Willard Dean Jackson v The State of Oklahoma

F-2005-1285

Filed: Nov. 5, 2007

Not for publication

Prevailing Party: Willard Dean Jackson

Summary

Willard Dean Jackson appealed his conviction for making a lewd or indecent proposal to a child under sixteen. The original conviction and sentence was life imprisonment without parole. Judge Chapel dissented. In this case, Jackson talked on the phone with a 15-year-old girl named L.P. over several weeks. During their conversations, Jackson suggested taking nude photos of her and asked her to touch herself while he listened. L.P. told her mom about these talks, and the police got involved. They found that Jackson was the only black male worker at the company where the calls were made, and he had used the name “Catman.” The court found that Jackson didn’t actually propose any sexual acts with L.P., which is necessary for the charges against him. They decided to reverse his conviction for the lewd proposal because they believed the evidence didn’t meet the legal requirements. However, they mentioned that Jackson could be guilty of a related crime of soliciting a minor for child pornography. They sent the case back to court to change his conviction and to decide on a new sentence. The judges agreed on most decisions, but there were dissenting opinions about whether it was fair to change the charge to one that was never considered in Jackson’s original trial.

Decision

The conviction is hereby REVERSED and REMANDED with instructions that the District Court enter judgment of conviction against Appellant for solicitation of a minor for child pornography, in violation of 21 O.S.Supp.2002, § 1021(B), and conduct a re-sentencing proceeding before a jury, unless waived by Appellant, to determine the sentence. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to prove the elements of making a lewd or indecent proposal to a child under sixteen?
• Did the court err in interpreting the definition of "sexual relations" in relation to the charge?
• Was the appellant's conviction for soliciting a minor for child pornography appropriate given the evidence presented?
• Did the court follow due process when modifying the appellant's conviction to a lesser included offense?
• Was the appellant adequately notified of the allegations against him regarding solicitation of a minor for child pornography?
• Should the sentencing for the modified conviction be determined by a jury?

Findings

• The State failed to prove the elements of making lewd or indecent proposals to a child under sixteen.
• The conviction for making a lewd or indecent proposal to a child under sixteen is reversed.
• The case is remanded to the District Court with directions to enter a judgment of conviction against Appellant for soliciting a minor for child pornography in violation of 21 O.S.Supp.2002, § 1021(B).
• The District Court shall conduct a re-sentencing proceeding before a jury, unless waived by Appellant.
• Appellant's challenges in Propositions Two and Three related to the admission of other crimes evidence at trial are moot.

F-2005-1285

Nov. 5, 2007

Willard Dean Jackson

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE, JUDGE: Willard Dean Jackson, Appellant, was tried by jury in the District Court of Oklahoma County, Case Number F-2002-5822, and convicted of lewd or indecent proposal to a child under sixteen (16), after former conviction of two (2) or more felonies, in violation of 21 O.S.Supp.2002, § 1123. The jury sentenced Appellant to life imprisonment without parole. The District Court, Honorable Barbara G. Swinton, imposed judgment and sentence accordingly. Mr. Jackson appeals.

This unusual case began in mid-2002, when an unknown male caller dialed a wrong number and contacted L.P., a fifteen year old female. In a series of phone conversations over several weeks, L.P. came to know the caller, and despite the fact that L.P. revealed how old she was, their conversations became increasingly sexual. The caller told L.P. he was six feet to six feet, one inch tall; twenty three years old; light-skinned black; green eyes; curly black hair; married to an African American; worked at a Shawnee phone company; his name was Mike; and he went by the name of Catman at clubs and Catman 4545 on the internet. Mike told L.P. he was a player who frequented clubs and liked white women.

The charge in the instant case arose from two specific topics of discussion between Mike and L.P. First, he told L.P. he could take nude photos of her and that she could make between $4,000 to $6,000 for them. L.P. said she wasn’t interested and Mike changed the subject. It appears Mike only raised this possibility one time. The more frequent subject of conversation was masturbation. Mike asked L.P. if she ever touched herself, and described how he would jack off. He asked L.P. to finger herself while he listened and masturbated. L.P. refused these overtures.¹

L.P.’s mother eventually learned of these conversations and informed police. Investigators traced a call from Mike to a break room pay phone of an axle factory in Shawnee, Oklahoma. The call had been placed during the company’s 3:30 to midnight shift, on the 5:20 dinner break, when about 15-20 hourly employees were working. Appellant was the only black male hourly employee working in the building at that particular time. Appellant admitted to investigators that he sometimes went by the name of Catman. However, a co-worker testified that L.P.’s computer screen name and phone number were written on a bathroom wall, visible to all employees. There were also instructions to go to a certain website and to enter the name Catman.

The State also alleged initially that Appellant violated the statute by proposing that L.P. have sexual relations with another girl while he watched and masturbated. This allegation was stricken after preliminary hearing.

In Proposition One, Appellant claims his conviction must be reversed because the State failed to prove the elements of making lewd or indecent proposals to a child under sixteen in violation of 21 O.S.Supp.2002, § 1123. We agree. The five sub-paragraphs in paragraph (A) of section 1123 define various ways to commit the crime of making lewd or indecent proposals to a child under sixteen.² The relevant uniform instruction, OUJI-CR(2d) 4-129, also lists these various ways of violating the statute. Appellant’s jury was instructed, pursuant to section 1123(A)(1), that the State must prove: (1) the defendant, who was at least three years older than the victim; (2) knowingly and intentionally; (3) made an oral lewd³ or indecent proposal; (4) to a child under sixteen years of age; (5) for the child to have unlawful sexual relations or intercourse with any person.

