Donnie Joe Bacon v State Of Oklahoma

F-2001-1224

Filed: Jun. 29, 2004

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Donnie Joe Bacon appealed his conviction for Child Abuse. His conviction was for two counts with sentences of 25 years and 47 years, which were ordered to run one after the other. Judge Chapel dissented, wanting to change the decision to start over with a new trial.

Decision

We find with regard to Appellant's first proposition that the pretrial order was violated when Detective Dexter testified about the finding of the medical examiner. While the reference to the medical examiner's involvement was clearly error, in light of the evidence presented supporting Appellant's guilt of the crimes charged, we find, beyond a reasonable doubt, that the admission of the improper evidence did not contribute to the verdict of guilt. However, we cannot find beyond a reasonable doubt that it did not contribute to the sentence imposed. This error, along with error discussed in the following propositions, requires Appellant's sentences be modified. Appellant's second proposition also requires relief. Much of the evidence of other crimes about which Appellant complains was indeed inadmissible as this evidence, showing that Appellant physically abused children of both genders and of various ages as well as adults of both genders both in his family and outside of it in a variety of ways over a period of approximately seventeen years neither fell within any of the established exceptions to the rule prohibiting the admission of other crimes evidence nor was relevant to any other legitimate issue. 12 D.S.1991, § 2404(B). See also Burks v. State, 594 P.2d 771, 774-75 (Okl.Cr. 1979), overruled in part on other grounds by Jones v. State, 772 P.2d 922 (Okl.Cr.1989). Further, even if this Court were to accept the State's assertion that the other crimes evidence was relevant, this evidence, admitted in the magnitude in which it was, would not all have been admissible as its probative value was far outweighed by its prejudicial impact. 12 O.S.2001, § 2403. However, in light of the evidence properly admitted relating to the crimes charged, we also find beyond a reasonable doubt, that the admission of the improper evidence did not contribute to the verdict of guilt. We cannot find beyond a reasonable doubt that it did not contribute to the sentence imposed. Thus, this error, along with error discussed in Proposition I, requires Appellant's sentences be modified. As to Appellant's third proposition, we find that the record from the evidentiary hearing supports the finding that there was compliance with the mandates of Dodd v. State, 993 P.2d 778, 784 (Okl.Cr.2000). Further, the record does not support the assertion that evidence favorable to the accused was suppressed by the State resulting in prejudice to the accused in violation of Brady. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). Regarding Proposition IV, we find that most of the alleged defects in defense counsel's representation related to the other crimes evidence introduced at trial. As to these alleged defects, we find that any resulting prejudice did not affect the jury's determination of guilt but may have affected the sentencing decision and this prejudice is remedied by this Court's modification of the sentence. The alleged defects which may have affected issues relating to guilt or innocence were not so prejudicial as to undermine the verdict of guilt. Humphreys v. State, 947 P.2d 565, 577-78 (Okl.Cr.1997). See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Further, a review of the record for plain error reveals none requiring reversal of Appellant's conviction. Finally, we find no prosecutorial misconduct or cumulative error requiring reversal of Appellant's conviction. Bland v. State, 4 P.3d 702, 727 (Okl.Cr.2000). The Judgment of the trial court is AFFIRMED and his Sentence is MODIFIED to twenty years imprisonment on each count with the counts to run consecutively.

Issues

• was there a violation of Appellant's fundamental right to a fair trial due to Detective Dexter Nelson's testimony about the medical examiner's findings?
• did the improper admission of other crime and bad act evidence violate Appellant's fundamental right to a fair trial?
• was there a failure by the prosecution to disclose key evidence or a failure of defense counsel to adequately investigate and present this evidence, violating Appellant's rights to Due Process and effective assistance of counsel?
• did inadmissible evidence and alleged ineffective assistance of counsel deny Appellant Due Process and a fair trial?
• did prosecutorial misconduct and cumulative trial errors require reversal of Appellant's conviction or modification of his sentence?

Findings

• the court erred regarding the violation of the pretrial order but did not affect the verdict of guilt
• the court erred in the admission of other crimes evidence, requiring modification of the sentence
• there was no suppression of favorable evidence by the State, so this claim was not supported
• defense counsel's alleged deficiencies did not undermine the verdict of guilt but may have impacted the sentencing, which was remedied by the court's modification of the sentence
• no prosecutorial misconduct or cumulative error requiring reversal of the conviction was found

F-2001-1224

Jun. 29, 2004

Donnie Joe Bacon

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Appellant, Donnie Joe Bacon, was convicted in the District Court of Oklahoma County of two counts of Child Abuse, After Former Conviction of Two or More Felonies, in Case No. CF-2000-5538. The jury trial was held before the Honorable Susan P. Caswell. The jury assessed punishment at twenty-five years imprisonment on one count and forty-seven years imprisonment on the other. The trial court sentenced Appellant accordingly, ordering the sentences to run consecutively.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Appellant’s Judgment and modify his Sentence. In reaching our decision, we considered the following propositions of error and determined this result to be required under the law and the evidence:

I. Detective Dexter Nelson’s violation of a pretrial order violated Appellant’s fundamental right to a fair trial under the Sixth and Fourteenth Amendments and Article II, §§ 7 and 20 of the Oklahoma Constitution.

II. The improper admission of other crime and bad act evidence violated Appellant’s fundamental right to a fair trial under the Sixth and Fourteenth Amendments, Article II, §§ 7 and 20 of the Oklahoma Constitution and 12 O.S.1991, §§ 2403 and 2404(B).

