Miller v. State, F-88-570

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Citation827 P.2d 875,1992 OK CR 8
Docket NumberNo. F-88-570,F-88-570
PartiesHarold Ray MILLER, Appellant, v. STATE of Oklahoma, Appellee,
Decision Date19 February 1992

HAROLD RAY MILLER, Appellant, was tried by jury for the crime of ATTEMPTED PANDERING in Case No. CRF-87-419 in the District Court of Comanche County before the Honorable William M. Roberts, District Judge. Appellant was sentenced to twelve (12) years in the custody of the Oklahoma Department of Corrections and has perfected this appeal. Judgment and Sentence is REVERSED and REMANDED for new trial.

Thomas Purcell, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Alecia A. George, Asst. Atty. Gen., Oklahoma City, for appellee.


LANE, Presiding Judge:

Appellant, Harold Ray Miller, was tried by jury for the crimes of Attempted Pandering, After Former Conviction of a Felony (21 O.S.1981, § 1081); and Indecent Exposure (21 O.S.1981, § 1021) in Comanche County District Court, Case No. CRF-87-419. The jury found him guilty of attempted pandering and not guilty of indecent exposure. The trial court sentenced him to twelve years imprisonment as recommended by the jury.

Appellant raises four propositions of error. We will address only the argument that the Information charging the crime of attempted pandering was fatally defective as it did not charge all the elements of the crime. We find this error requires reversal which renders the appellant's other arguments moot.

The appellant had known Debbie Gathe for approximately three years when he came to her house in the early morning hours of August 25, 1987. He tried to talk her into becoming a prostitute, telling her how easy it would be and how much money she could make. He then attempted to kiss her, dragged her into the bathroom by the hair, pulled down his pants and demanded that she perform oral sodomy. At this point Gathe's young son came into the bathroom and the appellant left. Gathe reported this to the police who, as a result, hid a microphone and transmitting device in her living room. The appellant returned to Gathe's home early the next morning. He again told Gathe she should become a prostitute, and offered to protect and clothe her in exchange for sixty percent of her earnings. Surveillance officers heard part of this conversation, but it was not recorded.

The Information charging the appellant with the crime of pandering under 21 O.S.1981, § 1081 alleged:

... that the said HAROLD RAY MILLER did unlawfully, wilfully, knowingly, and feloniously commit the crime of attempted Pandering in the manner and form as follows: that the said Harold Ray Miller did feloniously attempt to induce and encourage one Debbie Gathe, a female person to become a prostitute that said inducement consisted of promises by the said defendant to provide the said Debbie Gathe to engage in prostitution in the City of Lawton, Oklahoma.

Title 21 O.S.1981, § 1081, the pandering statute, prohibits inducing or encouraging someone to become an "inmate of a house of prostitution" or to enter or leave the State for the purpose of prostitution. The Information does not allege either of these essential elements.

Appellant challenges the validity of the Information, arguing it fails to state a crime. The State counters with the dual position that the appellant waived this argument by failing to challenge the Information by demurrer prior to entering a plea, and that he was not in fact misled by the Information.

The requirement that the Information state facts to allege every material element of the crime charged has been firmly rooted in Oklahoma jurisprudence since the time of statehood. See Stout v. Territory, 2 Okl.Cr. 500, 103 P. 375 (1909); Fletcher v. State, 2 Okl.Cr. 300, 101 P. 599 (1909); Abrams v. State, 13 Okl.Cr. 11, 161 P. 331 (1916); Armour v. State, 72 Okl.Cr. 44, 112 P.2d 1116 (1941); Dunbar v. State, 75 Okl.Cr. 275, 131 P.2d 116 (1942); McCoy v. State, 92 Okl.Cr. 412, 223 P.2d 778 (1950); Douglas v. State, 93 Okl.Cr. 132, 225 P.2d 376 (1951); Jones v. State, 94 Okl.Cr. 15, 229 P.2d 613 (1951); Vandiver v. State, 97 Okl.Cr. 217, 261 P.2d 617 (1953); Gibson v. State, 328 P.2d 718 (Okl.Cr.1958); Fish v. State, 505 P.2d 490 (Okl.Cr.1973); Wilds v. State, 545 P.2d 779 (Okl.Cr.1976); Williams v. State, 579 P.2d 194 (Okl.Cr.1978); Nunley v. State, 660 P.2d 1052, cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 179 (Okl.Cr.1983); Plotner v. State, 762 P.2d 936 (Okl.Cr.1988).

