Barnard v. State

• Decision Date: 30 October 2012
• Docket Number: No. F–2010–744.,F–2010–744.
• Parties: Kevin Duane BARNARD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

290 P.3d 759

Kevin Duane BARNARD, Appellant,

v.The STATE of Oklahoma, Appellee.

No. F–2010–744.

Court of Criminal Appeals of Oklahoma.

Oct. 30, 2012.

An Appeal from the District Court of Tulsa County; The Honorable Dana L. Kuehn, District Judge.

Brian Martin, Tulsa, OK, attorney for defendant at trial.

Christina Wolfram, Assistant District Attorney, Tulsa, OK, attorney for state at trial.

Terry J. Hull, Norman, OK, attorney for appellant on appeal.

E. Scott Pruitt, Oklahoma Attorney General, Sandra D. Rinehart, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

A. JOHNSON, Presiding Judge.

¶ 1 Appellant Kevin Duane Barnard was tried by jury and convicted in the District Court of Tulsa County, Case No. CF–2007–2419, of Making Lewd or Indecent Proposals to a Child in violation of 21 O.S.Supp.2006, § 1123(A)(1) after one former conviction (Count 1).¹ and Using a Computer System or Network for the Purpose of Committing a Felony in violation of 21 O.S.2001. § 1958 (Count 2). The jury set punishment as life imprisonment on Count 1 and ten years imprisonment on Count 2. District Judge Dana L. Kuehn, who presided at trial, sentenced Barnard accordingly. From this Judgment and Sentence Barnard appeals, raising the following issues:

(1) whether the evidence was sufficient to support the jury's verdicts under its instructions;

(2) whether his convictions and sentences for both using a computer to make a lewd or indecent proposal to a child (Count 1) and using a computer to commit the crime of making a lewd or indecent proposal to a child (Count 2), violated his constitutional and statutory rights to be free from double jeopardy and multiple punishment;

(3) whether the trial court's issuance of a non-uniform jury instruction constitutedplain error violating his rights to a fair sentencing trial on Count 1;

(4) whether the judgment and sentence on Count 2 is inaccurate and should be corrected by entry of a nunc pro tunc judgment and sentence; and

(5) whether consecutive service of his sentences is excessive under the facts and circumstances of his case.

¶ 2 For the reasons set out below, we affirm the Judgment and Sentence for Count 1, but reverse and remand with instruction to dismiss Count 2.

FACTUAL BACKGROUND

¶ 3 On April 11, 2007, two girls brought a note someone had given them to the children's librarian at the Brookside Library in Tulsa, Oklahoma. The note said “You've got a friend—if you'd want one. K?” (Tr. Vol. 1 223; State's Exhibit 8). The note also included the following handwritten information:

Kevin Barnard

im 1 friend@ yahoo. com

(918) 855–9748

(Tr. Vol. 1 246; State's Exhibit 8) The librarian gave the note to the library manager who contacted the Tulsa police on April 12, 2007.

¶ 4 After receiving the note, Tulsa police detective Scott Gibson set up an e-mail account posing as a twelve-year-old girl named “Angela.” He exchanged numerous e-mails with the person using the e-mail address listed on the note between April 23, 2007 through May 2, 2007. Gibson determined that the e-mail correspondent was Barnard. Detective Gibson made clear in his e-mails that Angela was twelve years old, and in one e-mail response, Barnard said “you DO know that I'm 30, right?” (Tr. Vol. 1 259; State's Exhibit 3 at 4).

¶ 5 The content of the e-mails quickly progressed to a discussion of subjects of a sexual nature. Barnard suggested that he and Angela get together and that Angela “wear something like a nice blouse, medium length skirt, and maybe nothing underneath” (Tr. Vol. 1 266; State's Exhibit 3 at 8). He also asked her not to wear a bra and asked “[i]s there anything else that you'd like to do with me? Anything at all, no matter what it may be? Be honest—please” (Tr. Vol. 1 267; State's Exhibit 3 at 10). Angela reminded him she was twelve and a virgin and he said “I might like to be more than friends. But that's up to you. Urn, can I ask if you might not want to be a virgin much longer? Maybe we could try having a little bit of fun but if you'd tell me to stop, I would stop right then and there. Okay” (Tr. Vol. 1 268; State's Exhibit 3 at 11). Barnard then began discussing sex and told Angela he “would be really gentle, and if you don't like it, I'll stop” (Tr. Vol. 1 268; State's Exhibit 3 at 10–13). He assured her he did not have any diseases and that he was sterile. They discussed specific details of sexual intercourse and Barnard told her that he loved her.

