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F-2007-575

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Jeffrey Marler v The State of Oklahoma

F-2007-575

Filed: Sep. 25, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jeffrey Marler appealed his conviction for three counts of Sexual Abuse of a Minor and one count of Possession of Child Pornography. The conviction and sentence were for a total of twenty-five years for the sexual abuse counts and ten years for the child pornography count, to be served one after the other. Judge Chapel dissented, wanting the sentences for the sexual abuse counts to run at the same time instead.

Decision

The Judgment on Count 5, Possession of Child Pornography, is MODIFIED to reflect a conviction under 21 O.S.2001, § 1024.2, and the sentence thereon is MODIFIED to five years imprisonment. The fines imposed on all counts are hereby VACATED. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an error in admitting evidence of uncharged sexual abuse?
  • Did the trial court fail to comply with 22 O.S. § 894 and improperly instruct the jury during deliberations?
  • Was Appellant's sentence for Possession of Child Pornography in excess of the maximum term provided by law?
  • Did the trial court err in sustaining the State's objections to questions regarding consent?
  • Did Appellant receive ineffective assistance of counsel?
  • Should the trial court have responded to the jury's question about consecutive and concurrent service of sentences?
  • Did the trial court err by assessing fines when the jury did not?
  • Does cumulative error require reversal or modification?

Findings

  • The court did not err in admitting evidence of uncharged sexual abuse.
  • The trial court's actions related to jury instructions were harmless beyond a reasonable doubt.
  • The sentence for Possession of Child Pornography was modified to reflect a conviction under the more specific statute with a reduced sentence.
  • The trial court did not err in sustaining objections to questions regarding consent.
  • Appellant did not receive ineffective assistance of counsel.
  • The trial court's response to the jury's question about sentence service was proper.
  • The trial court erred in imposing fines that were not recommended by the jury.
  • No cumulative error was found that would require reversal or modification.

F-2007-575

Sep. 25, 2008

Jeffrey Marler

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, VICE-PRESIDING JUDGE: Appellant, Jeffrey Marler, was convicted by a jury in Tulsa County District Court, Case No. CF-2006-3255, of three counts of Sexual Abuse of a Minor (10 O.S. § 7115) and one count of Possession of Child Pornography (21 O.S.Supp.2003, § 1021.2). On June 4, 2007, the Honorable Clancy Smith, District Judge, sentenced Appellant in accordance with the jury’s recommendation to twenty-five years imprisonment on each of the sexual abuse counts, and to ten years imprisonment on the child pornography count, and ordered that the sentences be served consecutively. The trial court also imposed $500 fines on each count. This appeal followed.

Appellant raises the following propositions of error:

1. The trial court erred in admitting evidence of uncharged sexual abuse.
2. The trial court erred by failing to comply with 22 O.S. § 894 and by inappropriately instructing the jury during deliberations.
3. Appellant’s sentence for Possession of Child Pornography is in excess of the maximum term provided by law.
4. The trial court erred in sustaining the State’s objections to questions regarding consent.
5. Appellant received ineffective assistance of counsel.
6. The trial court should have responded to the jury’s question about consecutive and concurrent service of sentences.
7. The trial court erred by assessing fines when the jury did not.
8. Cumulative error requires reversal or modification.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we find it necessary to modify the sentence on Count 5, vacate the fines imposed on all counts, and otherwise affirm.

As to Proposition 1, evidence of other, uncharged acts of sexual abuse, committed by a defendant against the same child complainant, is admissible when it tends to show a pattern of psychological domination and grooming for further abuse. 12 O.S.2001, § 2404(B); Little v. State, 1986 OK CR 132, 1 5, 725 P.2d 606, 607; Huddleston v. State, 1985 OK CR 12, 1 17, 695 P.2d 8, 11. The trial court did not abuse its discretion in admitting evidence that, for several years before the acts charged in the Information, Appellant had been inappropriately touching his step-daughter and threatening harm if she resisted or disclosed the abuse. Proposition 1 is denied.

As to Proposition 2, the record does not reflect whether the trial court followed 22 O.S.2001, § 894 when the jury submitted a written question during deliberations. However, given that the court’s written answer to the question was appropriate under the circumstances, we find any assumed deviation from § 894 was harmless beyond a reasonable doubt. Harris v. State, 2007 OK CR 28, 11 8-11, 164 P.3d 1103, 1109-1110. Nor did the trial court err in failing to give a deadlocked jury instruction sua sponte under these circumstances. The record does not indicate how long the jury had deliberated before the note was sent, and the question asked did not necessarily indicate an impasse in deliberations. Proposition 2 is denied.

As to Proposition 3, although Appellant was convicted and sentenced for possessing child pornography under 21 O.S. § 1021.2, the same conduct is punished less harshly under 21 O.S. § 1024.2. We conclude that the more specific provision (§ 1024.2) controls over the more general one, and therefore MODIFY Appellant’s Judgment on Count V to reflect a conviction under 21 O.S. § 1024.2, and MODIFY the sentence to five years imprisonment. 22 O.S.2001, § 1066; McWilliams v. State, 1989 OK CR 39, 1 10, 777 P.2d 1370, 1372.

