W.D.C. v. State

Citation799 P.2d 142
Decision Date11 October 1990
Docket NumberNo. J-89-641,J-89-641
PartiesW.D.C., Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

W.D.C., Appellant, was charged with the crimes of Oral and Anal Sodomy in Oklahoma County, Case No. CRF-89-1543, before the Honorable Russell D. Hall, Special Judge. He appeals from denial of his motion to be certified as a child. AFFIRMED.

Robert J. Mildfelt, First Asst. Public Defender, Oklahoma City, for appellant.

Robert H. Macy, Oklahoma County Dist. Atty., Cassandra M. Williams, Asst. Dist. Atty., Oklahoma City, for appellee.

OPINION

LANE, Vice Presiding Judge:

Pursuant to 10 O.S.Supp.1988, § 1104.2 seventeen year old W.D.C., Appellant, was charged as an adult by Information with the crimes of Forcible Anal Sodomy (21 O.S.Supp.1982, § 888) (Count I) and Forcible Oral Sodomy (21 O.S.Supp.1982, § 888) (Count II) in Oklahoma County District Court, Juvenile Division, Case No. CRF-89-1543. W.D.C. appeals the finding of probable cause at the preliminary hearing arguing that the child victim was unreliable and therefore the magistrate abused his discretion in finding the child victim, K.M., to be unavailable to testify and allowing a video taped interview of K.M. into evidence. He also appeals the denial of his motion for certification as a child. Although the appellant raises a very serious evidentiary question, we find the question is not properly before us. The finding of probable cause at the preliminary examination is not an appealable order, and therefore we cannot reach the evidentiary question raised therein. We affirm the denial of reverse certification.

W.D.C. is charged with committing oral and anal sodomy on K.M., while he was babysitting the child, between November 1, 1988 and March 14, 1989. K.M. was four (4) years old at the time of the preliminary hearing. The Juvenile Act, 10 O.S.1981, § 1101 et seq. was amended in 1989 and 1990, however, throughout this opinion we will apply the Act as in force at the time the crime was committed.

There is no doubt that the appellant could appeal from a prosecutive merit finding in a certification order had he been charged as a child. When an individual has been charged as a juvenile and a certification hearing is held to determine whether the child may be tried as an adult, the juvenile judge must make two ultimate findings. The judge must determine both that there is prosecutive merit to the claim and that the accused juvenile is not a fit subject for rehabilitation by the facilities and programs available to the juvenile court. D.A.M. v. State, 760 P.2d 842 (Okl.Cr.1988). The order granting certification, which is a final appealable order under 10 O.S.1981, § 1112(e), thus includes the determination of prosecutive merit. This prosecutive merit hearing is not the constitutionally and statutorily required criminal preliminary examination for it is not an examination before a magistrate. See Okla.Const. art. II § 17, 22 O.S.1981, §§ 251 to 258, Matter of R.L.N., 603 P.2d 1149 (Okl.Cr.1979).

In the present case the appellant was charged with nonconsensual sodomy, one of the crimes which require that he be considered as an adult. 10 O.S.1981, § 1104.2(A). This statute makes clear that when a person sixteen (16) or seventeen (17) years of age is considered as an adult for committing certain offenses the Court must hold two separate hearings, the criminal preliminary examination, and upon completion of the criminal preliminary examination, a certification hearing if a motion for certification as a child is filed. See 10 O.S.1981 § 1104.2(C). This part of the Juvenile Code may be initially confusing for it uses the term "criminal preliminary hearing" rather than follow the language of 22 O.S.1981, §§ 251 et seq. We find that the legislature intended this hearing to be the preliminary examination required by both the state constitution and 22 O.S.1981, §§ 251 et seq. Any other interpretation would reach the procedurally absurd result that the court would be required to conduct a second and totally redundant examination if it refused to certify the defendant as a juvenile.

The order denying certification as a child is a final appealable order. 10 O.S.Supp.1988, § 1104.2(E). However, no statutory authority exists for the appeal by a defendant from a criminal preliminary examination. Therefore, even though the appellant raises a very serious question regarding the admissibility of a video taped interview with K.M. which was admitted into evidence in the...

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    • United States
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    ...1955 OK CR 56, ¶ 9, 283 P.2d 573. 30. Smith v. State, 1981 OK CR 41, ¶ 5, 626 P.2d 1357. 31. See, W.D.C. v. State, 1990 OK CR 71, ¶ 1, 799 P.2d 142; K.L.J. v. State, 1990 OK CR 22, ¶ 1, 824 P.2d 361; S.A.H. v. State, 1988 OK CR 71, ¶ 1, 753 P.2d 381; Canion v. State, 1983 OK CR 61, ¶ 2, 663......
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