Viewing the trial evidence and inferences in the light most favorable to the State, Appellant lewdly proposed to L.P. that she permit him to take nude photos of her (or take them herself and provide the photos to him), and asked L.P. to finger herself while he listened over the phone and masturbated. The evidence fails to show that Appellant ever proposed that L.P. engage in unlawful sexual relations or intercourse with any person.³ Appellant’s specific acts—though lecherous and depraved—do not violate the provisions of section 1123. His conviction for this crime cannot stand. In past cases where the State’s proof fails to establish an essential element of the charged offense, but the evidence discloses conduct that is clearly criminal, this Court has frequently exercised the power to direct a judgment of conviction entered against the defendant for the crime shown by the facts.

The facts proved at trial make out a violation of 21 O.S.Supp.2002, § 1021(B), by which it is a felony to willfully solicit a minor to perform or prepare any obscene material or child pornography, punishable as a first offense by imprisonment for ten (10) years to thirty (30) years. From the specific allegations of the information, we find that Appellant was plainly on notice of the accusation that he lewdly solicited a child to engage in pornography by asking L.P. to be photographed nude or provide him with nude photographs; that he had a fair opportunity to defend himself against the substance of that accusation at trial; and that he is guilty of the crime of soliciting a minor for child pornography beyond a reasonable doubt.

The conviction for making a lewd or indecent proposal to a child under sixteen is REVERSED, and this case is REMANDED to the District Court with directions to enter a judgment of conviction against Appellant for soliciting a minor for child pornography in violation of 21 O.S.Supp.2002, § 1021(B). The District Court shall conduct a re-sentencing proceeding before a jury, unless waived by Appellant, to determine the proper sentence.⁷ Because we vacate the jury’s verdict and remand for entry of a modified judgment against Appellant for violating section 1021(B), Appellant’s challenges in Propositions Two and Three to the admission of other crimes evidence at trial are moot.

DECISION

The conviction is hereby REVERSED and REMANDED with instructions that the District Court enter judgment of conviction against Appellant for solicitation of a minor for child pornography, in violation of 21 O.S.Supp.2002, § 1021(B), and conduct a re-sentencing proceeding before a jury, unless waived by Appellant, to determine the sentence. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. In a series of phone conversations over several weeks, L.P. came to know the caller, and despite the fact that L.P. revealed how old she was, their conversations became increasingly sexual.
2. The State also alleged initially that Appellant violated the statute by proposing that L.P. have "sexual relations" with another girl while he watched and masturbated. This allegation was stricken after preliminary hearing.
3. The relevant uniform instruction, OUJI-CR(2d) 4-129, also lists these various ways of violating the statute.
4. The instructions defined lewd as conduct which is lustful and evinces an eagerness for sinful indulgence.
5. The State argues for an expansive definition of the term "sexual relations" to support the conviction in this case. However, that definition would include virtually any sexual act proscribed by the law in regard to minors. We find such an interpretation is overbroad and is inconsistent with the plain meaning of the term "sexual relations," which in both the law and the "real world" simply means acts of intercourse, including oral and anal sex.
6. This presents no difficulty as a matter of due process because the Appellant is deemed to have notice that he may be convicted of the charged crime or any lesser-included or lesser-related offense.
7. In the interests of justice, we follow the same course here.
8. With his two prior convictions, life without parole was mandatory upon Appellant's conviction under section 1123.
9. A modification to a lesser included or closely related offense does not violate a defendant's right to due process because he is deemed to be on notice of lesser offenses whether pled by the State or not, and because the finder of fact had the opportunity to consider and determine the essential elements of the lesser offense.
10. The majority opinion appears to rely on 22 O.S.2001, § 1067 to authorize its modification here. That statutory construction is questionable. More important, the constitutional analysis remains the same.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2002) - Lewd or indecent proposals to a child under sixteen
• Okla. Stat. tit. 21 § 1021(B) (2002) - Solicitation of a minor to perform or prepare obscene material or child pornography
• Okla. Stat. tit. 22 § 1066 (2001) - Modifying convictions
• Okla. Stat. tit. 22 § 1067 (2001) - Directing judgments of conviction

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:

• Dill v. State, 2005 OK CR 20, 122 P.3d 866
• Lebo v. State, 1928 OK CR 180, 40 Okl.Cr. 116, 267 P. 288
• Kirkpatrick v. State, 1942 OK CR 104, 75 Okl.Cr. 28, 128 P.2d 246
• Yeager v. State, 1946 OK CR 57, 82 Okl.Cr. 326, 169 P.2d 579
• Vandiver v. State, 1953 OK CR 130, 97 Okl.Cr. 217, 261 P.2d 617
• Woolridge v. State, 1953 OK CR 153, 97 Okl.Cr. 326, 263 P.2d 196
• Cox v. State, 1961 OK CR 46, 361 P.2d 506
• Jones v. State, 1976 OK CR 238, 555 P.2d 63