Detar v. State, Case Number: F-2019-351

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Writing for the CourtKUEHN
Citation2021 OK CR 9
PartiesJUSTIN CECIL DETAR, Appellant v. STATE OF OKLAHOMA, Appellee.
Decision Date22 April 2021
Docket NumberCase Number: F-2019-351

2021 OK CR 9


Case Number: F-2019-351

Criminal Court of Appeals of Oklahoma

Decided: April 22, 2021



¶1 Appellant, Justin Cecil Detar, was convicted by a jury of lewd or indecent proposals to a child under sixteen, after conviction of two or more felonies, in Tulsa County District Court Case No. CF-2015-4675. The Honorable Dawn Moody, District Judge, sentenced him to twenty-five years imprisonment in accordance with the jury's recommendation.1 This appeal followed.


¶2 Appellant was convicted of sending text messages to an eleven-year-old girl proposing that they meet and have sexual intercourse. Two of the victim's relatives saw suspicious communications from Appellant on the victim's smartphone. They responded to these messages pretending to be the intended victim. During the exchange, Appellant proposed to meet the victim, whom he believed to be underage, and have sexual intercourse. When Appellant showed up for the liaison, he was met by police. Appellant subsequently admitted sending messages to the victim's phone. Appellant did not testify at trial, and does not dispute the sufficiency of the evidence to convict him on appeal.


¶3 In Proposition 1, Appellant claims the trial court erred by instructing the jury that he must serve at least 85% of a sentence for lewd or indecent proposals to a child under sixteen before he could be considered for parole. Trial counsel objected to this instruction, preserving the question for appellate review. While jury instructions are generally within the broad discretion of the trial court, Tucker v. State, 2016 OK CR 29, ¶ 25, 395 P.3d 1, 8, we review questions of statutory interpretation de novo. Smith v. State, 2007 OK CR 16, ¶ 40, 157 P.3d 1155, 1169.

¶4 The basic purpose of statutory interpretation is to find and give effect to the intention of the Legislature. Gerhart v. State, 2015 OK CR 12, ¶ 14, 360 P.3d 1194, 1198. Legislative intent is primarily determined from the plain and ordinary language of the statute. Newlun v. State, 2015 OK CR 7, ¶ 8, 348 P.3d 209, 211. Statutes should be construed according to the fair import of their words, taken in their usual sense within the particular context, and with reference to the purpose of the law. Jordan v. State, 1988 OK CR 227, ¶ 4, 763 P.2d 130, 131.

¶5 The precise issue here is whether a lewd or indecent proposal, in violation of 21 O.S.Supp.2013, § 1123(A)(1), is a crime of "[l]ewd molestation of a child as defined in Section 1123" and thus subject to the 85% Rule, as the trial court instructed the jury. Section 1123(A)(1) makes it a felony for any person

to knowingly and intentionally . . . [m]ake 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 unlawful sexual relations or sexual intercourse with any person ...

The relevant version of the "85% Rule," codified at 21 O.S.Supp.2014, § 13.1(18),2 provided (with emphasis added):

Persons convicted of . . . Lewd molestation of a child as defined in Section 1123 of this title . . . shall be required to serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole.

The State argues that a lewd or indecent proposal is an 85% crime, citing a cursory footnote reference in Barnard v. State, 2012 OK CR 15, ¶ 1 n.1, 290 P.3d 759, 761, n.1.3 Appellant argues that criminal statutes must be strictly construed against the State, and takes the position that a proposal to commit lewd acts with a minor is not -- absent express legislative text to the contrary -- the same as "lewd molestation."

¶6 The crux of the problem here is that, despite what 21 O.S. § 13.1 says, the term "lewd molestation" is not defined in Section 1123, or anywhere else in the Oklahoma Statutes for that matter. Since it was enacted in 1945, Section 1123 has proscribed a broad range of conduct -- including not just the physical touching of a minor, but also proposals to a minor for such purposes, and even "look[ing] upon" a minor in a lewd or lascivious manner. This Court's use of the term "lewd molestation" in published opinions can be traced back as early as 1955. Lowrey v. State, 1955 OK CR 131, ¶¶ 1, 5, 290 P.2d 785 (describing a defendant's crime as lewd molestation, but providing no details as to exactly what the conduct was). Since then, the term continues to be used to refer generically to crimes against children listed in Section 1123. See e.g. Munn v. State, 1969 OK CR 245, ¶¶ 10-13, 459 P.2d 628, 631-32, where this Court rejected a defendant's claim that driving a child to a secluded place and asking her to disrobe, at which point she fled, was insufficient to constitute "lewd molestation."4

