A.O. v The State Of Oklahoma

J-2018-1066

Filed: Aug. 8, 2019

For publication

Prevailing Party: A.O.

Summary

A.O. appealed his conviction for Child Sexual Abuse. Conviction and sentence were reversed. Kuehn dissented. In this case, A.O. was charged as a juvenile with Child Sexual Abuse after an incident where he touched another child inappropriately. During the trial, A.O. and his guardian claimed they were not properly informed of their right to a jury trial, and they said that the prosecutor made improper comments during the trial. The court ruled that A.O.'s due process rights were not violated regarding the jury trial but found that the conviction for Child Sexual Abuse was not justified. The court determined that the evidence actually supported a lesser charge of Assault and Battery instead, so they reversed the original conviction and remanded the case for the court to change the ruling to reflect the new charge. A judge named Kuehn disagreed with this decision, arguing that the laws at play in the case were not being interpreted correctly.

Decision

The District Court order adjudicating A.O. delinquent for Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E), is REVERSED. This matter is REMANDED to the District Court of McIntosh County for entry of an order modifying A.O.'s adjudication order. The adjudication order shall be MODIFIED to reflect that A.O. is adjudicated delinquent for one count of Assault and Battery, in violation of 21 O.S.2011, § 644. As SO modified, the adjudication is AFFIRMED. The child is REMANDED to the jurisdiction of the District Court of McIntosh County for the entry of a disposition order. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was A.O. informed of his statutory right to a jury trial, and were his due process rights violated at a bench trial?
• Is the conduct of touching another child's buttocks over her jeans considered child sexual abuse under 21 O.S.Supp.2014, § 843.5(E)?
• Did the prosecutor violate A.O.'s due process rights by expressing his opinion on A.O.'s guilt during the trial?

Findings

• the court erred regarding A.O.'s right to a jury trial, as the record supports that he was informed of and waived this right.
• the evidence was not sufficient to support a charge of Child Sexual Abuse under 21 O.S.Supp.2014, § 843.5(E).
• A.O.'s due process rights were not violated by the prosecutor's opinion during closing arguments, as it did not deprive him of a fair trial.

J-2018-1066

Aug. 8, 2019

A.O.

Appellant

v

The State Of Oklahoma

Appellee

OPINION

LEWIS, PRESIDING JUDGE:

On December 7, 2017, Appellant, A.O., was charged as a juvenile with Sexual Battery, in violation of 21 O.S.Supp.2017, § 1123(B), in McIntosh County District Court Case No. JDL-2017-29. On February 26, 2018, an Amended Delinquent Petition was filed charging A.O. as a juvenile with Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E). A non-jury trial was completed on September 25, 2018, and the Honorable David Martin, Special Judge, entered an order adjudicating A.O. a delinquent child pursuant to 10A O.S.Supp.2014, § 2-2-402. A.O. appeals from this order pursuant to 10A O.S.2011, § 2-2-601.

On appeal, A.O. raises the following issues:

1. A.O. WAS NEVER INFORMED OF HIS STATUTORY RIGHT TO A JURY TRIAL. THEREFORE, HIS DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS ADJUDICATED AT A BENCH TRIAL.
2. THE TEXT, STRUCTURE, AND PURPOSE OF 21 O.S.SUPP.2014, § 843.5(E) INDICATES THAT ONE CHILD TOUCHING ANOTHER CHILD’S BUTTOCKS OVER HER JEANS IS NOT THE TYPE OF CONDUCT THAT THE LEGISLATURE INTENDED TO CRIMINALIZE AS “CHILD SEXUAL ABUSE.”
3. A PROSECUTOR CANNOT GIVE HIS OPINION AS TO THE GUILT OF THE ACCUSED. THEREFORE, A.O.’S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE PROSECUTOR EXPRESSED HIS OPINION AS TO ONE OF THE ELEMENTS OF THE OFFENSE.

