The State Of Oklahoma v Stephen Lee Terry

SR-2003-276

Filed: Mar. 30, 2004

Not for publication

Prevailing Party: Stephen Lee Terry

Summary

Stephen Lee Terry appealed his conviction for Indecent or Lewd Acts with a Child Under Sixteen. The conviction and sentence were dismissed by the trial court. The court found that, although Terry's actions of videotaping clothed young girls were inappropriate, they did not meet the legal definition of a crime under Oklahoma law. The judges agreed with the trial court's decision. Judge Lumpkin dissented.

Decision

Stephen Lee Terry was charged with one count of Indecent or Lewd Acts with a Child Under Sixteen, 21 O.S.Supp. 1999, § 1123, in the District Court of Oklahoma County Case No. CF-2000-1727. Terry filed a motion to quash and dismiss the Information alleging, generally, that his acts did not constitute a crime under § 1123. The Honorable Virgil C. Black, District Judge, at a pre-trial hearing, ruled in favor of Terry and ordered that the Information be dismissed. The State, taking exception to the Trial Court's ruling, announced its intent to appeal the ruling pursuant to 22 O.S. 1991, §§ 1053 (1) & (4). The State's proposition is that the trial court erred in ruling that defendant's acts did not constitute a crime under Section 1123, and consequently dismissing the Information. The State claims that the trial court erred in relying on an unpublished opinion wherein this Court stated that these types of crimes should be reviewed on a case by case basis. In appeals prosecuted pursuant to 22 O.S. 1991, § 1053, this Court reviews the trial court's decision to determine if the trial court abused its discretion. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. We find that the trial court did not abuse its discretion in granting the motion to quash and dismiss in this case. The facts are that Appellee was caught secretly video taping young girls, between the ages of eight and twelve years old, at Celebration Station in Oklahoma City. He admitted that he watched the video tapes for sexual gratification. The video tape contained only images of fully clothed girls. The tape was preserved for this Court's review. The elements necessary to prove Appellant guilty of violating 21 O.S.Supp. 1999, § 1123 are: (1) the defendant was at least three years older than the victim; (2) who knowingly and intentionally; (3) looked upon, touched, mauled or felt; (4) the body or private parts; (5) of any child under sixteen years of age; and (6) in a lewd or lascivious manner. In this case the issue is whether element number four is present. To be criminal under § 1123 a defendant must have looked upon the child's body or private parts. We believe the pairing of the word "body" with the term "private parts" indicates the legislature intended something more than the act of filming clothed girls in a public location. Even though Appellee may have had lascivious intent and his actions may offend common decency, the actions are not a crime under this statute. We, therefore, AFFIRM the decision of the trial court in this case.

Issues

• was there an error in the trial court's ruling that the defendant's acts did not constitute a crime under § 1123?
• did the trial court abuse its discretion in granting the motion to quash and dismiss the Information?
• whether the defendant's actions met the statutory requirement of looking upon the child's body or private parts?
• was the defendant's intent to achieve sexual gratification sufficient to constitute a violation of § 1123?
• did the trial court err in relying on an unpublished opinion in its decision?

Findings

• The court did not err in granting the motion to quash and dismiss the Information.
• The evidence was not sufficient to establish that the defendant's actions constituted a crime under 21 O.S.Supp. 1999, § 1123.

SR-2003-276

Mar. 30, 2004

The State Of Oklahoma

Appellant

v

Stephen Lee Terry

Appellee

SUMMARY OPINION

MISHAEL S. RICHIE LILE, VICE PRESIDING JUDGE:

Stephen Lee Terry was charged with one count of Indecent or Lewd Acts with a Child Under Sixteen, 21 O.S.Supp. 1999, § 1123, in the District Court of Oklahoma County Case No. CF-2000-1727. Terry filed a motion to quash and dismiss the Information alleging, generally, that his acts did not constitute a crime under § 1123. The Honorable Virgil C. Black, District Judge, at a pre-trial hearing, ruled in favor of Terry and ordered that the Information be dismissed. The State, taking exception to the Trial Court’s ruling, announced its intent to appeal the ruling pursuant to 22 O.S. 1991, §§ 1053 (1) & (4). The State’s proposition is that the trial court erred in ruling that defendant’s acts did not constitute a crime under Section 1123, and consequently dismissing the Information. The State claims that the trial court erred in relying on an unpublished opinion wherein this Court stated that these types of crimes should be reviewed on a case-by-case basis.1

In appeals prosecuted pursuant to 22 O.S. 1991, § 1053, this Court reviews the trial court’s decision to determine if the trial court abused its discretion. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. State v. Love, 1998 OK CR 32, 960 P.2d 368, 369 [internal citations omitted]. We find that the trial court did not abuse its discretion in granting the motion to quash and dismiss in this case. The facts are that Appellee was caught secretly video taping young girls, between the ages of eight and twelve years old, at Celebration Station in Oklahoma City. He admitted that he watched the video tapes for sexual gratification. The video tape contained only images of fully clothed girls. The tape was preserved for this Court’s review. The elements necessary to prove Appellant guilty of violating 21 O.S.Supp. 1999, § 1123 are: (1) the defendant was at least three years older than the victim; (2) who knowingly and intentionally; (3) looked upon, touched, mauled or felt; (4) the body or private parts; (5) of any child under sixteen years of age; and (6) in a lewd or lascivious manner. In this case the issue is whether element number four is present.

To be criminal under § 1123 a defendant must have looked upon the child’s body or private parts. We believe the pairing of the word body with the term private parts indicates the legislature intended something more than the act of filming clothed girls in a public location. Even though Appellee may have had lascivious intent and his actions may offend common decency, the actions are not a crime under this statute. We, therefore, AFFIRM the decision of the trial court in this case.

ATTORNEYS AT DISTRICT COURT

CATHERINE M. BURTON
BURTON & GOODMAN, PLLC
500 N. WALKER, SUITE B
OKLAHOMA CITY, OK 73102

ATTORNEYS ON APPEAL

SARAH McAMIS
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR AVE.
SUITE 505
OKLAHOMA CITY, OK 73102

JOHN W. COYLE, III
COYLE LAW FIRM
119 NORTH ROBINSON, SUITE 320
OKLAHOMA CITY, OK 73102

CATHERINE M. BURTON
ATTORNEY FOR THE STATE
BURTON & GOODMAN, PLLC
500 N. WALKER, SUITE B
OKLAHOMA CITY, OK 73102

OPINION BY: LILE, V.P.J.

JOHNSON, P.J.: CONCURS

LUMPKIN, J.: CONCURS

CHAPEL, J.: CONCURS

STRUBHAR, J.: CONCURS

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Footnotes:

1. 21 O.S.Supp. 1999, § 1123
2. 22 O.S. 1991, §§ 1053 (1) & (4)
3. State U. Love, 1998 OK CR 32, 960 P.2d 368
4. Unpublished opinion Robinson V. State, Court of Criminal Appeals Case No. F-98-724

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (1999) - Indecent or Lewd Acts with a Child Under Sixteen
• Okla. Stat. tit. 22 § 1053 (1991) - Appeal from Dismissal or Quashing of Information

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:

• State v. Love, 1998 OK CR 32, 960 P.2d 368, 369
• Robinson v. State, Court of Criminal Appeals Case No. F-98-724