Wayne William White v The State Of Oklahoma

F-2018-321

Filed: May 23, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Wayne William White appealed his conviction for Stalking. His conviction and sentence were for twenty years in prison. Judge Kuehn, along with other judges, agreed with the decision, but Judge Rowland had a different opinion. In the case, Wayne White was found guilty of stalking his girlfriend by repeatedly calling her, leaving threatening messages, and damaging her property, despite a protective order against him. He argued that the trial court should have forced the prosecution to specify which exact actions they were using to prove the stalking. He thought this would make it fairer for the jury to decide if he was guilty. The judges looked at his claims and decided that the law did not require the prosecution to specify the acts. They said that as long as the jury agreed he was guilty of stalking, it did not matter which specific actions were considered. Since they found no errors in the trial, they kept the original decision, and Wayne White's sentence remained.

Decision

The Judgment and Sentence of the District Court of Wagoner County is AFFIRMED. 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 delivery and filing of this decision.

Issues

• Was there an error in the trial court's failure to require the prosecution to "elect between acts"?
• Did the failure to require the prosecution to elect between acts result in ineffective assistance of counsel?

Findings

• The court erred.
• The court erred.

F-2018-321

May 23, 2019

Wayne William White

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Wayne William White, was convicted by a jury in Wagoner County District Court, Case No. CF-2014-341, of Stalking (21 O.S.2011, § 1173(B)(1)), After Conviction of Two or More Felonies. On March 20, 2018, the Honorable Darrell G. Shepherd, District Judge, sentenced him to twenty years imprisonment, in accordance with the jury’s recommendation. This appeal followed. Appellant raises two propositions of error in support of his appeal:

PROPOSITION I. THE TRIAL COURT ERRED IN FAILING TO REQUIRE THE PROSECUTION TO ELECT BETWEEN ACTS.

PROPOSITION II. By FAILING TO REQUIRE THE PROSECUTION TO ELECT BETWEEN ACTS, COUNSEL FAILED TO DELIVER THE EFFECTIVE ASSISTANCE OF COUNSEL REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTION 20 OF THE OKLAHOMA CONSTITUTION.

After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was convicted of harassing his estranged girlfriend over a period of several months, in violation of a victim’s protective order. As to Proposition I, the crime of Stalking requires the State to prove that the defendant repeatedly followed or harassed another person. 21 O.S.2011, § 1173 (A), (B); OUJI-CR (2nd) No. 4-30. Harass is defined for purposes of this statute as a pattern or course of conduct directed toward a person that would cause a reasonable person to suffer emotional distress and that actually causes emotional distress to the victim. 21 O.S.2011, § 1173(F)(1); OUJI-CR (2nd) No. 4-31. The State presented evidence that Appellant repeatedly called the victim, left threatening messages and voice mails for her, and vandalized her property. Appellant claims that because the State was not required to specify which acts it relied upon to constitute the alleged pattern or course of conduct, his jury could have disagreed on which discrete acts were proven, thereby compromising his constitutional right to a unanimous verdict. He did not raise this issue below, so our review is only for plain error.¹

Plain errors are those errors which are obvious in the record and affect the substantial rights of the defendant – that is, the error affects the outcome of the proceeding. We find no error, plain or otherwise. The constitutional right to a unanimous verdict refers to the ultimate finding of guilt, not to the means by which an element of the crime may be satisfied. Appellant was not denied his right to juror unanimity. Proposition I is denied.

In Proposition II, Appellant claims trial counsel was constitutionally deficient, for failing to demand that the State elect which acts it relied upon to constitute the pattern or course of conduct required to establish the offense. Appellant must demonstrate that counsel made a professionally unreasonable decision, and that the decision undermines confidence in the outcome of the trial. For reasons explained in Proposition I, the State was not required to elect among the many times Appellant harassed his victim. Because any demand for election would have properly been denied, Appellant cannot show any prejudice from trial counsel’s omission; and absent prejudice, Appellant cannot establish that counsel was deficient. Proposition II is denied.

DECISION

The Judgment and Sentence of the District Court of Wagoner County is AFFIRMED. 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 delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. ¹ Thompson v. State, 2018 OK CR 32, 9 7, 429 P.3d 1
2. ² Daniels v. State, 2016 OK CR 2, "I 3, 369 P.3d 381, 383.
3. ³ Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Bland v. State, 2000 OK CR 11, I 112, 4 P.3d 702, 730.
4. 4 Cruse U. State, 2003 OK CR 8, I 11, 67 P.3d 920, 923.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1173(B)(1) - Stalking
• Okla. Stat. tit. 21 § 1173(A) - Stalking
• Okla. Stat. tit. 21 § 1173(F)(1) - Stalking

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Thompson v. State, 2018 OK CR 32, 429 P.3d 1
• Daniels v. State, 2016 OK CR 2, 369 P.3d 381
• Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491
• Gilson v. State, 2000 OK CR 14, 8 P.3d 883
• Blackwell v. State, 1983 OK CR 51, 663 P.2d 12
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
• Bland v. State, 2000 OK CR 11, 4 P.3d 702
• Cruse v. State, 2003 OK CR 8, 67 P.3d 920