Gordon v. State

• Decision Date: 03 October 2019
• Docket Number: Case No. F-2018-624
• Citation: Gordon v. State, 451 P.3d 573 (Okla. Crim. App. 2019)
• Parties: Bryon Lynd GORDON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

451 P.3d 573

Bryon Lynd GORDON, Appellant,

v.The STATE of Oklahoma, Appellee.

Case No. F-2018-624

Court of Criminal Appeals of Oklahoma.

FILED OCTOBER 3, 2019

SUMMARY OPINION

LUMPKIN, JUDGE:

¶1Appellant, Bryon Lynd Gordon, was tried by jury and convicted of Count 1, Forcible Oral Sodomy, in violation of 21 O.S.Supp.2016, § 888,¹ in the District Court of Bryan County Case Number CF-2017-64.The jury recommended as punishment ten years imprisonment.The trial court sentenced Appellant accordingly.It is from this judgment and sentence that Appellant appeals.

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

I.The trial court abused its discretion by ruling, without inquiry, that the alleged victim was competent to testify at jury trial violating the Sixth Amendment of the United States Constitution,Article 2, § 20 of the Oklahoma Constitution, and 12 O.S.2011, §§ 2601 - 2603.

II.The Magistrate abused its [sic] discretion by considering testimony from an alleged victim who was incompetent during preliminary hearing, in violation of the Sixth Amendment of the United States Constitution,Article 2, § 20 of the Oklahoma Constitution, and 12 O.S.2011, §§ 2601 - 2603.

III.The trial court abused its discretion when it allowed the admission of unreliable hearsay without exception and introduced without inquiring into the reliability of the hearsay statements, in violation of 21 O.S.Supp. 2013, § 2803.1.

IV.Because the testimony and statements of the alleged victim were inconsistent, incredible, and unbelievable, corroboration was required.The testimony was not adequately corroborated and therefor [sic] the evidence was insufficient to support the conviction.

V.Error occurred when the trial court failed to properly instruct the jury, in violation of Mr. Gordon's due process rights under the 14th Amendment to the United States ConstitutionandArt. II, § 7, of the Oklahoma Constitution.

VI.Mr. Gordon was prejudiced by Vicki Palmore's testimony vouching for the credibility of R.S.

VII.Mr. Gordon was denied his right to the effective assistance of counsel, in violation of the 6th and 14th Amendments to the United States ConstitutionandArt. II, §§ 7,9, and20, of the Oklahoma Constitution.

VIII.Cumulative errors deprived Mr. Gordon of a fair proceeding and a reliable outcome.

¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

¶4 In Proposition One, Appellant contends the trial court committed an abuse of discretion by not making an inquiry regarding the victim's, R.S.'s, competency to testify.²Prior to trial, Appellant requested the trial court to hold an in camera hearing to determine if R.S. was able to differentiate between truth and fiction.The trial court denied the motion, finding the preliminary hearing court determined that R.S. was a competent witness, either expressly or by virtue of the fact that the magistrate allowed R.S. to testify.

¶5"Determination of a witness' competency to testify is a matter of discretion for the trial judge and that determination will not be disturbed unless the party asserting error shows a clear abuse of discretion."Gilson v. State , 2000 OK CR 14, ¶ 59, 8 P.3d 883, 906.An abuse of discretion has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented or, stated otherwise, any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue.Neloms v. State , 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170(internal citation and quotation marks omitted).

¶6 Reviewing the record, we find the trial court did not abuse its discretion in finding R.S. to be a competent witness.The Oklahoma Statutes provide, "[e]very person is competent to be a witness except as otherwise provided in this Code."12 O.S.2011, § 2601.A witness must have "personal knowledge of the matter" about which he is testifying.12 O.S.2011, § 2602."Every witness shall be required to declare before testifying that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so."12 O.S.2011, § 2603.

¶7 Although our cases have not addressed the competency of a witness with Down Syndrome, we have many that address the competency of child witnesses.³"A child is a competent witness under 12 O.S.1991, § 2603, if he or she can distinguish truth from fiction, has taken an oath, and demonstrated that he or she has personal knowledge of the crime."Gilson , 2000 OK CR 14, ¶ 59, 8 P.3d at 906.See alsoHawkins v. State , 1994 OK CR 83, ¶ 27, 891 P.2d 586, 594-95(where five year old child indicated she knew right from wrong and promised she would only tell what was right and her personal knowledge of the crime was shown, trial court properly found her to be a competent witness);Dunham v. State , 1988 OK CR 211, ¶ 8, 762 P.2d 969, 972(where four year old child acknowledged he would be punished for making up stories and his personal knowledge of the crime was shown, trial court properly found him competent as a witness despite some confusion on his part during trial).

