Randy Scott Bucsok v The State Of Oklahoma

F-2000-1156

Filed: Aug. 28, 2001

Not for publication

Prevailing Party: Randy Scott Bucsok

Summary

Randy Scott Bucsok appealed his conviction for lewd molestation and rape. Conviction and sentence were reversed, and the case was sent back for a new trial. Judge Lile dissented.

Decision

The Judgment of the trial court is REVERSED. The case is hereby REMANDED to the trial court for a new trial.

Issues

• Was there an error in the trial court in disallowing the testimony of Shell and Kemble?
• Did the trial court err in admitting hearsay testimony of Katie through witnesses Beattie and Prather?
• Was there an error by the trial court in allowing the jury to hear evidence of uncharged crimes without sufficient notice?
• Did the trial court err in excluding testimony of Katie's masturbation as offered to explain the injury to Katie's genitalia?

Findings

• the court erred in disallowing the testimony of Shell and Kemble
• the court properly allowed the hearsay testimony of Beattie and Prather
• no plain error in admitting the testimony of Dr. Barnes, but error in admitting Prather's testimony
• the court did not abuse its discretion in excluding the testimony of Karen Bucsok

F-2000-1156

Aug. 28, 2001

Randy Scott Bucsok

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Randy Scott Bucsok was tried by a jury and convicted of Count I: Lewd Molestation in violation of 21 O.S.1991, § 1111; Count II: Rape by Instrumentation in violation of 21 O.S.1991, § 888; and Count III: Lewd Molestation in violation of 21 O.S.1991, § 1111 in the District Court of Rogers County, Case No. CF-99-238. In accordance with the jury’s recommendation, the Honorable Dynda Post sentenced Bucsok to ten (10) years imprisonment on Count I, thirty (30) years imprisonment on Count II, and twenty (20) years imprisonment on Count III. Judge Post suspended ten (10) years of the defendant’s twenty (20) year sentence on Count III and ordered the sentences to run consecutively. Bucsok has perfected his appeal to this court.

Bucsok raises the following propositions of error:

I. Error of the trial court in disallowing the testimony of Shell and Kemble.
II. Error of the trial court in admitting hearsay testimony of Katie through witnesses Beattie and Prather.
III. Error of the trial court in allowing the jury to hear evidence of uncharged crimes without sufficient notice.
IV. Error of the trial court in excluding testimony of Katie’s masturbation as offered to explain the injury to Katie’s genitalia.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we reverse the judgment of the lower court and remand the case for a new trial. We find in Proposition I reversible error in the trial court’s ruling to bar the testimony of Shell and Kemble. 1 We reverse and remand on Proposition I alone; however, we review Propositions II, III, and IV to aid at re-trial.

We find in Proposition II that the trial court properly allowed Beattie and Prather to testify regarding the victim’s statements to them.2 In Proposition III, we find no plain error in admitting the testimony of Dr. Barnes but error in admitting the testimony of Prather.3 We find in Proposition IV that the trial court did not abuse its discretion in excluding the testimony of Karen Bucsok.

Decision

The Judgment of the trial court is REVERSED. The case is hereby REMANDED to the trial court for a new trial.

ATTORNEYS AT TRIAL

M. RENE BULL
403 WEST FIRST STREET
CLAREMORE, OKLAHOMA 74018

ATTORNEYS ON APPEAL

ALLEN M. SMALLWOOD
1310 SOUTH DENVER AVENUE
TULSA, OKLAHOMA 74119
ATTORNEY FOR APPELLANT

GLENNA S. DORRIS
616 SOUTH MAIN STREET
TULSA, OKLAHOMA 74119
ATTORNEY FOR DEFENDANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL BULDING
OKLAHOMA CITY, OK 73105
ASSISTANT ATTORNEY GENERAL

PATRICK ABITBOL
ASSISTANT DISTRICT ATTORNEY
ROGERS COUNTY COURTHOUSE
CLAREMORE, OKLAHOMA 74017
ATTORNEY FOR THE STATE

OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR IN RESULTS
JOHNSON, V.P.J.: CONCUR
STRUBHAR, J.: CONCUR
LILE, J.: CONCUR IN RESULTS

The trial transcript in this case reveals that the trial court did not allow Shell to testify because of doubts as to her competence coupled with the belief that Shell’s testimony was improper impeachment because it did not completely contradict the victim’s testimony. However, the two statements were sufficiently inharmonious to allow the jury to hear it for impeachment purposes.

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Footnotes:

1. Okla. Stat. tit. 21 § 1111
2. Okla. Stat. tit. 21 § 888
3. Okla. Stat. tit. 12 § 2803.1
4. Okla. Stat. tit. 12 § 2403
5. Okla. Stat. tit. 12 § 2404(B)
6. Okla. Stat. tit. 12 § 2412(B)(1), (C)
7. Okla. Stat. tit. 22 § 2002
8. Okla. Stat. tit. 21 § 1111
9. Okl.Cr. 541 P.2d 1343
10. Okl.Cr. 891 P.2d 586
11. Okl.Cr. 19 P.3d 294
12. Okl.Cr. 829 P.2d 998
13. Okl.Cr. 1995 OK 41, 894 P.2d 1116
14. 3 L. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, §§ 47.25 et seq. (1994)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111 - Lewd Molestation
• Okla. Stat. tit. 21 § 888 - Rape by Instrumentation
• Okla. Stat. tit. 22 § 2002 - Child's Statement Admissibility
• Okla. Stat. tit. 12 § 2403 - Exclusion of Relevant Evidence
• Okla. Stat. tit. 12 § 2404(B) - Character Evidence
• Okla. Stat. tit. 12 § 2412(B)(1) - Evidence of Sexual Behavior

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
• Lancaster v. State, 541 P.2d 1343 (Okl.Cr.1975)
• Hawkins v. State, 891 P.2d 586, 594 (Okl.Cr. 1994)
• Hooks v. State, 19 P.3d 294, 306 (Okl.Cr.2001)
• Bales v. State, 829 P.2d 998, 1000 (Okl.Cr.1992)
• Crussel v. Kirk, 1995 OK 41, 894 P.2d 1116