Gilda Marie Schoonover v The State Of Oklahoma

F-2001-916

Filed: Aug. 15, 2002

Not for publication

Prevailing Party: Gilda Marie Schoonover

Summary

Gilda Marie Schoonover appealed her conviction for Committing or Permitting Child-Abuse Murder. Conviction and sentence were reversed, and a new trial was ordered. Judge Strubhar dissented.

Decision

The Judgment and Sentence of the district court is REVERSED AND REMANDED FOR A NEW TRIAL.

Issues

• Was there fundamental error by the trial court in instructing the jury on the alternative theory of knowingly permitting abuse of a minor child?
• Did the trial court commit reversible error in failing to compel the State to produce the written statement of Shelly Young?
• Did the trial court err in allowing testimony regarding Department of Human Services contacts with Appellant?
• Did the trial court err in allowing the State to amend the Information to include knowingly permitting child abuse as an alternative theory of prosecution?
• Did the trial court err in failing to grant Appellant's motion for new trial based on newly-discovered evidence concerning jury misconduct?
• Did the trial court err in failing to grant a new trial on the grounds that the State's case, based entirely on circumstantial evidence, failed to exclude every reasonable hypothesis but guilt?

Findings

• the trial court committed fundamental error by instructing the jury on the alternative theory of knowingly permitting abuse of a minor child
• the trial court committed reversible error in failing to compel the State to produce the written statement of Shelly Young
• the trial court erred in allowing testimony regarding Department of Human Services contacts with Appellant
• the trial court erred in allowing the State, after presenting its case in chief, to amend the Information to include knowingly permitting child abuse as an alternative theory of prosecution
• the trial court erred in failing to grant Appellant's motion for new trial based on newly-discovered evidence concerning jury misconduct
• the trial court erred in failing to grant a new trial on the grounds that the State's case, based entirely on circumstantial evidence, failed to exclude every reasonable hypothesis but guilt
• the Judgment and Sentence of the district court is REVERSED AND REMANDED FOR A NEW TRIAL

F-2001-916

Aug. 15, 2002

Gilda Marie Schoonover

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, Gilda Marie Schoonover, was charged jointly with her husband, John Edward Schoonover, by Information filed in the District Court of Mayes County, Case No. CF-1999-271, with First-Degree Child-Abuse Murder, 21 D.S.Supp. 1998, § 701.7(C). Preliminary hearing was held April 5 and 11, 2000, before the Honorable Gary J. Dean, Special Judge. Jury trial for both defendants was held April 19-25, 2001, before the Honorable Terry H. McBride, Associate District Judge. The jury found both defendants guilty on the amended charge of Committing or Permitting Child-Abuse Murder, and recommended sentences of life imprisonment for each. On July 25, 2001, the trial court sentenced both defendants in accordance with the jury’s recommendation. Appellant and her husband lodged separate appeals to this Court.

Appellant raises the following propositions of error:

1. The trial court committed fundamental error by instructing the jury on the alternative theory of knowingly permitting abuse of a minor child.
2. The trial court committed reversible error in failing to compel the State to produce the written statement of Shelly Young.
3. The trial court erred in allowing testimony regarding Department of Human Services contacts with Appellant.
4. The trial court erred in allowing the State, after presenting its case in chief, to amend the Information to include knowingly permitting child abuse as an alternative theory of prosecution.
5. The trial court erred in failing to grant Appellant’s motion for new trial based on newly-discovered evidence concerning jury misconduct.
6. The trial court erred in failing to grant a new trial on the grounds that the State’s case, based entirely on circumstantial evidence, failed to exclude every reasonable hypothesis but guilt.

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 REVERSE AND REMAND FOR A NEW TRIAL.

Appellant was charged jointly with her husband with inflicting unreasonable fatal force upon Benjamin Stanart Schoonover, a thirty-four-month-old relative whom they were in the process of adopting. The Schoonovers were at their rural home with the child when the fatal injury occurred. The State presented evidence that Appellant and her husband gave vague accounts concerning the child’s behavior in the weeks preceding his death. Neither claimed to have actually witnessed the fatal injury itself. At trial, Appellant testified that she was in another room, and her husband was outside the house, when she heard a thud and found the child lying on the tile floor; one of the State’s own witnesses corroborated this claim, stating that she was talking to Mrs. Schoonover on the telephone at the time. The State also presented evidence that Appellant and her husband considered the child to have behavioral problems, and had considered canceling the adoption process.

At the close of the evidence, the trial court granted the State’s request to amend the charge to include Permitting Child-Abuse Murder as an alternative theory of culpability as to both Appellant and her husband. The jury returned general verdicts finding both Appellant and her husband guilty of First-Degree Murder.

