Buck v. State

• Citation: 525 P.3d 39
• Docket Number: Case No. F-2021-453
• Decision Date: 19 January 2023
• Parties: Aaron Charles BUCK, Appellant v. The STATE of Oklahoma, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

525 P.3d 39

Aaron Charles BUCK, Appellant

v.The STATE of Oklahoma, Appellee

Case No. F-2021-453

Court of Criminal Appeals of Oklahoma.

Filed January 19, 2023

APPEARANCES AT TRIAL

MICHAEL AMEND, ATTORNEY AT LAW, 2845 BROCE DRIVE, BLDG. A, NORMAN, OK 73072, COUNSEL FOR DEFENDANT

JEFF MIXON, ASSISTANT DISTRICT ATTORNEY, POTTAWATOMIE COUNTY, DISTRICT ATTORNEY'S OFFICE, 331 N. BROADWAY AVE., SHAWNEE, OK 74801, COUNSEL FOR STATE

APPEARANCES ON APPEAL

CHAD JOHNSON, OKLAHOMA INDIGENT, DEFENSE SYSTEM, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

JOHN M. O'CONNOR, ATTORNEY GENERAL OF OKLAHOMA, RANDALL YOUNG, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

SUMMARY OPINION

ROWLAND, PRESIDING JUDGE:

¶1 Appellant Aaron Charles Buck was charged in the District Court of Pottawatomie County, Case No. CF-2019-299, with four counts of Lewd or Indecent Acts to a Child Under 16, in violation of 21 O.S.Supp.2010, § 1123(A)(2). The jury found Buck guilty on counts 1, 2, and 4, and assessed punishment at forty years imprisonment on Counts 1 and 2, and fifty years imprisonment on Count 4. The Honorable Tracy McDaniel, Associate District Judge, who presided over Buck's jury trial, sentenced him accordingly, ordering Counts 2 and 4 to be served concurrently with each other and consecutive to Count 1.¹ Buck appeals his Judgment and Sentence raising the following issues:

(1) whether he was denied the presumption of innocence;

(2) whether he was denied effective assistance of counsel;

(3) whether he was denied his constitutional right to have all elements of the crimes charged submitted to and decided by the jury;

(4) whether his sentence is excessive; and

(5) whether the district court lacked jurisdiction to try his case.

¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

1.

¶3 Three times during voir dire the trial court referred to the complaining witnesses as "the victims." Buck complains on appeal that these references undermined his presumption of innocence and invaded the province of the jury, shifting the burden of proof. Because Buck did not object below, our review on appeal is for plain error only. See Postelle v. State , 2011 OK CR 30, ¶ 54, 267 P.3d 114, 137 (where defendant did not object to the trial court's remarks made during voir dire, review on appeal was for plain error).

¶4 It is true, as Buck asserts, that the trial court "must not influence jurors in their decision-making process." Postelle , 2011 OK CR 30, ¶ 55, 267 P.3d at 137 (citing Johnson v. State, 2009 OK CR 26, ¶ 4, 218 P.3d 520, 522 ). This Court has held, however, that "correct statements of law given by the court during voir dire regarding the presumption of innocence combined with the written instructions clearly setting forth the correct statements of the law" may serve to ameliorate the effect of earlier misstatements. Sanders v. State , 2015 OK CR 11, ¶ 25, 358 P.3d 280, 287.

¶5 In the present case, although the trial court referred to the complaining witnesses as "the victims," in voir dire, the trial court also instructed the jury both orally during voir dire and later in written instructions about the presumption of innocence and the State's burden of proof. The trial court also referred to the complaining witnesses as "alleged victims" in its examination by the court. Given the entirety of the record, we find that the trial court's initial misstatements did not rise to the level of plain error. We also find that Buck's claim that the trial court's misstatements were structural error is baseless. Relief is not required.

2.

