Neloms v. State, F–2009–1124.

• Decision Date: 28 March 2012
• Docket Number: No. F–2009–1124.,F–2009–1124.
• Citation: 274 P.3d 161,2012 OK CR 7
• Parties: John Fitzgerald NELOMS, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2012 OK CR 7

274 P.3d 161

John Fitzgerald NELOMS, Jr., Appellant,

v.The STATE of Oklahoma, Appellee.

No. F–2009–1124.

Court of Criminal Appeals of Oklahoma.

March 28, 2012.

¶ 0 An Appeal from the District Court of Cleveland County; the Honorable Lori M. Walkley, District Judge.Malcolm Savage, Lydia Green, Oklahoma City, OK, attorneys for defendant at trial.

Greg Mashburn, District Attorney, Jennifer Austin, Assistant District Attorney, Norman, OK, attorneys for State at trial.

S. Gail Gunning, Norman, OK, attorney for appellant on appeal.W.A. Drew Edmondson, Oklahoma Attorney General, Jay Schniederjan, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

A. JOHNSON, Presiding Judge.

¶ 1 Appellant John Fitzgerald Neloms, Jr. was tried by jury in the District Court of Cleveland County in Case No. CF–2007–1812, for First Degree Rape in violation of 21 O.S.2001, § 1114(A)(3) (Count 1), and First Degree Rape by Instrumentation in violation of 21 O.S.Supp.2007, § 1111.1 (Count 2).¹ The jury found Neloms guilty and imposed a sentence of life imprisonment on each count. The trial court sentenced accordingly and ordered that the sentences be served consecutively. From this Judgment and Sentence Neloms appeals, raising the following issues:

(1) whether the admission of certain other crimes evidence or bad acts was improper and unfairly prejudiced him;

(2) whether he was denied a fair trial by the improper admission of false and inflammatory testimony regarding alleged injuries to the prosecutrix;

(3) whether his sentences are excessive and should be favorably modified; and

(4) whether cumulative error deprived him of a fair trial.

¶ 2 We find reversal is not required and affirm the Judgment and Sentence of the District Court.

FACTS

¶ 3 In the early morning hours of November 21, 2007, four-year-old B.N. was sleeping on the floor of her family's living room in an apartment in Norman, Oklahoma. Her siblings and parents were asleep in their respective bedrooms. B.N.'s mother allowed B.N. to sleep in the living room because B.N. was suffering from an ear infection and had finally fallen asleep there.

¶ 4 Around 3:00 a.m., B.N. went into her parents' bedroom in her shirt and underwear crying and screaming that someone had hurt her. After lifting B.N. into the bed, B.N.'s mother noticed blood on B.N.'s panties and blanket, her feet, left leg, and the carpet. B.N. was taken to Norman Regional Hospital by ambulance and then transferred to Children's Hospital in Oklahoma City where she was sedated for a sexual assault examination.

¶ 5 B.N. had an abrasion on the inside of her upper lip and red marks on her back and abdomen. There was bruising and swelling of the vaginal area. She also had bleeding from her injuries that included a tear in the labia, fissures around the clitoris, a laceration below the vaginal canal opening, and tears inside the vaginal canal. The hymen was not intact.

¶ 6 During a forensic interview conducted the day after the assault, B.N. told her interviewer that her attacker was black and that he “pinched her pee with his fingers,” “punched her pee with his pee,” and his “pee went inside her pee.” During another forensic interview, B.N. picked out a photograph of Neloms without hesitation from a photo lineup by circling his picture with a crayon. She also identified Neloms at the preliminary hearing, but was unable to identify him at trial. At trial, B.N. testified that she circled the photograph in the photo lineup because she was sure that the photograph depicted the person who hurt her.

¶ 7 DNA samples obtained from B.N. during the sexual assault examination could not exclude Neloms as the donor, and the partial DNA profile that was detected in these samples was estimated to occur in approximately 1 in 793 African–Americans.

¶ 8 A nearby neighbor of B.N.'s family testified that he was returning to his apartment between 3:00 and 3:20 a.m. on the morning of November 21st when he heard a door close and then saw a man with a pony tail running away. Several witnesses testified that Neloms wore his hair in a pony tail at the time. Travis Kramer, a former friend of Neloms, testified that in a telephone conversation with Neloms, Neloms told him, among other things, that “I should have killed you and that little girl” (State's Exhibit 2; Kramer Tr. at 54).