¶7 Over the years, the list of crimes against children covered by Section 1123 has been expanded somewhat. (The statute now also covers other conduct, such as sexual battery against victims who are at least sixteen years of age, and various acts with human corpses.) But the fact remains that all proscribed conduct involving children appears in a single section of law (see now, Paragraph A of Section 1123), without any clear attempt to differentiate in terms of severity of punishment between, say, actions and words. The crime of lewdly looking upon a minor is, and always has been, found in the very same clause or subsection that proscribes lewdly touching one. Compare 21 O.S.Supp.1945, § 1123 with 21 O.S.Supp.2013, § 1123(A)(2).5 While it might make sense to distinguish, for punishment purposes, between (1) lewdly touching a minor, (2) proposing lewd acts to a minor, and (3) merely looking at a minor in a lewd fashion, the Legislature has not clearly done so.6

¶8 Section 1123 has always considered a perpetrator equally culpable, whether the conduct involved actual sex acts with a child, or merely proposing same to the child. Attempts to distinguish, for punishment purposes, between mere proposals and consummated acts are not supported by the statutory text. Returning to the language of the 85% Rule, we believe that when the Legislature applied the Rule to those convicted of "[l]ewd molestation of a child as defined in Section 1123 of this title," it intended to include all sex crimes against children that are mentioned therein. The trial court's instruction was not error. Proposition 1 is therefore denied.

¶9 In Proposition 2, Appellant challenges the admission of an exhibit containing his text messages with a person he believed to be the underage victim, as well as other messages. Since he timely objected to this evidence, we review the trial court's ruling for an abuse of discretion. Marshall v. State, 2010 OK CR 8, ¶ 24, 232 P.3d 467, 474. An abuse of discretion is a clearly erroneous conclusion or judgment, one that is contrary to the logic and effect of the facts presented. Pullen v. State, 2016 OK CR 18, ¶ 4, 387 P.3d 922, 925.

¶10 Appellant argues that the exhibit in question was not properly authenticated. See 12 O.S.2011, § 2602 (requiring personal knowledge of a matter by a witness) and § 2901 (requiring authentication of evidence by testimony that the exhibit is what the proponent claims it to be). We disagree. The exhibit was authenticated by two different witnesses. A relative of the victim authenticated the messages she saw and sent while pretending to be the victim, and a detective identified other information as what he found on the victim's Facebook page. Moreover, Appellant does not deny authorship of the messages attributed to him. The trial court's ruling was not an abuse of discretion. Proposition 2 is denied.

¶11 Appellant argues in Proposition 3 that the trial court erred in omitting to instruct the jury on mandatory sex-offender registration requirements. Because Appellant withdrew his request for such an instruction in the face of the State's objection, our review is limited to plain error. Newman v. State, 2020 OK CR 14, ¶ 13, 466 P.3d 574, 581. Appellant must show that a plain or obvious error affected the outcome of the trial. This Court will remedy plain error only when it seriously affects the fairness, integrity or public reputation of the proceedings or otherwise results in a miscarriage of justice. Duclos v. State, 2017 OK CR 8, ¶ 5, 400 P.3d 781, 783. In Reed v. State, 2016 OK CR 10, ¶ 19, 373 P.3d 118, 123, we held that trial courts have no duty to instruct juries on the registration requirements for those convicted of certain sex crimes. The trial court's ruling was consistent with Reed. There was no plain error here. Proposition 3 is denied.

¶12 In Proposition 4, Appellant claims the trial court improperly admitted evidence of his prior conviction for accessory to murder during the punishment stage of the trial. Because he timely objected below, we review the trial court's ruling for an abuse of discretion. Appellant claims this third felony conviction was unnecessary for the State to reach the "20 to life" punishment range. We have held that the State is entitled to introduce more prior convictions than are strictly necessary for sentence enhancement. Cooper v. State, 1977 OK CR 67, ¶ 7, 560 P.2d 1018, 1019. Appellant claims the nature of this particular...

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