James v. State

• Decision Date: 06 March 2009
• Docket Number: No. F-2007-1052.,F-2007-1052.
• Citation: 204 P.3d 793,2009 OK CR 8
• Parties: Daniel Cole JAMES, 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 793

2009 OK CR 8

Daniel Cole JAMES, Appellant v. STATE of Oklahoma, Appellee.

No. F-2007-1052.

Court of Criminal Appeals of Oklahoma.

March 6, 2009.

An Appeal from the District Court of Tulsa County; the Honorable Thomas C. Gillert, District Judge.

Kevin Adams, Attorney at Law, Tulsa, OK, attorney for defendant at trial.

James M. Hawkins, Assistant District Attorney, Tulsa, OK, attorney for the State at trial.

Lisbeth L. McCarty, Indigent Defense System, Norman, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, attorneys for the State on appeal.

OPINION

C. JOHNSON, Presiding Judge.

¶ 1 Appellant, Daniel Cole James, was convicted by a jury in Tulsa County District Court, Case No. CF-2004-3354, of Count 1: Rape by Instrumentation (21 O.S.2001, § 1111) and Count 2: Lewd Molestation (21 O.S.Supp.2002, § 1123). The jury sentenced Appellant to 35 years imprisonment on Count 1, and to 20 years imprisonment on Count 2. On October 23, 2007, the Honorable Thomas C. Gillert, District Judge, sentenced Appellant in accordance with the jury's recommendation. This appeal followed.

¶ 2 Appellant was charged with sexually abusing B.M., the four-year-old daughter of a family friend, by placing his finger in her vagina and his penis in her mouth several times between August 2002 and May 2003. The child, who was nine years old at the time of this trial, testified that Appellant ejaculated in her mouth on more than one occasion. The State presented the testimony of B.M.'s older sister, to whom she first disclosed the allegations in 2004, and the testimony of Jamie Vogt, a forensic interviewer, who spoke with B.M. after B.M.'s mother notified the authorities. The State also presented evidence that over a decade before the instant offenses, Appellant had sexually abused a former step-daughter in a similar manner. That witness, R.G., who was eighteen years old at the time of this trial, testified that in 1992, when she was approximately three years old, Appellant placed his penis in her mouth and ejaculated on two occasions. R.G.'s mother, Appellant's ex-wife, testified to the circumstances surrounding R.G.'s disclosure of the abuse.

¶ 3 R.G.'s testimony about other acts of sexual abuse committed by Appellant had also been presented in Appellant's first trial. Appellant was convicted; on direct appeal, we held that this evidence was improperly admitted, and remanded for a new trial. We reasoned that because the jury was not properly instructed on the limited use of other-crimes evidence, it may have used that testimony as substantive evidence that Appellant sexually abused B.M. James v. State, 2007 OK CR 1, ¶ 4, 152 P.3d 255, 257.¹

¶ 4 A few months after James was handed down, the Oklahoma Legislature enacted 12 O.S. §§ 2413 and 2414, which specifically addressed the type of other-crimes evidence challenged in that appeal. Laws 2007, S.B. 917, Ch. 76, §§ 1-2 (eff. April 30, 2007). Section 2413 applies to cases where the defendant is charged with enumerated offenses involving "sexual assault"; § 2414 applies to cases where the defendant is charged with crimes defined as "child molestation." 12 O.S.Supp.2007, §§ 2413(A), (D); 2414(A), (D). Each statute provides that evidence of other, specified offenses of a sexual nature "is admissible, and may be considered for its bearing on any matter to which it is relevant" 12 O.S.Supp.2007, §§ 2413(A), 2414(A) (emphasis added). Before Appellant's retrial, the State gave notice of its intention to admit evidence about R.G.'s claim of sexual abuse, citing these recently-enacted provisions. The trial court admitted the evidence over objection by the defense. This frames the question of a possible conflict between statutes, and the trial court's authority and obligation for a proper balance.

¶ 5 Appellant raises two propositions of error. In Proposition 1, he claims that the admission of evidence concerning R.G.'s claim of sexual abuse, pursuant to 12 O.S.Supp.2007, § 2414, violated his constitutional protection from ex post facto laws, because that statute was enacted after the alleged commission of the offenses against B.M.² U.S.Const., Art. I, §§ 9, 10; Okl.Const. art. II, § 15. We disagree. A law is ex post facto if it (1) criminalizes an act after the act has been committed, (2) increases the severity of a crime after it has been committed; (3) increases the punishment for a crime after it has been committed; or (4) alters the rules of evidence, allowing conviction on less or different testimony than the law required at the time the act was committed. See Carmell v. Texas, 529 U.S. 513, 522-25, 120 S.Ct. 1620, 1627-29, 146 L.Ed.2d 577 (2000); Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). It is the last variant that concerns us here, because at issue is a rule of evidence that declares certain types of evidence to be presumptively admissible in certain types of prosecutions.

