Burgess v. State

• Decision Date: 16 November 2010
• Docket Number: No. F-2009-308.,F-2009-308.
• Citation: 243 P.3d 461
• Parties: Michael G. BURGESS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

243 P.3d 461

Michael G. BURGESS, Appellant,

v.The STATE of Oklahoma, Appellee.

No. F-2009-308.

Court of Criminal Appeals of Oklahoma.

Nov. 16, 2010.

An Appeal from the District Court of Major County; The Honorable N. Vinson Barefoot, Associate District Judge.

Steven Huddleston, Timothy R. Henderson, Huddleston, Pike, Henderson & Parker, Oklahoma City, OK, counsel for appellant at trial.

James M. Boring, District Attorney, James L. Swartz, Assistant District Attorney, Guymon, OK, counsel for the State at trial.

Alecia Felton George, George Law Office, Oklahoma City, OK, counsel for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

SUMMARY OPINION

LUMPKIN, Judge.

¶ 1 Appellant, Michael G. Burgess, was tried by jury and convicted of Engaging in a Pattern of Criminal Offenses (Count 1) (21 O.S.Supp.2004, § 425); Sexual Battery (Count 2) (21 O.S.Supp.2002, § 1123); Bribery By Public Official (Counts 6, 26, and 36)(21 O.S.2001, § 382); Kidnapping (Count 7) (21 O.S.Supp.2004, § 741); Forcible Oral Sodomy (Counts 8 and 33) (21 O.S.Supp.2006, § 888(B)); and Second Degree Rape (Counts 9, 27, 29, 32 and 34) (21 O.S.Supp.2002, § 1111) in the District Court of Major County, Case Number CF-2008-60.¹ The jury recommended as punishment imprisonment for one (1) year and a fine in the amount of $10,000.00 in Count 1; a fine in the amount of $5,000.00 in Count 2; imprisonment for three (3) years in Count 6; imprisonment for five (5) years in Count 7; imprisonment for ten years in Count 8; imprisonment for five (5) years in Count 9; imprisonment for ten years in Count 26; imprisonment for ten years in Count 27; imprisonment for ten years in Count 29; imprisonment for ten years in Count 32; imprisonment for ten years in Count 33; imprisonment for ten years in Count 34; and imprisonment for ten years in Count 36. The trial court sentenced accordingly.² It is from this judgment and sentence that Appellant appeals.

¶ 2 Appellant raises the following propositions of error in this appeal:

I. The Trial Court Abused Its Discretion In Denying Mr. Burgess' Motion To Dismiss Counts 1, 26, 27, 29, 32, 33, And 34 Of The Amended Information Because The State Failed To Present Sufficient Evidence At The Preliminary Hearing To Prove That Mr. Burgess Committed The Offenses As Charged In Those Counts.

II. Insufficient Evidence Was Presented To Support Mr. Burgess' Convictions.

III. The Jury Instructions As Given Were Not Constitutional And Deprived Mr. Burgess Of His Due Process Rights Under The Fourteenth Amendment To The United States Constitution With Respect To All The Counts For Which He Was Convicted.

IV. In Light Of Unconstitutional Jury Instructions, The Deleterious Effect Of Which Pervaded And Tainted the Evidence Relating To All Of The Allegations Presented At Trial, And In Light Of Uncorroborated And Contradictory Testimony From The Alleged Victims, A Modification Of Mr. Burgess' Clearly Excessive Sentence Is Warranted.

¶ 3 After a thorough consideration of these propositions and the entire record before us on appeal including the original records, transcripts, and briefs of the parties, we have determined that neither reversal nor modification of sentence is warranted under the law and the evidence.

¶ 4 Appellant was the duly elected Sheriff of Custer County. Pursuant to his elected position, Appellant was appointed to serve on the Washita/Custer County Drug Court Team. Appellant's office conducted urinalysis testing of the drug court participants and one of his deputies was the drug court compliance officer. Appellant actively participated on the Drug Court Team.

¶ 5 Appellant befriended drug court participant, J.M. On February 7, 2006, Appellant repeatedly telephoned J.M. and requested that she travel from Custer County to his hotel room in Oklahoma City. J.M. acquiesced when Appellant demanded that she meet him or he would vote for her termination from drug court. When she arrived at the hotel, Appellant provided J.M. with alcohol, engaged in sexual intercourse with her, and performed oral sodomy on her person. Thereafter, Appellant engaged in sexual intercourse with J.M. at her home, at the home of a friend of the Appellant's, at a motel, and at Appellant's home while his wife was on vacation. At Appellant's home, Appellantgave J.M. alcohol, engaged in several instances of intercourse, and performed oral sodomy upon J.M. Appellant and J.M. travelled to Oklahoma City for Drug Court Day at the State Capitol. Appellant repeatedly demanded and engaged in instances of sexual intercourse with J.M. in his hotel room.

