Horn v. State

• Decision Date: 06 March 2009
• Docket Number: No. F-2007-1240.,F-2007-1240.
• Parties: Alton A. HORN, III, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

204 P.3d 777

2009 OK CR 7

Alton A. HORN, III, Appellant v. STATE of Oklahoma, Appellee.

No. F-2007-1240.

Court of Criminal Appeals of Oklahoma.

March 6, 2009.

An Appeal from the District Court of Oklahoma County; the Honorable Patricia G. Parrish, District Judge.

Jacob Benedict, Robin McPhail, Assistant Public Defenders, Oklahoma City, OK, Counsel for Appellant at trial.

C. Wesley Lane, II, District Attorney, Suanne Carlson, Assistant District Attorney, Oklahoma City, OK, Counsel for the State at trial.

Kim Chandler Baze, Assistant Public Defender, Oklahoma City, OK, Counsel for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Keeley L. Harris, Assistant Attorney General, Oklahoma City, OK, Counsel for the State on appeal.

OPINION

LUMPKIN, Judge.

¶ 1 Appellant Alton A. Horn, III, was tried by jury for First Degree Rape (Counts 1-18) (21 O.S.1991, § 1114); and Forcible Oral Sodomy (Counts 19-30) (21 O.S.Supp.1992, § 888), Case No. CF-2005-4708, in the District Court of Oklahoma County. The trial court dismissed Counts 5, 19, and 23, after sustaining in part the defendant's demurrer to the evidence at the conclusion of the State's case. The jury acquitted the defendant on Counts 12-17. The jury found the defendant guilty on the remaining counts and recommended as punishment fifty (50) years imprisonment in each of Counts 1-4, 6-11 and 18, and ten (10) years imprisonment in each of Counts 20-22, and 24-30. The trial court sentenced accordingly, ordering the sentences to run concurrently to each other but consecutively to sentences imposed in the District Court of Beaver County, Case No. CF-2005-4. It is from this judgment and sentence that Appellant appeals.

¶ 2 At the time of trial, J.E. was 23 years old. She testified that Appellant, her stepfather, had sexually abused her from the time she was 12 years old until she was 16 years old (1996-2000). J.E. testified she did not tell anyone of the abuse because of Appellant's threats to make her "disappear" if she told. The abuse occurred in different rooms of their Midwest City home, usually when J.E.'s mother was at work or school, and often times when J.E.'s siblings were home but in other rooms of the house. J.E. said that Appellant would often restrain her by holding her shoulders with his hands, grabbing her wrists, or putting his hands on her neck to keep her from moving. Appellant often told J.E. that her vagina "was so tight that [she] made him come fast."

¶ 3 J.E. also testified to one evening in 1997 when Appellant took her with him to Oklahoma City Community College where he worked as a security guard. J.E. testified that as she waited for him on a bench outside, he approached her, pulled his pants down just far enough, took out his penis and forced it in her mouth. She said he held her head with both hands and moved it where he wanted it.

¶ 4 In 2000, the family moved from Midwest City to Beaver where Appellant was employed as a police officer. J.E. testified the abuse continued not only in their home but elsewhere. She testified that on at least one occasion, Appellant forced her to orally sodomize him while in the police car. J.E. said Appellant carried a gun as part of his job and he was on duty at the time of the crime. She also testified to an incident where Appellant forced her to have intercourse with him in an abandoned trailer, near the city airport.

¶ 5 In November 2000, J.E. moved out of her home and went to live with her biological father and stepmother. However, by 2002, she moved back in with her mother, Ada Horn. By that time, Ada Horn and Appellant had separated with their divorce to become final in 2003. J.E. did not tell anyone about the abuse until 2005, when she was 21 years old. After being confronted by her roommate Carrie Woods about rumors concerning herself and Appellant, J.E. told Woods about the abuse. About that time Appellant phoned J.E.'s mother and said, "I'm going to apologize now before everything explodes." Though he did not mention J.E. at the time, Appellant phoned Mrs. Horn again a few days later and asked why J.E. was spreading rumors about her sleeping with him. As J.E. had not said anything to her mother about the abuse, Mrs. Horn spoke to several people, including Woods about the rumors mentioned by Appellant. Mrs. Horn and Woods urged J.E. to go to the Beaver police and from there she was referred to the authorities in Midwest City.

