Coates v. State, F-86-68

• Decision Date: 10 May 1989
• Docket Number: No. F-86-68,F-86-68
• Citation: 1989 OK CR 16,773 P.2d 1281
• Parties: Patsy Faye COATES, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1281

773 P.2d 1281

Patsy Faye COATES, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-86-68.

Court of Criminal Appeals of Oklahoma.

May 10, 1989.

An appeal from the District Court of Wagoner County; William Bliss, District Judge.

Patsy Faye Coates, appellant, was tried and convicted of two counts of Willful Failure or Refusal of County Treasurer to Perform Duties of Her Office (Counts I and II), two counts of Making False Entries in a Book of Account (Counts III and IV) and three counts of Embezzlement by County Treasurer (Counts V, VI, and VII), in Wagoner County District Court, Case No. CRF-84-201. The Honorable William Bliss, modifying the sentence set by the jury, sentenced appellant to twenty-one (21) years imprisonment, with ten (10) years suspended, set up a restitution plan and ordered that appellant undergo counseling. REVERSED AND REMANDED for a new trial.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., Randy Malone, Legal Intern, Oklahoma City, for appellee.

OPINION

PARKS, Vice Presiding Judge:

Appellant, Patsy Faye Coates, was tried and convicted of two counts of Willful Failure or Refusal of County Treasurer to Perform Duties of Her Office (19 O.S.1981, § 121 and 21 O.S.1981, § 345) (Counts I and II), two counts of Making False Entries in a Book of Account (21 O.S.1981, § 1586) (Counts III and IV), and three counts of Embezzlement By County Treasurer (19 O.S.Supp.1982, § 641) (Counts V, VI, and VII), in Wagoner County District Court, Case No. CRF-84-201, before the Honorable William Bliss, District Judge. The jury set punishment at one (1) year imprisonment and a fine of five hundred ($500.00) dollars for both Counts I and II, three (3) years imprisonment for Count III, seven (7) years imprisonment for Count IV, ten (10) years imprisonment for Count V, twenty-one (21) years imprisonment for Count VI, and fifteen (15) years imprisonment for Count VII. The Department of Corrections developed a Specialized Offender Accountability Plan and recommended that appellant's sentence be modified to twenty-one (21) years imprisonment with ten (10) years suspended, that a restitution plan be implemented and that appellant undergo psychiatric evaluation. Judgment and sentence was entered according to the recommendation of the Department of Corrections. We reverse and remand for a new trial.

A statement of the facts is unnecessary as we find appellant's second and third assignments of error dispositive. We first address appellant's assertion that reversible error occurred when the trial court allowed the introduction of "other crimes or acts" evidence in violation of Burks v. State, 594 P.2d 771 (Okla.Crim.App.1979) and Freeman v. State, 767 P.2d 1354 (Okla.Crim.App.1988).

Initially, we note the State gave notice of intent to introduce evidence of appellant's use of the telephones in the county treasurer's office for personal business. Accordingly, the notice requirement of Burks was met on this one occasion. Appellant objected to the introduction of such evidence on the basis that it was not relevant to any of the exceptions listed in 12 O.S.1981, § 2404(B). The State asserts that such evidence was admissible either to show motive, intent, absence of mistake or accident, and identity or that it was admissible as part of the "res gestae" of the crime. After review, we fail to see how such evidence was probative of motive, intent, absence of mistake, or identity. Instead, the evidence clearly falls within the general rule of 12 O.S.1981, § 2404(B), which states "[e]vidence of other crimes or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."

As to the claim of "res gestae," the use of the telephone for personal business was not so connected with the charged offenses as to form a part of the entire transaction. Bruner v. State, 612 P.2d 1375, 1377 (Okla.Crim.App.1980). Specifically, there was no evidence presented as to the dates of these phone calls or their relationship to the crimes charged. Absent a showing of close connection in time and space, this evidence is not admissible as "res gestae." Wahid v. State, 716 P.2d 678, 680 (Okla.Crim.App.1986), cert. denied, 476 U.S. 1173, 106 S.Ct. 2899, 90 L.Ed.2d 985 (1986).

The State also introduced evidence of appellant's failure to deposit state warrants within ninety (90) days. Originally, this incident was charged as a separate count in the information; however, at the conclusion of the preliminary hearing, the magistrate refused to bind appellant over on this charge. At trial, the prosecutor elicited detailed testimony from five different witnesses regarding the state warrants. Defense counsel's objections were overruled.