III. The prosecution’s failure to disclose or defense counsel’s failure to adequately investigate, request and use the January 20, 2000 and September 22, 2001 letters from Michael Adkins to the prosecution and Department of Human Services Referral Reports violated Appellant’s Sixth and Fourteenth Amendment rights to Due Process, to confrontation and to effective assistance and meaningful adversarial testing.

IV. Inadmissible evidence denied Appellant Due Process and a fair trial and was plain reversible error. Alternatively, Appellant was denied effective assistance of counsel. Overall, trial counsel failed to effectively advocate his client’s cause and subject the prosecution’s evidence to the crucible of meaningful adversarial testing.

V. Prosecutorial misconduct and trial errors, cumulatively, denied Appellant Due Process and require reversal or a sentence modification.

DECISION

We find with regard to Appellant’s first proposition that the pretrial order was violated when Detective Dexter testified about the finding of the medical examiner. While the reference to the medical examiner’s involvement was clearly error, in light of the evidence presented supporting Appellant’s guilt of the crimes charged, we find, beyond a reasonable doubt, that the admission of the improper evidence did not contribute to the verdict of guilt. However, we cannot find beyond a reasonable doubt that it did not contribute to the sentence imposed. This error, along with error discussed in the following propositions, requires Appellant’s sentences be modified.

Appellant’s second proposition also requires relief. Much of the evidence of other crimes about which Appellant complains was indeed inadmissible as this evidence, showing that Appellant physically abused children of both genders and of various ages as well as adults of both genders both in his family and outside of it in a variety of ways over a period of approximately seventeen years neither fell within any of the established exceptions to the rule prohibiting the admission of other crimes evidence nor was relevant to any other legitimate issue. 12 O.S.1991, § 2404(B). See also Burks v. State, 594 P.2d 771, 774-75 (Okl.Cr. 1979), overruled in part on other grounds by Jones v. State, 772 P.2d 922 (Okl.Cr.1989).

Further, even if this Court were to accept the State’s assertion that the other crimes evidence was relevant, this evidence, admitted in the magnitude in which it was, would not all have been admissible as its probative value was far outweighed by its prejudicial impact. 12 O.S.2001, § 2403. However, in light of the evidence properly admitted relating to the crimes charged, we also find beyond a reasonable doubt, that the admission of the improper evidence did not contribute to the verdict of guilt. We cannot find beyond a reasonable doubt that it did not contribute to the sentence imposed. Thus, this error, along with error discussed in Proposition I, requires Appellant’s sentences be modified.

As to Appellant’s third proposition, we find that the record from the evidentiary hearing supports the finding that there was compliance with the mandates of Dodd v. State, 993 P.2d 778, 784 (Okl.Cr.2000). Further, the record does not support the assertion that evidence favorable to the accused was suppressed by the State resulting in prejudice to the accused in violation of Brady. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

Regarding Proposition IV, we find that most of the alleged defects in defense counsel’s representation related to the other crimes evidence introduced at trial. As to these alleged defects, we find that any resulting prejudice did not affect the jury’s determination of guilt but may have affected the sentencing decision and this prejudice is remedied by this Court’s modification of the sentence. The alleged defects which may have affected issues relating to guilt or innocence were not so prejudicial as to undermine the verdict of guilt. Humphreys v. State, 947 P.2d 565, 577-78 (Okl.Cr.1997). See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Further, a review of the record for plain error reveals none requiring reversal of Appellant’s conviction.

Finally, we find no prosecutorial misconduct or cumulative error requiring reversal of Appellant’s conviction. Bland v. State, 4 P.3d 702, 727 (Okl.Cr.2000). The Judgment of the trial court is AFFIRMED and his Sentence is MODIFIED to twenty years imprisonment on each count with the counts to run consecutively.

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

KENT BRIDGE WENDELL B. SUTTON
EUGENIA BAUMANN 611 COUNTY OFFICE BLDG.
320 ROBERT S. KERR, SUITE 611
OKLAHOMA CITY, OKLAHOMA 73102
OKLAHOMA CITY, OKLAHOMA 73102
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLANT

W.A. DREW EDMONDSON LOU KEEL
ATTORNEY GENERAL OF OKLAHOMA AINSLIE STANFORD
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OKLAHOMA 73102
KELLYE BATES
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR THE STATE ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.

JOHNSON, P.J.: CONCUR

LILE, V.P.J.: DISSENT

LUMPKIN, J.: CONCUR

CHAPEL, J.: DISSENT

CHAPEL, JUDGE, DISSENTING: I would reverse and remand for a new trial.

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Footnotes:

1. 12 O.S.1991, §§ 2403 and 2404(B)
2. 12 O.S.1991, § 2404(B)
3. 12 O.S.2001, § 2403
4. Dodd v. State, 993 P.2d 778, 784 (Okl.Cr.2000)
5. Brady
6. Humphreys v. State, 947 P.2d 565, 577-78 (Okl.Cr.1997)
7. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
8. Bland v. State, 4 P.3d 702, 727 (Okl.Cr.2000)

Oklahoma Statutes citations:

• Okla. Stat. tit. 12 § 2403 (1991) - Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
• Okla. Stat. tit. 12 § 2404 (1991) - Character evidence not admissible to prove conduct
• Okla. Stat. tit. 12 § 2404(B) (1991) - Evidence of other crimes, wrongs, or acts

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Burks v. State, 594 P.2d 771, 774-75 (Okl.Cr. 1979)
• Jones v. State, 772 P.2d 922 (Okl.Cr.1989)
• Dodd v. State, 993 P.2d 778, 784 (Okl.Cr.2000)
• Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999)
• Humphreys v. State, 947 P.2d 565, 577-78 (Okl.Cr.1997)
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Bland v. State, 4 P.3d 702, 727 (Okl.Cr.2000)