¶ 9 Testimony of various witnesses placed Neloms in B.N.'s apartment complex throughout the evening of November 20, 2007. Neloms's girlfriend testified that despite Neloms asking her to tell police that he was with her all night, she last saw Neloms at 7:00 p.m. on November 20th when she dropped him off at the apartment complex where B.N. lived. Another friend of Neloms testified that Neloms left her apartment in that apartment complex at 1:00 a.m. on the morning of November 21st.

¶ 10 At trial, the State introduced evidence about an unrelated burglary at a residence of the Hofmann family in Norman, Oklahoma, a year-and-a-half earlier. In that case, the Hofmanns were asleep in their bed when an intruder entered their home. The intruder turned on the Hofmanns' computer and used it to conduct internet searches and view images of young girls in sexually suggestive poses and clothing. By following the history of web sites visited, the internet searches stored on the computer, and information from an image that had jammed in the Hofmanns' printer, police printed copies of some of the images that the intruder had viewed. Some of these images were introduced as evidence at trial.²

¶ 11 The intruder had obviously masturbated in front of the computer screen because semen was found on the computer keyboard and table. An OSBI criminalist testified that the DNA extracted from the semen on the computer table matched Neloms's DNA profile. The trial court judge allowed the State to introduce the Hofmann burglary evidence as evidence of a common scheme and plan that was relevant to proving the identity of B.N.'s attacker.

DISCUSSION

1.Evidence of Other Crimes, Wrongs, or Acts

¶ 12 Neloms claims that evidence showing that he broke into the Hofmann home a year-and-a-half earlier and masturbated in front of a computer screen to images of young girls was improperly admitted as evidence of other crimes, wrongs, or acts. This Court reviews a trial court's decision to allow introduction of evidence of other crimes for an abuse of discretion. Williams v. State, 2008 OK CR 19, ¶ 36, 188 P.3d 208, 218.

¶ 13 The State defends the admission of the Hofmann evidence, as it did in the district court, by arguing that the evidence was admissible under 12 O.S.Supp.2007, §§ 2413 and 2414. Section 2413 provides in part that

[i]n 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.

12 O.S.Supp.2007, § 2413(A) (emphasis added). Similarly, Section 2414 provides in part that

[i]n a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

12 O.S.Supp.2007, § 2414(A) (emphasis added). It is obvious from the plain language of these two statutory provisions, however, that the Hofmann evidence was not admissible under either section. These two sections permit introduction of evidence of other sexual “ assaults ” or instances of child “ molestation.” Masturbation in front of a computer monitor displaying images of children is neither sexual assault, nor molestation of a child. The Hofmann evidence was therefore not admissible under either Section 2413 or Section 2414.

¶ 14 Anticipating a finding that the Hofmann evidence was not admissible under Section 2413 or Section 2414, the State argues next that the evidence was, as the trial court concluded, admissible under 12 O.S.2001, § 2404(B), as probative of Neloms's identity in the instant offense because it was part of a common scheme and plan. According to the State, the trial court's decision to allow evidence of the prior break-in under the common scheme and plan exception was correct because the two crimes are factually similar thereby making the Hofmann evidence probative of Neloms's identity as the perpetrator of the crimes against B.N. By making this argument, the State improperly conflates the identity exception to 12 O.S. § 2404(B), which requires unique similarities between the crimes amounting to a “signature,” with the common scheme and plan exception, which requires a relatedness between the crimes such that the other crime paved the way for the current offense or the second offense is dependent on the first. Owens v. State, 2010 OK CR 1, ¶ 14, 229 P.3d 1261, 1266–1267; see also, Williams, 2008 OK CR 19, ¶ 38, 188 P.3d at 219 (“[e]vidence that the defendant committed another crime is admissible to show identity under the common scheme or plan exception when the previous crime prepares the way for another and the second crime is dependent on the commission of the first”); James v. State, 2007 OK CR 1, ¶ 3, 152 P.3d 255, 257 (holding that for other crimes evidence to be admissible under the common scheme and plan exception, “[t]here must be a visible connection between the other crimes evidence and the charged crimes”).

¶ 15 Understanding that the common scheme and plan exception requires the two crimes to be related, the evidence in this case did not support a finding that the break-in at the Hofmann residence was part of a common scheme and plan that led to B.N.'s rape. That is, there is no evidence that B.N.'s rape was in any way dependent on, or facilitated by, the break-in at the Hofmann residence a year-and-a-half earlier. Lacking any dependence or facilitation nexus, the two...