Simpson v. State

• Decision Date: 08 June 1994
• Docket Number: No. F-89-1335,F-89-1335
• Parties: James E. SIMPSON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 690

876 P.2d 690

James E. SIMPSON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-89-1335.

Court of Criminal Appeals of Oklahoma.

June 8, 1994.

Rehearing Denied July 27, 1994.

An Appeal from the District Court of Logan County, Donald L. Worthington, District Judge.

JAMES E. SIMPSON, Appellant, was tried by a jury in the District Court of Logan County and convicted of Count I, Sodomy (21 O.S.1981, § 886); Count II, First Degree Rape (21 O.S.Supp.1986, § 1114); Count III, Lewd Molestation (21 O.S.Supp.1985, § 1123); and Count IV, Exhibition of Pornography to a Minor/Solicitation of a Minor to Perform Obscene Acts (21 O.S.Supp.1984, § 1021(B)). The jury recommended he be sentenced to ten (10) years for Count I, one hundred (100) years for Count II, twenty (20) years for Count III, and thirty (30) years for Count IV. The trial court sentenced accordingly. AFFIRMED.

Brad Morelli, Guthrie, for appellant at trial.

Michael Wilson, Asst. Appellate Indigent Defender, Norman, for appellant on appeal.

Laura Austin Thomas, Marty McLaughlin, Asst. Dist. Attys., Guthrie, for State at trial.

Susan Brimer Loving, Atty. Gen. of Oklahoma, Sandra D. Howard, Asst. Atty. Gen., Chief, Criminal Div., Oklahoma City, for State on appeal.

OPINION

LUMPKIN, Presiding Judge:

Appellant James E. Simpson was tried by a Logan County jury in case no. CRF-88-42, and convicted of Count I, Sodomy (21 O.S.1981, § 886); Count II, First Degree Rape (21 O.S.Supp.1986, § 1114); Count III, Lewd Molestation (21 O.S.Supp.1985, § 1123); and Count IV, Exhibition of Pornography to a Minor/Solicitation of a Minor to Perform Obscene Acts (21 O.S.Supp.1984, § 1021(B)). He received sentences of ten (10) years for Count I, one hundred (100) years for Count II, twenty (20) years for Count III, and thirty (30) years for Count IV; all sentences were ordered to be served concurrently. We affirm.

The facts and issues presented in this case require the Court to analyze the historical jurisprudence of this Court, together with federal caselaw, in order to reset the plumb line previously established by our caselaw regarding the concept of fundamental error and the scope of review on appeal when an objection has not been preserved during the trial. Periodically, it is necessary to restate what has previously been enunciated regarding the procedural prerequisites for preserving error for appellate review, together with the appropriate scope of that review. As a result of the recognition of our prior jurisprudence, we hold and restate the following: (1) Failure to object with specificity to errors alleged to have occurred at trial, thus giving the trial court an opportunity to cure the error during the course of trial, waives that error for appellate review unless the error constitutes fundamental error, i.e. plain error; (2) The concept of fundamental error is now codified in the Oklahoma Evidence Code 12 O.S.1981, § 2104, and shall hereafter be referred to as plain error; (3) Plain error only allows review of an error on appeal which was not preserved through a timely objection at the trial court, but does not automatically constitute reversible error; (4) Plain error, which allows review on appeal in the first instance, will be reviewed by the appellate court in the same manner as error which was preserved by timely objection during the trial; (5) Error preserved by timely objection during the course of trial, together with plain error reviewed for the first time on appeal, will be analyzed to determine if the error requires reversal or whether the error was harmless. In this case, we find plain error occurred, based on the failure to comply with the in camera hearing requirements set forth in 12 O.S.1991, § 2803.1. However, we find the error harmless under the facts and law set forth herein.

I.

