Huskey v. State

• Decision Date: 08 January 1999
• Docket Number: No. F-97-1548., No. F-97-1541
• Parties: Jim Ann HUSKEY and John Huskey, Appellants, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

989 P.2d 1

1999 OK CR 3

Jim Ann HUSKEY and John Huskey, Appellants, v. STATE of Oklahoma, Appellee.

Nos. F-97-1541, F-97-1548.

Court of Criminal Appeals of Oklahoma.

January 8, 1999.

Rehearing Denied February 11, 1999.

Mark A. Morrison, Phelps & Morrison, Durant, Oklahoma, for Defendant at Trial.

Warren Gotcher, Gotcher & Belote, Mcalester, Oklahoma, for Appellants at Trial.

Greg Jenkins, Assistant District Attorney, W.A. Drew Edmondson, Attorney General of Oklahoma, Alecia A. George, Assistant Attorney General, for Appellee at trial.

Warren Gotcher, Gotcher & Belote, Mcalester, Oklahoma, for Appellants on appeal.

W.A. Drew Edmonson, Attorney General of Oklahoma, Alecia A. George, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

SUMMARY OPINION

CHAPEL, Presiding Judge:

¶ 1 Jim Ann Huskey and John Huskey were jointly tried by jury and convicted of Child Abuse in violation of 10 O.S.Supp.1995, § 7115, in the District Court of Bryan County, Case Nos. CR-96-423 and CR-96-424. In accordance with the jury's recommendation, the Honorable Willard Dreisel sentenced each co-defendant to life imprisonment and a fine of $5000. The Huskeys each appeal from this conviction and sentence. The appeals were consolidated by separate order.¹

¶ 2 The Huskeys each raise five propositions of error in support of his or her appeal:

I. The trial court incorrectly instructed the jury as to the crime of lewd and indecent acts, a charge not plead or found at the preliminary hearing. By doing this [Huskey] was denied a fair trial. Furthermore the instruction as to lewd and indecent acts was incorrect as the court left out essential elements of that crime, all prejudicing [Huskey] and denying [him or her] a fair trial;

II. [Huskey] was denied due process and fundamental fairness when the court instructed the jury on a different charge than the charge in the information and charge that was the subject of the bind over at preliminary hearing;

III. The film of the child playing with anatomical dolls should not have been admitted, and the opinions of the experts concerning the same are inadmissible due to the scientific controversy over the use of anatomical dolls for diagnosis;

IV. The court should have sustained the demurrer to the evidence and there is a failure to sustain by evidence the allegations in the Information; and

V. The trial court committed numerous errors that denied [Huskey] fundamental fairness either individually or collectively and entitle [him or her] to a reversal.

¶ 3 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that reversal is not required under the law and evidence. In reaching our decision we find in Proposition III that the DHS videotape of the victim was properly admitted, with sufficient particularized guarantees of trustworthiness, under the state of mind exception to the hearsay rule and as a statement of a child victim describing sexual conduct with a child.² We further find the State's expert witnesses gave appropriate opinion testimony and the trial court did not err in refusing to consider its admissibility as scientific evidence.³ We find in Proposition IV that the trial court did not err in overruling the Huskeys' demurrer to the evidence, and sufficient evidence supported each conviction for child abuse.⁴ We find in Proposition V that (1) the trial court did not err in denying the Huskeys' Motion to Suppress;⁵ (2) trial counsel were not ineffective in pressing for a hearing on the Motion to Suppress or in preparation for trial;⁶ (3) evidence of John Huskey's sexual approaches to another daughter were admissible to prove motive, intent, plan, and absence of mistake or accident⁷ and did not prejudice Jim Ann Huskey;⁸ (4) photographs of Jim Ann Huskey were relevant as evidence showed J.A.H. was present and awake at the time they were taken,⁹ and these photographs did not prejudice John Huskey; and (5) the prosecutor neither misstated evidence nor engaged in improper argument.

