Isaac Avila v The State Of Oklahoma

F-2017-1285

Filed: May 2, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Isaac Avila appealed his conviction for kidnapping and other charges. His conviction and sentence included five years for one count of kidnapping, fifteen years for three counts of kidnapping his own children, five years for possession of a firearm during a felony, and a fine for resisting an officer. Judge G. Brent Russell was in charge of the case. The court decided that Mr. Avila's actions were not allowed by law, meaning his convictions were valid, and he had enough evidence against him for each charge. The judges agreed that even though he felt he had the rights of a parent, his actions were still against the law. Mr. Avila's claims of having a good defense were also denied because his lawyers did not make mistakes that hurt his case. Lastly, the judges said that his sentence was not too harsh given the seriousness of his actions. The opinion was that the judgment and sentence were affirmed. There was one judge, John D. Hadden, who dissented.

Decision

The judgment and sentence 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 Mr. Avila's conviction for kidnapping of his own children contrary to the law?
• Was Mr. Avila's conviction for kidnapping of his own children contrary to the evidence?
• Was the evidence sufficient to sustain the verdict of the jury regarding the charge of kidnapping of his estranged wife?
• Was the evidence sufficient for the conviction of possession of a firearm during the commission of a felony?
• Did the trial court err by not instructing the jury on the affirmative defense of consent?
• Did ineffective assistance of counsel deny Mr. Avila due process and a fundamentally fair trial?
• Was Mr. Avila's sentence excessive and should it be modified?

Findings

• the court erred
• the evidence was sufficient
• the evidence was sufficient
• the evidence was sufficient
• the court erred
• the court erred
• the sentence is not excessive

F-2017-1285

May 2, 2019

Isaac Avila

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Isaac Avila, Appellant, was tried by jury and found guilty of Counts 1 through 4, kidnapping, in violation of 21 O.S.Supp.2012, § 741; Count 5, possession of a firearm during the commission of a felony, in violation of 21 O.S.Supp.2012, § 1287; and Count 6, resisting an officer, in violation of 21 O.S.2011, § 268, in the District Court of Stephens County, Case No. CF-2016-457. The jury sentenced him to five (5) years imprisonment on Count 1, fifteen (15) years imprisonment on each of Counts 2 through 4, five (5) years imprisonment on Count 5, and a $100.00 fine on Count 6. The Honorable G. Brent Russell, Associate District Judge, pronounced judgment and ordered the sentences on Counts 1 and 5 to run concurrently to one another, but consecutively to Counts 2 through 4. Counts 2 through 4 were ordered to run consecutively to one another.

Mr. Avila appeals in the following propositions of error:
1. Mr. Avila’s convictions for the purported kidnapping of his own children, Counts 2, 3, and 4, must be reversed as they are contrary to the law;
2. Mr. Avila’s convictions for the purported kidnapping of his own children, Counts 2, 3, and 4, must be reversed as they are contrary to the evidence;
3. The evidence presented by the State was not sufficient to sustain the verdict of the jury with regard to the charge of kidnapping in Count 1 of the Information;
4. The State’s evidence was insufficient to convict Appellant of possession of a firearm during the commission of a felony;
5. Error occurred when the jury was not instructed with respect to the affirmative defense of consent;
6. Ineffective assistance of counsel denied Mr. Avila due process and his right to a fundamentally fair trial;
7. Appellant’s sentence is excessive and should be modified.

Appellant argues in Proposition One that his convictions for kidnapping his own children (Counts 2, 3, and 4) infringe his constitutionally protected rights as a custodial parent and must be reversed. He argues in Proposition Two that these convictions must be reversed for insufficient evidence. In Proposition Three, he argues that the evidence is also insufficient to support his conviction in Count 1 for kidnapping his estranged wife. In Proposition Four, he challenges the sufficiency of the evidence to convict him of possessing a firearm in the commission of kidnapping.

As pertinent here, a person commits the crime of kidnapping when he or she, without lawful authority, seizes or confines another with intent to cause such person to be confined against the will of the other person. 21 O.S.2011, § 741. In Counts 1 through 4, the State charged, and the jury found Appellant guilty of, forcibly seizing and confining the victims without lawful authority and with the intent to cause [them] to be confined/imprisoned against [their] will. We find from the evidence that Appellant’s actions exceeded any constitutionally protected authority to restrain his children that he possessed as a custodial parent. In re S.B.C., et al, 2002 OK 83, 64 P.3d 1080 (2002) (recognizing constitutionally protected liberty interest of a parent in the management of children). The convictions in Counts 2-4 do not infringe Appellant’s due process rights. Reviewing his claims in Propositions Two, Three, and Four, we take the evidence in the light most favorable to the State to determine whether any rational trier of fact could find the elements of kidnapping, and possessing a firearm in the commission of kidnapping, beyond a reasonable doubt. Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. The evidence is sufficient. Propositions Two, Three, and Four are denied.

In Proposition Five Appellant argues that the trial court’s failure to instruct the jury on the defense of consent requires reversal. In Proposition Six, he argues that counsel’s failure to request instruction on the defense of consent denied him the effective assistance of counsel. Counsel clearly failed to object to the court’s instructions or request instructions on this defense at trial, waiving all but plain error. Appellant must therefore show that a plain or obvious error affected the outcome of the proceeding. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. The Court will correct plain error only where it seriously affects the fairness, integrity, or public reputation of the proceeding. Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 690, 701. We review his related claim of ineffective counsel under Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requiring that Appellant show not only that counsel performed deficiently, but that Appellant was prejudiced by it. Id., 466 U.S. at 687, 104 S.Ct. at 2064. We find the trial court’s instructions were not plainly or obviously in error, and any error in failing to further instruct on consent did not seriously affect the fairness, integrity, or public reputation of the proceedings. Applying the Strickland standard to Appellant’s related Sixth Amendment claim, Appellant cannot show either unreasonably deficient performance by counsel or prejudice to his defense from the failure to request these instructions. Propositions Five and Six are denied.

Appellant argues in Proposition Seven that his sentences are excessive. This Court will not disturb any sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Pullen U. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928. Appellant’s sentences are supported by the violent and dangerous nature of his actions against vulnerable family members. No relief is warranted.

DECISION
The judgment and sentence 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.

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Footnotes:

1. 21 O.S.Supp.2012, § 741
2. 21 O.S.Supp.2012, § 1287
3. 21 O.S.2011, § 268
4. 21 O.S.2011, § 741
5. In re S.B.C., et al, 2002 OK 83, 64 P.3d 1080 (2002)
6. Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
7. Hogan U. State, 2006 OK CR 19, "I 38, 139 P.3d 907, 923
8. Simpson v. State, 1994 OK CR 40, "I 30, 876 P.2d 690, 701
9. Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
10. Pullen U. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 741 - Kidnapping
• Okla. Stat. tit. 21 § 1287 - Possession of a firearm during the commission of a felony
• Okla. Stat. tit. 21 § 268 - Resisting an officer

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:

• In re S.B.C., et al, 2002 OK 83, 64 P.3d 1080
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Hogan v. State, 2006 OK CR 19, "I 38, 139 P.3d 907, 923
• Simpson v. State, 1994 OK CR 40, "I 30, 876 P.2d 690, 701
• Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928