The test for sufficiency of the Information which the State advances, that it sufficiently apprises the defendant of what he must be prepared to meet, is only the second prong of the two-prong test for sufficiency of the Information articulated by this Court:

The true test of sufficiency is not whether it might possibly have been made more certain, but whether it contains every element of the offense to be charged and sufficiently apprises the defendant of what he must be prepared to meet. (emphasis added).

See Ex Parte Burnett, 78 Okl.Cr. 147, 145 P.2d 441 (1944); Sparkman v. State, 67 Okl.Cr. 245, 93 P.2d 1095 (1939); Stokes v. State, 86 Okl.Cr. 21, 189 P.2d 424 (1948), modified on other grounds, 86 Okl.Cr. 21, 190 P.2d 838 (1948); Argo v. State, 88 Okl.Cr. 107, 200 P.2d 449 (Okl.Cr.1948); Raper v. State, 96 Okl.Cr. 18, 248 P.2d 267 (1952); Frazier v. State, 267 P.2d 155 (Okl.Cr.1954); Fish v. State, supra; City of Tulsa v. Haley, 554 P.2d 102 (Okl.Cr.1976), overruled on other grounds, 775 P.2d 826, 828 (1989); Lamb v. State, 626 P.2d 1355 (Okl.Cr.1981); Nunley v. State, supra.

Some of these cases state the "elements" must be alleged, while others use the language "the particulars" or "facts constituting" the crime. These terms are equivalent. They all mean that the criminal Information must set forth facts to allege each element of the crime charged.

This pleading requirement has long been held by this Court to be constitutional. In Fletcher we held the due process clause of the Oklahoma Constitution Article II, § 16 requires notice of all the elements of the specific offense charged. Driving the point home the Court asked rhetorically,

Who will contend this is done when the Indictment or Information does not contain a statement of all the particulars essential to constitute an offense or crime.

101 P. at 604. In Stokes we based our holding on Article II, § 20 of the Oklahoma Constitution. We explained:

This requirement is not an unreasonable one but is in keeping with the Constitution and statutory provisions with reference to criminal pleading, as well as the provisions of this court construing such provisions.

189 P.2d at 428. See also City of Tulsa v. Haley, 554 P.2d at 103.

In addition to being constitutional, the requirement that the Information set forth facts to allege every material element of the crime charged is also statutory. Title 22 O.S.1981, §§ 401 through 410 1 set forth the requirements for sufficiency of an indictment or Information.

Sections 401 through 410 provide in relevant part as follows:

§ 401. Requisites of indictment or information.

The indictment or information must contain:

1. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties.

2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. (emphasis added).

§ 402. Indictment or information must be certain and direct.

The indictment or information must be direct and certain as it regards:

1. The party charged.

2. The offense charged.

3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense. (emphasis added).

§ 403. Designation of defendant by fictitious name.

§ 404. Single offense to be charged--Different counts.

§ 405. Allegation of time.

§ 406. Misdescription of person injured or intended to be injured.

§ 407. Words, how construed.

The words used in an indictment or information must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.

§ 408. Statute not strictly pursued.

Words used in a statute to define a public offense, need not be strictly pursued in the indictment or information; but other words conveying the same meaning may be used.

§ 409. Indictment or information, when sufficient.

The indictment or information is sufficient if it can be understood therefrom: ...

6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

7. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.

§ 410. Immaterial informalities to be disregarded.

No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

Our holding that the Information must charge all essential elements of the crime has been grounded on Section 401, Stokes, 189 P.2d at 428-9; Fish, 505 P.2d at 494; City of Tulsa v. Haley, 554 P.2d at 103-4; Section 402, Stokes, supra; City of Tulsa, supra; Sparkman, 93 P.2d at 1100; Section 409; Dunbar, 131 P.2d at 122; Wilds, 545 P.2d at 783; and sections 406, 407 and 410; Sparkman, supra.

The State's argument that objection to the Information was waived by failing to lodge it prior to entering a plea is unavailing for several reasons. In the first...

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