In Propositions 1, 4, and 6, Appellant challenges the propriety of allowing the State to present this alternative theory for the jury’s consideration. The crime of Committing Child-Abuse Murder requires the State to prove the accused willfully or maliciously injured, tortured, maimed, or used unreasonable force against a child, causing the child’s death. 21 O.S.Supp. 1998, § 701-7(C); OUJI-CR (2nd) No. 4-65A. A person may be found guilty of Permitting Child-Abuse Murder if he or she willfully causes, procures or permits another to commit such acts on a child in his or her care.

The crime of Permitting Child-Abuse Murder requires the State to prove the accused (1) was legally responsible for the child’s safety, and (2) allowed the child to be cared for by another while knowing, or having reason to know, that the child was at risk of being abused. Id.; cf. OUJI-CR (2nd) No. 4-36 (defining permitting in relation to the crime of child abuse under 10 O.S.Supp.2000, § 7115).

By amending the charge after the evidence had been submitted, the State presented the jury with at least four independent theories of guilt: (1) that Gilda Schoonover committed the fatal act; (2) that John Schoonover knowingly permitted his wife to commit the fatal act; (3) that John Schoonover committed the fatal act; and (4) that Gilda Schoonover knowingly permitted her husband to commit the fatal act. We find the evidence presented at trial sufficient to support the jury’s conclusion that the child’s death was not accidental. However, the evidence presented does not, in our view, reasonably support the theory that Appellant knowingly permitted her husband to inflict unreasonable force on the child. Such a theory would require evidence that Appellant knew, or had reasonable cause to believe, that her husband would commit such abuse on the child. Such notice could be established, for example, by evidence that Appellant’s husband committed the fatal act in her presence and under circumstances which gave her an opportunity to prevent it, or by evidence that Appellant was aware her husband had committed prior acts of abuse and yet allowed him to continue to care for the child. No such evidence was presented in this case.

The fact that Appellant and her husband may have considered the child a discipline problem does not, without more, establish that either of them had actually committed child abuse as a response. The uncertainty here is magnified by the fact that the jury was presented with alternative theories of guilt (committing or permitting child-abuse murder) for both Appellant and her husband. Conceivably, two co-defendants could both be found guilty of committing child-abuse murder under aiding and abetting principles. But it would be anomalous indeed to convict each of permitting the other to commit child abuse, at least under the facts presented here.

Under Oklahoma law, the jury may consider alternative theories of culpability, and need not be unanimous as to which theory supports the conviction, but only if the evidence is sufficient to support a conviction under each alternative theory. Because of the general verdicts, it is impossible to determine whether the jury rested its decision on a theory sufficiently supported by the evidence, we must REVERSE AND REMAND FOR A NEW TRIAL.

DECISION

The Judgment and Sentence of the district court is REVERSED AND REMANDED FOR A NEW TRIAL.

AN APPEAL FROM THE DISTRICT COURT OF MAYES COUNTY

THE HONORABLE TERRY H. McBRIDE, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

GARY MADISON
ATTORNEY AT LAW
1350 S. BOULDER, SUITE 1200
TULSA, OK 74119
ATTORNEY FOR DEFENDANT

CHARLES RAMSEY
W. A. DREW EDMONDSON
RAY HASSELMAN
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT DISTRICT ATTORNEYS
PATRICK T. CRAWLEY
ASSISTANT ATTORNEY GENERAL
MAYES COUNTY COURTHOUSE
PRYOR, OK 74361
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY JOHNSON, V.P.J.
LUMPKIN, P.J.: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS
LILE, J.: CONCURS

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Footnotes:

1. 21 D.S.Supp. 1998, § 701.7(C)
2. Okla. Stat. tit. 21 § 701-7(C)
3. 10 O.S.Supp.2000, § 7115
4. Abshier v. State, 2001 OK CR 13, 122-127, 28 P.3d 579, 606, cert. denied, U.S. , 122 S.Ct. 1548, L.Ed.2d (2002)
5. Gilson v. State, 2000 OK CR 14, ¶¶ 77-89, 8 P.3d 883, 910-13, cert. denied, 532 U.S. 962, 121 S.Ct. 1496, 149 L.Ed.2d 381 (2001)
6. Johnson v. State, 1988 OK CR 54, ¶ 8, 751 P.2d 1094, 1096
7. McGregor v. State, 1994 OK CR 71, ¶ 12 n. 19, 885 P.2d 1366, 1376 n. 19, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995)
8. Tibbs v. State, 1991 OK CR 115, ¶¶ 7-8, 819 P.2d 1372, 1375-76

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7(C) (1998) - First-Degree Child-Abuse Murder
• Okla. Stat. tit. 21 § 701.8 (2011) - Committing Child-Abuse Murder
• Okla. Stat. tit. 10 § 7115 (2000) - Permitting Child-Abuse Murder

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:

No case citations found.