¶6 Buck contends that he was denied constitutionally effective assistance of counsel. This Court reviews claims of ineffective assistance of counsel de novo, to determine whether counsel's constitutionally deficient performance, if any, prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Under this test, Buck must affirmatively prove prejudice resulting from his attorney's actions. Strickland , 466 U.S. at 693, 104 S.Ct. 2052 ; Head v. State , 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148. "To accomplish this, it is not enough to show the failure had some conceivable effect on the outcome of the proceeding." Id . Rather, Buck must show that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. This Court need not determine whether counsel's performance was deficient if the claim can be disposed of on the ground of lack of prejudice. See Malone , 2013 OK CR 1, ¶ 16, 293 P.3d at 207.

¶7 Buck complains that trial counsel was ineffective for failing to object when the trial court referred to the complaining witnesses as "the victims." The trial court's misstatements were addressed above in Proposition 1. As noted in discussion above, Buck cannot show on this record that, but for counsel's actions, the result of his trial would have been different.

¶8 Buck also argues that trial counsel was ineffective for failing to cross examine the complaining witnesses about their possible motives for accusing him as was done by prior defense counsel at preliminary hearing. Instead, defense counsel at trial opted to challenge the complaining witnesses on why they waited so long to disclose the incidents of abuse. This decision was clearly strategic in nature. "This Court will not second-guess matters concerning trial strategy if there is a reasonable basis for counsel's actions." Lee v. State , 2018 OK CR 14, ¶ 14, 422 P.3d 782, 786 (citing Turrentine v. State , 1998 OK CR 33, ¶ 41, 965 P.2d 955, 971 ("This Court has declined to second guess trial strategy on appeal.")). "That the strategy proved unsuccessful is not grounds for branding counsel ineffective." Turrentine , 1998 OK CR 33, ¶ 41, 965 P.2d at 971.

¶9 Because he has failed to establish either deficient performance or prejudice from his attorney's actions, Buck's ineffective assistance of counsel claim is denied. This proposition does not require relief.

3.

¶10 Buck was charged with lewd acts with a child under 16, in violation of 21 O.S.Supp.2010, § 1123. This section provides for enhanced punishment options when the child victim is under the age of twelve at the time the crime is committed. Buck complains on appeal that his jury should have been instructed that in order to assess punishment at not less than twenty-five years imprisonment they had to find that the victims were under twelve years of age at the time that the crimes were committed.

¶11 Because the record does not show that trial counsel objected to the instructions at issue review on appeal is for plain error. See Newman v. State , 2020 OK CR 14, ¶ 13, 466 P.3d 574, 581. To be entitled to relief for plain error, an appellant must show: "(1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. "This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice." Stewart v. State , 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514.

¶12 Buck acknowledges that this Court addressed this very issue holding that, "the age of the victims at the time of the crimes is an element of the crime of lewd acts with a child under 16 for purposes of sentencing and a criminal defendant has a constitutional right to have the jury instructed on this element and the charged offense proved beyond a reasonable doubt." Chadwell v. State , 2019 OK CR 14, ¶ 6, 446 P.3d 1244, 1246-47. See also Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ("any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury"); Williams v. State , 2021 OK CR 19, ¶ 5, 496 P.3d 621, 624 (following Chadwell holding that "the jury should have been instructed that in order to assess punishment starting at not less than twenty-five years imprisonment, they had to find beyond a reasonable doubt that the victim was under twelve years of age when the crimes were committed").

¶13 Failure to properly instruct in the present case was error which is subject to harmless error analysis. Chadwell , 2019 OK CR 14, ¶ 7, 446 P.3d at 1247 (citing Neder v. United States , 527 U.S. 1, 4, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (the error which occurs when an element of the crime charged is omitted from the jury instructions is subject to harmless error analysis)). See also Williams , 2021 OK CR 19, ¶ 5, 496 P.3d at 624 (following Chadwell and applying harmless error analysis). Accordingly, we apply the harmless error test set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) to determine whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict.

¶14 In light of this authority contrary to his position, Buck asks this Court to reconsider our prior rulings and find, under the Oklahoma Constitution, that this error is structural error which can never be harmless. Buck's argument is not persuasive, and we decline to reconsider our prior rulings.

¶15 The uncontested evidence presented at trial was that the child victims were under the age of twelve at the time Buck committed the crimes charged. Accordingly, we find that the instructional error was harmless beyond a reasonable doubt. See Neder , 527 U.S. at 17, 119 S.Ct. 1827 ("where a reviewing court...