¶ 6 Barnard set up a meeting with Angela in Tulsa, but did not show up. He continued to communicate with her, however, and made further comments about sexual relations, including a very graphic, detailed explanation about oral sex acts that he would like her to perform on him. Detective Gibson, acting as Angela, attempted to set up another meeting in Tulsa, but Barnard responded that he could not be there because he was not in Tulsa any more.

¶ 7 On May 2, 2007, Detective Gibson determined that Barnard was sending e-mails from a public library in Bristow, Oklahoma. He then set up a plan to arrest Barnard there. Before the plan was executed, however, Barnard changed his location and sent e-mails from a public library in Bartlesville, Oklahoma.

¶ 8 The Bartlesville Police Department assisted in the investigation by sending officers to the Bartlesville Library. Shortly after his arrival at the library, Detective Adam Duncan of the Bartlesville Police Department saw Barnard vacate a computer workstation. After Barnard left, Duncan posted an out-of-order sign on the computer and secured it. The computer was later taken to the Bartlesville Police Department property room. The computer was eventually transferred to the Tulsa Police Department for forensic analysis. E-mails retrieved from the computer matched the e-mails sent and received by Detective Gibson.

¶ 9 Barnard was arrested while leaving the library. A 3 x 5 card found in his wallet had the name “Angela” on it and made reference to meeting Angela on a specific date and time at a Tulsa park. In a recorded statement made to a Tulsa Police Department detective Barnard did not deny sending the e-mails, but stated that it was his intent to wait until Angela was at least eighteen years old to have sex with her. He said this was why he did not show up at the arranged meeting.

DISCUSSION

1.Sufficiency of the Evidence and Jury Instructions

¶ 10 Barnard claims that the evidence was insufficient to support the jury's guilty verdict on either Count 1 or 2 for the crimes of making a lewd or indecent proposal to a child under sixteen years of age based on the elements of the offense that were included in the instruction given to the jury. Barnard's jury was instructed as follows:

INSTRUCTION NO. 19

No person may be convicted of LEWD OR INDECENT PROPOSALS to a child under sixteen unless the State has proved beyond a reasonable doubt each element of the crime: These elements are:

First, the defendant was at least three years older than the victim;

Second, who knowingly and intentionally;

Third, made any electronically/computer generated lewd or indecent proposal

Fourth, to any child under sixteen years of age;

Fifth, for the child to have unlawful sexual relations/intercourse with any person.

(O.R. 213). This instruction was taken verbatim from Instruction No. 4–129, OUJI–CR(2d)(Supp. 2000).

¶ 11 Barnard contends that the evidence was insufficient to support a conviction under this instruction because: (1) no evidence was presented that he was at least three years older than Detective Scott Gibson, the actual person with whom he was communicating; and (2) there was no evidence that a proposal was made to any person under the age of sixteen, because the alleged proposal was made to Detective Gibson, not an actual child. Both of these contentions are correct to the extent the evidence is simply matched against the elements listed in the instruction. But, noting that the statute defining the crime of making a lewd or indecent proposal to a child includes an alternative element, Barnard also complains that the jury was not instructed on the law applicable to the offense because the jury was not instructed on this alternate element.

¶ 12 The relevant portions of the statute under which Barnard was charged in Count 1 provide as follows:

A. It is a felony for any person to knowingly and intentionally:

1. Make any oral, written, or electronically or computer-generated lewd or indecent proposal to any child under sixteen (16) years of age, or other individual the person believes to be a child under sixteen (16) years of age, for the child to have sexual relations or sexual intercourse with any person [.]

....

5. ... The provisions of this section shall not apply unless the accused is at least three (3) years older than the victim.

21 O.S.Supp.2006, § 1123(A)(1).² Under the plain language of this statute, it was not necessary for the State to prove that Barnard was at least three years older than some actual child, or that the proposal was made to an actual child who was younger than the age of sixteen; the State need prove only that the indecent proposal was made to any individual Barnard believed to be under sixteen years of age and that he (Barnard) was at least three years older than that pretextual child. As can be seen from the text of the jury instruction above, however, this language was not included as an element in the instruction given to the jury. Because the jury instruction omitted the element of mere belief that the proposal was made to a child under sixteen years of age as an alternative to a proposal having been made to an actual child, the real question presented in this claim is whether the omitted element rendered the instruction fatally defective. And, this is the crux of Barnard's claim.

¶ 13 Barnard did not object to the instruction.³ The claim is therefore waived and reviewed only for plain error. See Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923 (“Hogan...