¶ 6 Near the time J.E. and Woods went to the police, Appellant telephoned J.E. but Woods answered the phone. Woods told Appellant that J.E. had told her something and "this is your chance to tell me your side to tell me anything ... She says you all have had sex. Is this true?" Appellant responded, "I'm going to tell you things happened that shouldn't have, and I can't tell you it's not true." When Woods asked him if this happened when J.E. was 13 years old, Appellant hung up on her.

¶ 7 Brandi McKeever testified at trial that she was 18 years old in 2000 when she began a relationship with Appellant. She said she was a friend of J.E.'s older sister. It quickly developed into a sexual relationship. McKeever testified that in comparing her to his then wife, Ada, Appellant told her she "was so tight that [she] made him come fast." McKeever married Appellant in October 2004 and divorced him in January 2005. McKeever testified that in "clearing the air before their marriage, she asked Appellant if there was anything he had not told her." She said Appellant told her that when J.E. was 12 years old, J.E. walked in on Appellant having sex with J.E.'s friend, "A". Later that day, J.E. tried to give Appellant oral sex, but he pushed her away. (J.E. testified she had a friend A.H. who would often spend the night at her house). McKeever said that at another time, Appellant told her "some women found it a turn on to be held down as if they were being raped."

¶ 8 The defense presented no witnesses but argued the State failed to prove beyond a reasonable doubt that Appellant committed the charged offenses.

¶ 9 In his first proposition of error, Appellant contends the trial court erred in admitting evidence of other crimes. Specifically, he complains of evidence of "consensual sex with Brandi McKeever involving statements regarding Appellant's sexual preferences" and evidence of alleged sexual conduct with the victim which occurred in Beaver County and was not the basis for the criminal charges filed in Oklahoma County.

¶ 10 The record shows the State filed a pre-trial Notice of Intent to Introduce Evidence of Other Crimes, specifically the sexual offenses committed by Appellant in Beaver County, in order to prove Appellant's "motive, intent, identity and method of operation." Six months later, the State filed another notice outlining its intent to offer evidence of Appellant's sexual assault on 14 year old A.H. as res gestae or in the alternative to prove Appellant's "plan, design, intent and lack of mistake." The defense objected to both motions and a hearing was held. At the hearing, the prosecutor argued the evidence was admissible under 12 O.S.2001, § 2404(B) and 12 O.S.Supp.2007, § 2413(A). Defense counsel argued the evidence was not relevant and the application of § 2413(A) violated his constitutional rights and could not be applied retroactively to his case. The trial court overruled the defense objection and admitted the evidence under both §§ 2404(B), 2413 and 2414.¹

¶ 11 Now on appeal, Appellant argues that 12 O.S.Supp.2007, § 2413 is unconstitutional as it violates his equal protection and due process rights under the 5th and 14th Amendments to the United States Constitution and Art. II, § 7 of the Oklahoma Constitution. The record in this case reflects that prior to trial, Appellant claimed § 2413 violated his due process rights. However, he raised no claim regarding equal protection. Therefore, while Appellant has preserved his due process claim for appellate review, he has waived his equal protection claim for all but plain error review. See Simpson v State, 1994 OK CR 40, ¶ 11, 876 P.2d 690, 693.

¶ 12 This is this Court's first opportunity to review the constitutionality of § 2413. When analyzing the constitutionality of a legislative act, "[e]very presumption must be indulged in favor of the constitutionality of the act, and it is the duty of the courts, whenever possible, to harmonize acts of the Legislature with the Constitution." State v. Hall, 2008 OK CR 15, ¶ 23, 185 P.3d 397, 403. "Statutes are to be liberally construed `with a view to effect their objects and to promote justice.'" Id., quoting 25 O.S.2001, § 29. "The constitutionality of a statute will be upheld unless it is `clearly, palpably, and plainly inconsistent with fundamental law.'" Id., quoting State v. Howerton, 2002 OK CR 17, ¶ 16, 46 P.3d 154, 157-158. "Parties alleging the unconstitutionality of a statute have the burden of proof." Id.

¶ 13 Title 12 O.S. Supp.2007, § 2413 provides:

A. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

B. In a case in which the state intends to offer evidence under this rule, the attorney for the state shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen (15) days before the scheduled date of trial or at such later time as the court may allow for good cause.

C. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

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¶ 14 Oklahoma's Due Process and Equal Protection provisions are the same as those found in the Federal Constitution. See Sawatzky v. City of Oklahoma City, 1995 OK CR 69, ¶ 4, 906 P.2d 785, 786 ("[t]he right to equal protection...