¶ 4 Propositions I and II present questions of first impression, and we address them more fully. The Huskeys were charged under 10 O.S.Supp.1995, § 7115:

Any parent or other person who shall willfully or maliciously engage in child abuse or neglect or who shall otherwise willfully or maliciously injure, torture, maim, use unreasonable force upon a child under the age of eighteen, or sexually abuse, sexually exploit or otherwise abuse or neglect such child, or who shall cause, procure or permit any of said acts to be done, shall upon conviction [be punished by up to life imprisonment and a $5000 fine]. [Provisions the trial court found applicable are in italics.]¹⁰

The Information specified that the particular form of abuse charged was mental injury through exposure to explicit adult sexual conduct and acts, and by failure to prevent the same. Thus the State ultimately charged, and had to prove, that J.A.H. suffered mental injury due to or as a result of the Huskeys' acts. The descriptive language contains a reasonable account of the evidence in this case but does not precisely track the language of any existing sexual abuse statute. It is most similar to the crime codified as lewd or indecent acts.¹¹

¶ 5 The trial court determined that the italicized statements above applied to the charges and evidence. The trial court noted the absence of case law on the amended § 7115 and determined that the statute created three ways to accomplish child abuse: (1) torture, etc. (not applicable here); (2) sexual abuse; and (3) sexual exploitation. The court noted the latter two were defined in the child abuse reporting and prevention act¹² and found the State charged and presented sufficient evidence to support either sexual abuse or sexual exploitation. Consequently, the trial court determined it was appropriate to include instructions on sexual abuse and sexual exploitation.¹³ Lacking a standard jury instruction for sexual exploitation, the trial court created Instructions 10 and 11 from § 7115 and the definitions in § 7102(B). Further definitions were taken from the statute and Oklahoma Uniform Jury Instructions — Criminal (2nd) 4-139 (OUJI-CR (2nd)). The jury was also instructed that child abuse could be accomplished by sexual abuse or sexual exploitation. The Huskeys do not challenge these instructions on appeal.

¶ 6 In Proposition I the Huskeys complain about Instruction 9, regarding sexual abuse. The standard OUJI instruction on sexual abuse, 4-36, has as the third element "[Specify Particular Allegation of Sexual Abuse]." Thus the trial court was required to determine which particular sexual abuse crime the Information and evidence most resembled. The court reasonably concluded that the Information charged the Huskeys with exposing J.A.H. to explicit adult sexual activity, and the evidence showed they had willfully permitted J.A.H. to look at several adults' private parts and sexual acts performed in the child's presence, and had looked upon, touched or felt J.A.H.'s body in a lewd or lascivious manner, for their own sexual gratification. The court determined that the third element of the instruction on sexual abuse should specify the elements of lewd and indecent acts.¹⁴ Instruction 9 reads:

No person may be convicted of a[sic] child abuse by sexual abuse of a child unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, Willful or malicious;

Second, Causing, procuring or permitting;

Third, Lewd or Indecent Acts;

Fourth, Upon a child under the age of eighteen;

Fifth, By a person responsible for the child's welfare.

In order to satisfy the third element of Lewd or Indecent Acts, the State must prove each element of either A or B below beyond a reasonable doubt:

A. (1) The defendant looked upon, touched or felt;

(2) The body or private parts of the child;

(3) In any lewd or lascivious manner; OR

B. (1) A child under sixteen years of age;

(2) To look upon the private parts of another person or sexual acts performed in the child's presence;

(3) For the purpose of sexual gratification;

(4) In a lewd and lascivious manner.

The words "lewd" and "lascivious" have he [sic] same meaning and signify conduct which is lustful and which evinces an eagerness for sexual indulgence.

¶ 7 The Huskeys requested an alternative instruction on the elements of "abuse or neglect" by willfully or maliciously causing or allowing mental injury by exposing a child to explicit adult sexual acts and conduct, and failure to protect the child from the same, tracking the language in the Information. This is headed "OUJI-CR 422 (Modified)" and appears to combine the OUJI-CR (2nd) instructions on sexual abuse and neglect of children. The trial court refused this request and instructed on the elements of the crimes actually charged in the Information. The Huskeys have not shown this decision was an abuse of discretion.

¶ 8 On appeal, the Huskeys generally disagree with Instruction 9 and complain about the specific elements included for "lewd or indecent acts." The Huskeys are apparently confused about the crime charged. The type of child abuse charged under § 7115 is most similar to "lewd or indecent acts" but this does not mean the jury was instructed on the latter crime, nor were the Huskeys convicted of it. The crime of sexual abuse punishes persons who engage, cause, procure or permit child abuse as otherwise defined.¹⁵ There is no element of force. The crime of lewd or indecent acts punishes those who "force or require" a child to look upon others' private parts or sexual acts.¹⁶ Over objection, Instruction 9 did not include "force or require" in the elements of "lewd or indecent acts," the third overall element of sexual abuse. The Huskeys claim this lessened the burden of proof by providing an incomplete list of elements for the specific charge of lewd...