¶ 6 The mere fact that a retroactively-applied change in evidentiary rules works to a defendant's disadvantage does not mean the law is ex post facto. The issue is whether the change affected the quantum of evidence necessary to support a conviction. Carmell, 529 U.S. at 546-47, 120 S.Ct. at 1640.³ Sections 2413 and 2414 of the Evidence Code merely provide that certain types of evidence shall not be categorically inadmissible in certain types of cases. Appellant's conviction for sexually abusing B.M. did not—at least as a matter of law—stand or fall on whether the other-crimes testimony of R.G. was admissible. Legislative enactments like §§ 2413 and 2414, which merely permit the jury to consider certain kinds of evidence for certain purposes, and are applied to conduct committed before enactment, do not raise ex post facto concerns. See Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 924, 43 L.Ed. 204 (1898) (state evidentiary rule permitting evidence of handwriting exemplars, for purposes of comparison with a disputed writing, enacted after reversal of defendant's conviction and before retrial, did not raise ex post facto concerns);⁴ Neill v. Gibson, 278 F.3d 1044, 1053 (10th Cir.2001) (Oklahoma statutes permitting jury to consider victim-impact evidence in a capital sentencing proceeding, applied to murders committed before enactment, did not raise ex post facto concerns); Coddington v. State, 2006 OK CR 34, ¶¶ 59-60, 142 P.3d 437, 453-54 (Oklahoma statutory amendment, permitting an "appropriate" pre-mortem photograph of the victim in a homicide prosecution, applied to homicides committed before amendment, did not raise ex post facto concerns). Thus, application of 12 O.S. § 2414 in Appellant's retrial did not violate constitutional protections from ex post facto laws. Proposition 1 is denied.

¶ 7 In Proposition 2, Appellant argues that even if R.G.'s testimony was admissible under § 2414, it nevertheless should have been excluded for credibility reasons. Again, we disagree. Sections 2413 and 2414 were taken, almost verbatim, from Federal Rules of Evidence 413 and 414, which were promulgated over a decade ago. While these provisions are perhaps not models of legislative clarity, we construe the language found in both as still requiring the trial court to balance the probative value of the proffered evidence against any unfairly prejudicial effect, pursuant to 12 O.S.2001, § 2403.

¶ 8 Although both statutes provide that the evidence at issue "is admissible," they go on to declare that the evidence "may be considered for its bearing on any matter to which it is relevant." 12 O.S.Supp.2007, §§ 2413(A), 2414(A) (emphasis added). Both statutes include the proviso: "This rule shall not be construed to limit the admission or consideration of evidence under any other rule." 12 O.S.Supp.2007, §§ 2413(C), 2414(C). This proviso is a two-edged sword. Sections 2413 and 2414 should obviously not be read to bar other types of bad-acts evidence that might be proffered in a sexual-abuse case, simply because they do not specifically mention them.⁵ Nor, however, should these provisions be read to absolutely trump all other evidentiary rules and constitutional concerns.⁶

¶ 9 As noted, these rules were copied from existing federal legislation, and we find the legislative history of those rules, and federal judicial interpretation of the rules, helpful to our own analysis. Both sources of guidance, and the plain language of the rules themselves, convince us that when evidence is proffered under 12 O.S. §§ 2413 or 2414, the trial court retains the authority—and responsibility—to consider, on a case-by-case basis, whether the probative value of the proffered evidence is substantially outweighed by an unfairly prejudicial effect.⁷ 12 O.S.2001, § 2403. Cf. Coddington, 2006 OK CR 34, ¶¶ 53-56, 142 P.3d at 452-53 (statute permitting pre-mortem photo of victim in homicide trials did not strip trial court of authority to exclude such evidence, when appropriate, under other provisions of the Evidence Code).

¶ 10 Evidence that the defendant has committed sex offenses similar to those for which he is on trial will undoubtedly be prejudicial to him. The real question, however, is whether it is unfairly so. 12 O.S.2001, § 2403. When evidence meeting the criteria of §§ 2413 or 2414 is offered, the Evidence Code's examples of how other-crimes evidence may properly be used (e.g. to show motive, opportunity, or common scheme or plan), found in § 2404(B), are still helpful to the trial court's assessment of probative value, and, consequently, in balancing probative value against unfairly prejudicial effect under § 2403. As we have observed many times, the probative value of other crimes committed by the accused increases when there is a visible connection between the crimes, or when all of the offenses, taken together, demonstrate a common scheme or plan. See e.g. Burks v. State, 1979 OK CR 10, ¶ 8, 594 P.2d 771,...