As to Proposition 4, Appellant concedes that consent is not a defense to any of the charges, but claims he was prejudiced when the trial court sustained the State’s objections to the use of that term in the defense’s cross-examination of the complainant and elsewhere. While counsel was admonished not to use the term consent, the court freely allowed counsel to cross-examine the complainant about the same subjects as they pertained to her credibility – e.g., the fact that she did not actively resist Appellant’s advances in every instance, and the fact that she did not report the abuse for many years. Defense counsel touched on these issues again several times in closing argument. The evidence Appellant complains about was, in fact, presented to the jury for whatever value it might have had. Consequently, Appellant’s assignment of error is meritless. Proposition 4 is denied.

As to Proposition 5, trial counsel was not ineffective for eliciting testimony that Appellant had allegedly committed more acts of abuse than those charged in the Information. The defense strategy was to show inconsistencies in the complainant’s accounts, thereby impeaching her credibility. This was a reasonable strategy under the circumstances. Pierce v. State, 1990 OK CR 7, 1 45, 786 P.2d 1255, 1267. Counsel’s failure to request a contemporaneous limiting instruction on the use of other crimes evidence elicited by the State did not affect the outcome of the trial. Cheney v. State, 1995 OK CR 72, I 69, 909 P.2d 74, 91. Finally, because the complainant identified herself on the sexually explicit videotape, defense counsel had little choice but to admit its obscene nature; read in context, this was not an outright concession of guilt. Lott v. State, 2004 OK CR 27, 1 51, 98 P.3d 318, 337. Trial counsel was not ineffective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proposition 5 is denied.

As to Proposition 6, the trial court’s answer to the jury’s question about service of sentences was entirely proper. Therefore, Appellant can show no prejudice from the court’s failure to deliver the answer in open court, pursuant to 22 O.S.2001, § 894. Baker v. State, 1998 OK CR 46, I 7, 966 P.2d 797, 798. Proposition 6 is denied.

As to Proposition 7, the State concedes that the trial court erred in imposing fines after the jury had been instructed on this option but declined to do so. We agree, and VACATE the fines imposed on all counts. 22 O.S.2001, § 926.1.

As to Proposition 8, the errors requiring relief have been remedied, and because no other errors have been identified, there is no cumulative error. Bell v. State, 2007 OK CR 43, 1 14, 172 P.3d 622, 627. Proposition 8 is denied.

DECISION

The Judgment on Count 5, Possession of Child Pornography, is MODIFIED to reflect a conviction under 21 O.S.2001, § 1024.2, and the sentence thereon is MODIFIED to five years imprisonment. The fines imposed on all counts are hereby VACATED. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. 10 O.S. § 7115
  2. 21 O.S.Supp.2003, § 1021.2
  3. 12 O.S.2001, § 2404(B)
  4. Harris v. State, 2007 OK CR 28, 11 8-11, 164 P.3d 1103, 1109-1110
  5. 21 O.S. § 1021.2
  6. 21 O.S. § 1024.2
  7. 22 O.S.2001, § 1066
  8. McWilliams v. State, 1989 OK CR 39, 1 10, 777 P.2d 1370, 1372
  9. 22 O.S.2001, § 894
  10. Baker v. State, 1998 OK CR 46, I 7, 966 P.2d 797, 798
  11. 22 O.S.2001, § 926.1
  12. Bell v. State, 2007 OK CR 43, 1 14, 172 P.3d 622, 627
  13. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
  14. Pierce v. State, 1990 OK CR 7, 1 45, 786 P.2d 1255, 1267
  15. Cheney v. State, 1995 OK CR 72, I 69, 909 P.2d 74, 91
  16. Lott v. State, 2004 OK CR 27, 1 51, 98 P.3d 318, 337

Oklahoma Statutes citations:

  • Okla. Stat. tit. 10 § 7115 - Sexual Abuse of a Minor
  • Okla. Stat. tit. 21 § 1021.2 - Possession of Child Pornography
  • Okla. Stat. tit. 22 § 894 - Jury Instructions
  • Okla. Stat. tit. 21 § 1024.2 - Possession of Child Pornography (Specific Provision)
  • Okla. Stat. tit. 22 § 1066 - Jury Instructions
  • Okla. Stat. tit. 22 § 926.1 - Fines

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:

  • Little v. State, 1986 OK CR 132, I 5, 725 P.2d 606, 607
  • Huddleston v. State, 1985 OK CR 12, I 17, 695 P.2d 8, 11
  • Harris v. State, 2007 OK CR 28, I 8-11, 164 P.3d 1103, 1109-1110
  • McWilliams v. State, 1989 OK CR 39, I 10, 777 P.2d 1370, 1372
  • Pierce v. State, 1990 OK CR 7, I 45, 786 P.2d 1255, 1267
  • Cheney v. State, 1995 OK CR 72, I 69, 909 P.2d 74, 91
  • Lott v. State, 2004 OK CR 27, I 51, 98 P.3d 318, 337
  • Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
  • Baker v. State, 1998 OK CR 46, I 7, 966 P.2d 797, 798
  • Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627

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