¶ 6 During this timeframe, Appellant intervened in J.M.'s urinalysis testing at the Custer County Jail. Appellant instructed his employees to permit J.M. to test in the courthouse bathroom which was nicer than the jail restroom. On at least two separate occasions, Appellant intervened and stopped the jail employees from reporting J.M. for a positive test, took J.M. for a mouth swab test, and had the jail employees discard the positive urinalysis test.

¶ 7 On January 3, 2007, Appellant assisted the drug court compliance officer with an investigation into drug court participant, B.B. Appellant discovered that B.B. was in violation of the Drug Court's rules. He contacted the Drug Court Judge and pursuant to her order took B.B. into custody. The compliance officer assisted and investigated other drug court participants while Appellant drove B.B. to the jail. Through repeated comments on her future, Appellant painted the grim picture of jail, termination from Drug Court, and imprisonment for B.B. Appellant told B.B. that he could save her from prison and make her stay in the jail more comfortable. He pulled off the road near two barns and told B.B. that he would help her if she would help him. Appellant directed B.B. to perform oral sodomy on his person and engaged in sexual intercourse with B.B. The records within the sheriff's department reflected that it took Appellant approximately 44 minutes to transport B.B. the 5 mile distance from her home to the jail.

¶ 8 In May, 2007, J.M. informed Appellant that she could not do it anymore. Appellant informed her: "Well, you know what that means." (Tr. V, 1210, 1453-54). Subsequently, J.M. tested positive on her urinalysis test at the Custer County Jail. She tried to get Appellant to intervene both before and after the test, however, he ignored her requests. J.M. was placed in the Custer County Jail and sanctioned to one year inpatient treatment by the Drug Court. As she left the courtroom, she screamed: "I've effed [sic] the sheriff all this time, you can't do this to me." (Tr. V, 1211, 1490-92).

¶ 9 J.M.'s cousin, C.T., contacted Appellant and informed him that J.M. had DNA evidence proving their sexual relationship. Appellant offered to help C.T.'s brother get out of prison if she would obtain the evidence from J.M. and bring it to him.

¶ 10 The investigation into the circumstances further revealed that in the fall of 2005, Appellant had groped the buttocks and chest of a female deputy against her will while she was on duty inside the county courthouse. She left her employment with the county soon thereafter.

¶ 11 Appellant testified in his own defense at trial. He denied the incidents with B.B. and the female deputy. He flatly admitted a sexual relationship with J.M. but denied that there was anything unlawful about it. Under cross examination, Appellant was forced to admit that the Drug Court had control or authority over the lives of its participants.

¶ 12 In Propositions I and II, Appellant seeks to attack the special provisions of 21 O.S.Supp.2002, §§ 1111 and 888(B)(4) that make it a crime for certain government actors to engage in sex acts with persons under their supervision. He argues that he was not an employee of a state agency, county, or political subdivision that had supervision or authority over the victim. OUJI-CR(2d) 4-124, 4-128 (Supp.2007).

¶ 13 This Court has previously recognized that "any county, precinct, district, city, town or school district" constitutes a political subdivision. Davenport v. State, 20 Okl.Cr. 253, 256, 202 P. 18, 19 (1921); Smith v. State, 1963 OK CR 48, ¶ 11, 381 P.2d 900, 903; Guy v. City of Oklahoma City, 1988 OK CR 148, ¶ 10, 760 P.2d 1312, 1314. Both the County Sheriff's office and the District Court's Drug Court Team constitute political subdivisions of the state.

¶ 14 The Drug Court programs are statutorily required to provide "vigilant supervision" of their participants. 22 O.S.2001, § 471.1(G). "Whenever possible, a DrugCourt team is to be established to oversee implementation of the Drug Court program with regard to each Drug Court participant." Alexander v. State, 2002 OK CR 23, ¶ 9, 48 P.3d 110, 113. "[T]he judge overseeing a defendant's Drug Court program is part of that Drug Court team." Id., 2002 OK CR 23, ¶ 10, 48 P.3d at 113. At a minimum the team should consist of the assigned judge, a district attorney, and a defense attorney. 22 O.S.2001, § 471.1(D). The Drug Court Team can designate other members to assist. Id. By statute, the Sheriff of the county is required to participate in the initial review of an offender to determine their eligibility for the program if they are held in the county jail. 22 O.S.2001, § 471.2(A). "The Drug Court Supervising Staff create the treatment plan for the participants and monitor their progress. 22 O.S.2001, § 471.4.

¶ 15 The Legislature has defined the term "employee" as any person who is authorized to act in behalf of a political subdivision or the state with or without being compensated. 51 O.S.Supp.2010, § 152(7). This includes all elected or appointed officers, members of governing bodies and other persons designated to act for an agency or political subdivision. Id.; Instruction No. 3-16, OUJI-CR(2d) (Supp.2009).

¶ 16 As to Proposition I, Appellant did not file a formal...