The State argues that this evidence was admissible as part of the incidents charged in the second count of the Information, or alternatively, under the "res gestae" exception. We must disagree. After review of the second count of the Information, we find nothing to support the State's assertion that these incidents fell within the crime charged in the second count. The Information specifically refers to the failure to make deposits which are listed in an attachment titled Exhibit # 1. Although Exhibit # 1 contains the dates and dollar amounts of deposits which were allegedly never made, none of the dates or amounts correspond to the dates or amounts of the state warrants. Thus, we can only conclude that the failure to deposit state warrants was not charged in the Information.

Neither do we agree that the evidence of the failure to deposit these state warrants falls within the "res gestae" exception. Obviously, these transactions were separate and distinct from the crimes charged insofar as they were originally charged as a separate count. These incidents are not explanatory of the main fact and were not required to give the jury a "full picture" of events. See Williams v. State, 634 P.2d 1311, 1313 n. 1 (Okla.Crim.App.1981). Thus, they are not admissible under the "res gestae" exception. Assuming arguendo these incidents fell within one of the "other crimes or acts" exceptions, this evidence was inadmissible under 12 O.S.1981, § 2403 because the slight probative value of the evidence was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, [and] misleading the jury...." See Littlejohn v. State, 713 P.2d 22, 24 (Okla.Crim.App.1986).

On one occasion, the State initiated inquiry into certain statements allegedly made by appellant regarding her feelings for Harry Tracy, a political opponent. A witness was allowed to testify that appellant said "she would like to invite him over for supper and blow his brains out, and say he broke into her house." (Tr. 517) Defense counsel objected to this statement, and the objection was sustained. However, later, the prosecutor reiterated this inadmissible testimony by referring to appellant's dislike for Tracy in the presence of the jury, and questioning a second witness as to appellant's feelings for Tracy. Such evidence was irrelevant, as it did not tend to "make the existence of any fact ... of consequence to the determination of the action more probable or less probable...." See 12 O.S.1981, § 2401; Henderson v. State, 695 P.2d 879, 882 (Okla.Crim.App.1985). Even if the testimony were relevant, it should have been excluded because "its probative value [was] substantially outweighed by the danger of unfair prejudice" and it was hearsay. See 12 O.S.1981, § 2403, 2801; Littlejohn, 713 P.2d at 24.

During the cross-examination of appellant, the prosecutor asked if appellant had reported money given to her by her cousin on her previous income tax return. Defense counsel promptly objected, but the objection was overruled. Appellant replied that she had not. She was then asked if she had made any estimated tax payments on income received during the current year, to which she replied in the negative. On appeal, the State argues "[f]ailure to claim income on income tax returns is probative of knowledge, intent and absence of mistake regarding wilful failure of a county treasurer to perform duties of her office, making false entries in a book of accounts, and embezzlement." Brief of Appellee, at 16.

Again, we disagree. Appellant's failure to report money received from her cousin is totally unrelated to her activities as county treasurer as is her failure to make estimated tax payments. This evidence did not tend to make the existence of any consequential fact more or less probable, especially in light of the fact it occurred after her resignation from office. See 12 O.S.1981, § 2401. Further, the State failed to comply with the Burks notice requirement. Hence, the admission of this evidence was error.

The State also introduced evidence of other "bad" acts regarding threats made by appellant. Pat Gifford testified that appellant threatened to fire her if she put a political sign in her yard in support of a candidate which appellant opposed. While this act may not have constituted a crime, "there is a certain stigma attached" to the squelching of an individual's right to freedom of political expression. See Freeman, 767 P.2d at 1356. Thus, the State was required to comply with Burks, and wholly failed to do so. No notice was given of the intent to introduce such evidence. Furthermore, such evidence does not fall within any exception listed in Section 2404(B). Instead, such evidence was "a subterfuge for showing to the jury that the defendant is a person who deserves to be punished." Turner v. State, 629 P.2d 1263, 1265 (Okla.Crim.App.1981) (quoting Burks, 594 P.2d at 775).

The prosecutor also introduced testimony that appellant spent "at least an hour or two" each day watching television at the office during working hours. Again, no notice was given of the State's intent to use such evidence. We fail to...