Pursuant to Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), this appeal was automatically assigned to the Accelerated Docket of this Court. Oral argument was held January 17, 2019, pursuant to Rule 11.2(E). At the conclusion of oral argument, the Court took its decision under advisement. After a review of the record before this Court and hearing oral argument, we find the record does not support A.O.’s Propositions I and III but pursuant to Proposition II, A.O. is entitled to relief.

The District Court order adjudicating A.O. delinquent for Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E), is REVERSED. This matter is REMANDED to the District Court of McIntosh County for entry of an order MODIFYING A.O.’s adjudication order to reflect that A.O. is adjudicated delinquent for one count of Assault and Battery, in violation of 21 O.S.Supp.2014, § 644, and as SO modified, the adjudication is AFFIRMED.

In his first proposition, A.O. argues reversal of his adjudication is required because the record is silent regarding whether he was informed of, or waived, his right to a jury trial. See 10A O.S.2011, § 2-2-401. This Court recently addressed this issue in G.W. v. State and eliminated the requirement that a waiver of the right to a jury trial be made affirmatively in the record. 2018 OK CR 36, ¶ 9, 433 P.3d 1283, 1286. Regardless, the record in this case is clear that A.O. and his guardian were both informed of his right to a jury trial and the right was waived.

A.O. maintains in Proposition III that he is entitled to relief because the prosecutor allegedly stated his opinion during the non-jury trial that A.O. was guilty. The prosecutor’s comment A.O. complains of in this proposition occurred during the State’s argument in response to A.O.’s demur to the evidence.

A.O. relies on Evans v. State and United States v. Young to support his argument that a prosecutor expressing his opinion that the evidence presented established an element of the crime in this case is plain error and requires reversal. See United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct 1038, 1048, 84 L. Ed. 2d 1, 14 (1985); Evans v. State, 1976 OK CR 38, ¶ 3, 546 P.2d 284, 285. The hearing was unable to be transcribed and the State requested a hearing to memorialize the parties’ recollections of what occurred. A hearing was held on December 18, 2018, and A.O.’s trial counsel testified A.O. was informed of his right to a jury trial, in the presence of his guardian, and that A.O. was adamant he did not want a jury trial. According to A.O.’s trial counsel, A.O. specifically directed trial counsel to set this case for non-jury trial.

A.O.’s third proposition is without merit.

In Proposition II, A.O. objects to the trial court’s failure to require the State to prove the elements of the underlying acts constituting Child Sexual Abuse. Appellant argues the State was not required to prove the correct elements.

A.O. was tried for one count of Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E). Section 843.5(E) defines “Child Sexual Abuse” as “willful or malicious sexual abuse, which includes but is not limited to rape, incest, and lewd or indecent acts or proposals, of a child under eighteen (18) years of age by another.” Appellee acknowledges that A.O.’s crimes in this case are lewd acts that would normally be prosecuted pursuant to 21 O.S.Supp.2017, § 1123, but for the age limitations found in Section 1123.

According to A.O., the Oklahoma Legislature did not intend Section 843.5(E) to allow prosecutors to circumvent the age restrictions found in Section 1123. We agree.

Judge Martin erred when he did not require the State to prove each element of the underlying crime, including the age requirements, in addition to the elements of 21 O.S.Supp.2014, § 843.5(E). As a result, the trial court was able to find A.O. guilty of Child Sexual Abuse without properly considering the elements of the underlying lewd acts.

We find that in order to convict an individual pursuant to 21 O.S.Supp.2014, § 843.5(E), the State must prove the elements of the underlying crime beyond a reasonable doubt. To find otherwise would chance rendering Section 843.5(E) unconstitutional for over-breadth and vagueness.

The evidence in this case is uncontroverted that A.O. touched the victim without permission. “A battery is any willful and unlawful use of force or violence upon the person of another.” 21 O.S.2011, § 642. While the evidence is insufficient to support an adjudication for Child Sexual Abuse, the evidence is more than sufficient to support an adjudication for simple battery.