Appellant has not challenged the sufficiency of the evidence; therefore, an extensive recitation of facts is unnecessary. Suffice it to say that Appellant was convicted of performing the above acts with B.S., his daughter. When the daughter was eight years old and the mother was out of town attending her mother's funeral, Appellant lured B.S. to his bed, kissed her, talked her into taking off her nightgown, then talked her into sucking on his penis. He did this by telling her it was all right to do this, because her mother did the same thing. He also told B.S. not to tell anyone, that it would be their "secret." B.S. performed these oral sexual acts with Appellant on a regular basis until just before Christmas 1987, when she told her father she was tired of performing them. During this time, Appellant would show the child pictures of naked women in bondage, telling her they might try that some time. He also showed her a pornographic film depicting women having intercourse with men, and performing oral sodomy on men. He pointed out to her how the women "deep throated" the men in the film, and talked her into trying the procedure on him. These acts would usually occur when the child's mother was asleep or gone.

B.S. grew tired of the film and attempted to discourage its use by cutting out a certain portion of the film, throwing it under the porch, and eventually telling Appellant she no longer wanted to perform the oral sexual acts. At that point, Appellant talked her into having vaginal intercourse with him, again telling her it was normal. The girl was 11 years old at this point. These acts then continued on a regular basis in various parts of the residence and in a camper which was just outside the residence. The sexual acts stopped only after B.S. saw a film at school, began talking to friends, and discovered the relationship with her father was not normal.

Acting on a search warrant, authorities found a cache of magazines showing naked women in bondage and/or being tortured. Also found was the film the child described, and a scrapbook containing individual pictures of women in bondage, being tortured, or showing their genitalia disfigured by foreign objects. They also found a picture of a naked woman on the wall above Appellant's bed.

Appellant in his first proposition points out a violation of the provisions of 12 O.S.Supp.1986, § 2803.1, alleging no hearing was conducted outside the jury's presence to determine the reliability of the child's out-of-court statements. At trial, school psychologist Donna Powell and Department of Human Services social worker Jennifer Badger related to the jury statements B.S. made to them. The women's testimony was virtually identical, and varied only slightly from what B.S. herself testified at trial.

The State admits there is no evidence of an in camera hearing, but advances two arguments. It first points out that counsel failed to object to the women's testimony at the time it was offered, arguing Appellant has therefore waived the proposition for all but fundamental error. In the alternative, the State then points out the consistencies of the women's testimony and their consistency with the child's, arguing under the circumstances of this case the error was harmless and the women's testimony merely cumulative. In support of this, the State points to uncontradicted testimony by a pediatrician the child's genitalia were more consistent with that of a married woman than an 11-year-old child, indicating chronic vaginal intercourse. Based on the consistency of the child's testimony with the women's, and evidence presented by the doctor, the State argues any error in failing to hold the in camera as required by 12 O.S.Supp.1986, § 2803.1 was harmless.

Appellant responds our holding in Spears v. State, 805 P.2d 681, 683 (Okl.Cr.1991) precludes a harmless error analysis. In Spears, the Appellant likewise failed to object; however, this Court held the error was fundamental, and reversed. Appellant then argues the error was not harmless under the circumstances of this case. He claims the State ignored this Court's holding in Spears, and implies fundamental error always necessitates reversal. This case identifies the need for this Court to address and put into perspective the concept of what has previously been labeled as fundamental error. In addition, we must also define the scope and process of review of allegations of error not preserved at trial, together with the application of harmless error analysis.

The inconsistency of the ideas of absolutely precluding harmless error in this area of the Evidence Code while allowing the possibility in other areas of the Code has forced us to re-examine our holding in Spears. We do so, and now hold Spears is incorrect insofar as it precludes the possibility of harmless error under any circumstances; and to that extent, it must be overruled.

II.

A.

This analysis must begin by turning to the Evidence Code itself. The pertinent section here reads:

A. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected, and:

1. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; ....

....

D. Nothing in this section precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

12 O.S.1991, § 2104. An "error" is a deviation from a legal rule. United States v. Olano, 507 U.S. 725, ----, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508, 519 (1993). We have not specifically defined the term "substantial right"; however, we note the Oklahoma Supreme Court has defined "substantial" in this context as a "matter of substance as distinguished from matter of mere form." Davis v. Williams, 182 Okl. 80, 76 P.2d 251, 252 (1938). We have defined the term "plain errors," noting they are "errors affecting substantial rights although they were not brought to the attention of the court." Jones v. State, 772 P.2d 922, 925 (Okl.Cr.1...