurisdiction upon trial must a it confer State. every alleging state facts material element Appellant The statute under which was charged. A the crime review of the Informa is, part, charged in as follows: in it sufficient tion this case reveals that was guard- parent, in jurisdiction person A. A is the to confer trial court who custody ian, having person alleged committed or Appellant that that had or County. in Endangerment Muskogee in control over a child defined Child family Oxley’s slaying for also that 3. Terrie was with her Kenneth testified had in abuse on at walked and discovered sexual holiday and there was not suffi- the Christmas prior two least occasions. space at cient her residence. testified that she aware that Randy 4. K.H. testified that the sexual abuse from sexually improper Randy Oxley acted a man- Oxley begun had first on his fourth or fifth birth- However, daughter. did ner with her she day Oxley’s at the residence and continued while years until the fact become aware this after night question. until the daughter finally told her. when her

523 any Section of Title 10 of a except 1101 the Okla- act as waiver error Statutes, homa commits child justice endan- which results in miscarriage a germent person knowingly when is fundamental. v. McGee 815 P.2d permits physical or sexual abuse of (Okl.Cr.1991); Scott added.) (Emphasis child. Therefore, our plain is review limited to O.S.1991, § 852.1. Appellant contends that the Informa op As this Court has not had the tion does not assert whether she is “the portunity persons to address the of or terms parent, guardian, person custody or having 852.1, liable under ais case of first true, or control over” K.H. While this impression. legislative A review the histo supports finding had record O.S.1991, § ry of 21 852 is instructive. Prior *4 “person custody that having notice she was a 1990, 852, § to provide entitled “Omission to in during or control” over K.H. the time for a child—Penalties” embraced within its question. Page The Affidavit attached as scope “any parent legal or custodian of a Two the that of Information states “K.H. was child.” the statute to was amended Oxley’s in care this when occurred.” Addi present wording, “any its parent, guardian, received, tionally, during defense counsel dis person having custody or control or a over covery, the sworn from statement K.H. [as child.” See Okla. Sess. Laws c. prepared by Oxley] stating Ap Teme that § 852.1, § This wording 1. is in used which pellant offered to have “a of kids few the was at enacted the’ same time. deletion Oxley’s] over because [Terrie house was “legal” of the word Legislature indicates the Accordingly, crowded.” be can found that the apply, intended statute to from aside trial, prior put to was on notice parents guardians, persons to charged person having custody that she was a or with or custody the control of the child. Appellant’s control over K.H. Thus to right Thus, any person having custody or control process due not proposi was violated. This standing place would include one in the of tion is denied. i.e., parent the guardian, parentis or loco in Additionally, to child.

Appellant’s Legislature the the propositions next two con “guardian” person the “parent, guardian, cern the terms intended terms and “a person or control,” custody custody having they or having or control.” as are com Since we have monly in understood.7 Appellant’s determined first charged having that she was as “person a (Okl.Cr. In Williams v. 554 P.2d 842 custody or control” over we will limit 1976), held, we only. our consideration to this term In her Terms used in instructions should be de- proposition, Appellant second contends that by they fined the court where a have tech- the trial court committed fundamental error may by or meaning, misapplied nical be failing instructions, by in the “par to define jury; the but where the are in terms com- ent, guardian, person having custody or or use can mon and are such as be under- terms, Appellant argues control.” that the by person ordinary intelligence stood of “custody” legal and “control” have connota they explained need not defined or in be tions and are such not in common use that absence anything charge the of in the to they need or explained. not be defined (Cita- meaning. obscure their Id. At 846. First, it is noted that did not ob omitted). tion ject to the as instructions submitted or offer any defining Additionally, the obligated additional instructions terms this Court to says which she “employ ordinary meaning now should have been the common de Secondly, we repeatedly statutory fined. have held of term.” Glass request that the failure to an instruction will We find there authority 7. guide manage.” or to or WEBSTER’S NEW THIRD INTERNATIONAL WEBSTER’S (1986) at Unabridged 559 defines DICTIONARY THIRD NEW INTERNATIONAL DICTIONARY care, "protection, "custody” the word nance, mainte- (1986) Unabridged “power tuition." “Control” is defined as Second, Appellant that the given in contends in instruction nothing was by allowing trial court erred the State meaning the common case to obscure prior concerning sexual her terms, find no cross-examine “custody” “control.” We Randy Oxley. This evidence misconduct proposition is denied. plain This in subject Appellant’s Li- was the Motion overruled, finding which the trial court mine error, Ap proposition of In her third had that the evidence showed insufficient was evi there contends propensity knowledge of her husband’s custody or control over she had dence find commit acts of sexual misconduct. such agree. Appellant offered We do K.H. Thus, proba the evidence was relevant and mother consented. keep overnight. His Appellant’s knowledge tive of the issue Thus, responsibility Appellant assumed Therefore, her husband’s sexual misconduct. responsibil assumption of for K.H. The submitted of the we find that evidence parentis. Appellant in loco We ity placed probative unduly and not other crimes light most by viewing evidence find correctly prejudicial, and that the trial court State, any rational trier of favorable O.S.1991, evidence. allowed the See doubt, beyond a reasonable fact could find Appellant’s we fi Accordingly, find custody having or person Appellant was without merit. nal contention control, parent as it relates to place of a or *5 (Okl.Crim.App.1991), State, 555, 562 v. 816 P.2d Battenfield alleged by After a review of errors denied, U.S. t. 503 cer to conclude that Appellant, we are unable (1992); 1491, 117 L.Ed.2d 632 112 S.Ct. requires any error has occurred which either (Okl State, 709 203-204 Spuehler v. P.2d Appellant’s reversal or modification of sen- .Cr.1985). This is denied. Accordingly, Judgment and tence. Sen- tence are AFFIRMED. proposition, In her final she claims the two instances where raises CHAPEL, P.J., STRUBHAR, V.P.J., crimes evidence consti admission other LUMPKIN, J., concur. First, she claims that tutes reversible during during opening statement LANE, J., concurs in results. P.C., testimony crime evidence another notice. proper revealed without Burks8 LANE, Judge, concurs in results. complains she about the admis Specifically, sexually only P.C. was also I concur results for reason stere sion of evidence that I not think that the Information during the same time as decisis. do abused to Parker v. Appellant actually sufficient. See dissent entered the room (Okl.Cr.1996). State, 917 P.2d 980 during abuse. We note that object to the admission of evi failed held in Burks that defense attor

dence. We object neys are not relieved of the need to Id. of other crimes. inadmissible evidence object Failure to admission evidence, preserve other-crimes as well as instructions, may not requested be consid State, 719 P.2d appeal. Anderson ered Thus, (Okl.Crim.App.1986). we argument.9 will consider this (Okl.Cr.1979), impeach gy. attempted to Defense counsel P.C. 8. Burks v. 594 P.2d grounds. by pointing on other Jones v. overruled out inconsistencies between P.C.’s testimony prelim- testimony at trial his at the inary hearing. illustrating point, Further case, appears the failure of de- In this closing pointed arguments, out defense counsel object to the other crimes evi- fense counsel alleged jury. inconsistencies to part trial strate- dence was a of defense counsel’s