¶8 The record shows that R.S. was competent to testify.The preliminary hearing magistrate administered the oath to R.S. and he swore to tell nothing but the truth.R.S. told the prosecutorhe did not lie but only told the truth.He further told the prosecutor that when people tell lies, they go to Hell.R.S. demonstrated his personal knowledge of the crime when he testified how Appellant put his penis into R.S.'s mouth.

¶9 That R.S.'s testimony may have been inconsistent in some respects does not affect his competency as a witness but only goes to the weight and credibility of his testimony, which may properly be addressed on cross-examination.Gilson , 2000 OK CR 14, ¶ 60, 8 P.3d at 907.Defense counsel thoroughly cross-examined R.S.

¶10 R.S. similarly demonstrated his competence as a witness at trial.R.S. received the oath and swore to tell the truth.He demonstrated that he knew the difference between the truth and a lie.When asked by the prosecutor whether it would be okay if she told a lie that R.S. did something wrong, R.S. answered in the negative.R.S. established his personal knowledge of the crime when he testified that Appellant touched R.S.'s mouth with his penis and had his penis in R.S.'s mouth.

¶11 While there may have been inconsistencies in R.S.'s trial testimony, they were squarely before the jury and it was for the jury to decide R.S.'s credibility and the weight to give his testimony.Cf.Gray v. State , 1982 OK CR 137, ¶ 23, 650 P.2d 880, 885(once a child has taken an oath and has personal knowledge of the matters at issue, "[i]t is then for the jury to decide the amount of credence to be afforded such testimony").

¶12 Although it was error for the trial court to deny the defense motion for a hearing on R.S.'s competence as a witness, we find the error was harmless.The above record demonstrates R.S. was a competent witness and further discussion in Proposition Three also supports our finding of harmlessness due to the trial court's failure to hold a hearing as requested by the defense.Proposition One is denied.

¶13 In Proposition Two, Appellant claims the preliminary hearing magistrate abused his discretion by considering testimony from an incompetent witness in making his bind over decision.Appellant did not file a motion to quash challenging the sufficiency of the evidence at preliminary hearing prior to entering his plea at formal arraignment.This Court has previously reviewed claims concerning irregularities at preliminary hearing where there was no motion to quash and a plea entered at formal arraignment for plain error, i.e. , Burgess v. State , 2010 OK CR 25, ¶ 16, 243 P.3d 461, 464andPrimeaux v. State , 2004 OK CR 16, ¶ 18, 88 P.3d 893, 900.However, our jurisprudence on this matter leads us to conclude that these claims are waived and not subject to plain error review.SeeBerry v. State , 1992 OK CR 41, ¶ 9, 834 P.2d 1002, 1005(where the appellant entered a plea at formal arraignment, he waived any irregularities which may have occurred at preliminary hearing);Money v. State , 1985 OK CR 46, ¶ 5, 700 P.2d 204, 206(same);Crawford v. State , 1984 OK CR 89, ¶ 14, 688 P.2d 347, 350(irregularities in bind over order waived where the appellant entered a plea at formal arraignment);andHambrick v. State , 1975 OK CR 86, ¶ 11, 535 P.2d 703, 705("When a defendant, upon arraignment, pleads to the merits and enters on trial, he waives ... any irregularities [in the preliminary examination].").Cf .Thompson v. State , 2018 OK CR 5, ¶ 4, 419 P.3d 261, 262(review of the trial court's denial of the appellant's motion to quash Supplemental Information waived where the appellant failed to timely assert that the evidence at preliminary hearing was insufficient before he entered his plea at formal arraignment);Brennan v. State , 1988 OK CR 297, ¶ 7, 766 P.2d 1385, 1387(a plea on the merits operates as a waiver of preliminary hearing).

¶14We now hold that where there is no motion to quash filed after preliminary hearing and the appellant enters a plea at formal arraignment, unless additional time in which to enter a plea or file motions is reserved by the defense or set by the magistrate to allow for the filing of additional motions, any irregularities in the preliminary hearing process are waived from appellate review.This procedure follows our historical precedent and ensures any challenges to the preliminary hearing are presented to the trial judge so the court can resolve all appropriate matters prior to trial.Therefore, Appellant's claim within this proposition is...