DECISION

It is therefore the order of this Court that the McIntosh County District Court order adjudicating A.O. delinquent for Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E), is REVERSED. This matter is REMANDED to the District Court of McIntosh County for entry of an order modifying A.O.’s adjudication order. The adjudication order shall be MODIFIED to reflect that A.O. is adjudicated delinquent for one count of Assault and Battery, in violation of 21 O.S.2011, § 644. As SO modified, the adjudication is AFFIRMED. The child is REMANDED to the jurisdiction of the District Court of McIntosh County for the entry of a disposition order. 10A O.S.Supp.2018, § 2-2-501; 10A O.S.2011, § 2-2-601. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. 21 O.S.Supp.2017, § 1123(B)
2. 21 O.S.Supp.2014, § 843.5(E)
3. 10A O.S.Supp.2014, § 2-2-402
4. 10A O.S.2011, § 2-2-601
5. G.W. v. State, 2018 OK CR 36, I 9, 433 P.3d 1283, 1286
6. Evans v. State, 1976 OK CR 38, I 3, 546 P.2d 284, 285
7. United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct 1038, 1048, 84 L. Ed. 2d 1, 14 (1985)
8. 21 O.S.Supp.2014, § 644
9. 10A O.S.Supp.2018, § 2-2-501
10. 10A O.S.2011, § 2-2-601
11. 21 O.S.Supp.2014, § 843.5(E)
12. 21 O.S.Supp.2017, § 1123(A)
13. 21 O.S.Supp.2017, § 1123(B)
14. 21 O.S.Supp.2014, § 843.5
15. 21 O.S.1991, § 1123(A)
16. 10 O.S.Supp.1995, § 7115
17. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972)
18. Moss v. OK Dept. of Corr., 2016 OK CR 23, IT 18, 403 P.3d 379, 383

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2017) - Sexual Battery
• Okla. Stat. tit. 21 § 843.5 (2014) - Child Sexual Abuse
• Okla. Stat. tit. 10A § 2-2-402 (2014) - Delinquent Child
• Okla. Stat. tit. 10A § 2-2-601 (2011) - Appeal
• Okla. Stat. tit. 10A § 2-2-401 (2011) - Right to Jury Trial
• Okla. Stat. tit. 21 § 644 (2014) - Assault and Battery
• Okla. Stat. tit. 10A § 2-2-501 (2018) - Disposition Order

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 21 U.S.C. § 843.5(E) - Child Sexual Abuse
• 21 U.S.C. § 1123 - Lewd Molestation and Sexual Battery
• 21 U.S.C. § 642 - Battery

Other citations:

No other rule citations found.

Case citations:

• G.W. v. State, 2018 OK CR 36, I 9, 433 P.3d 1283, 1286
• Evans v. State, 1976 OK CR 38, I 3, 546 P.2d 284, 285
• United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct 1038, 1048, 84 L. Ed. 2d 1, 14 (1985)
• Patton v. State, 1998 OK CR 66, 126, 973 P.2d 270, 302
• Bosse v. State, 2017 OK CR 10, T 61, 400 P.3d 834, 856
• Huskey v. State, 1999 OK CR 3, 989 P.2d 1
• Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972)
• Switzer v. City of Tulsa, 1979 OK CR 73, I 4, 598 P.2d 247, 248
• Weeks v. State, 2015 OK CR 16, IT 18, 362 P.3d 650, 655
• Moss v. OK Dept. of Corr., 2016 OK CR 23, I 18, 403 P.3d 379, 383
• Lewis v. State, 2016 OK CR 12, IT 7, 387 P.3d 899, 902
• State v. Stice, 2012 OK CR 14, I 11, 288 P.3d 247, 250
• State v. Cooper, 2018 OK CR 40, I 11, 434 P.3d 951, 954
• Arganbright v. State, 2014 OK CR 5, IT 15, 328 P.3d 1212, 1216
• Braitsch v. City of Tulsa, 2018 OK 100, I 2, 436 P.3d 14, 17