Gary Patrick Ciancio v The State Of Oklahoma

F-2011-568

Filed: Dec. 7, 2012

Not for Publication

Prevailing Party: Gary Patrick Ciancio

Summary

Gary Patrick Ciancio, Jr. appealed his conviction for Child Abuse by Injury. Conviction and sentence of 25 years in prison and a $5,000 fine were imposed. Judge Lumpkin dissented.

Decision

Ciancio's Child Abuse by Injury CONVICTION is AFFIRMED, but his SENTENCE IS MODIFIED to imprisonment for 15 years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there improper character evidence and evidence of "bad acts" presented that deprived Ciancio of the right to a fair trial?
• Did Ciancio receive ineffective assistance of counsel as guaranteed by the Sixth Amendment?

Findings

• the court erred in admitting improper character evidence and evidence of bad acts which constituted ineffective assistance of counsel
• the evidence was sufficient to support the conviction for child abuse
• the conviction for Child Abuse by Injury is affirmed
• the sentence is modified to imprisonment for 15 years

F-2011-568

Dec. 7, 2012

Gary Patrick Ciancio

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE: Gary Patrick Ciancio, Jr., Appellant, was tried by jury and convicted of Child Abuse by Injury (Count I), in violation of 21 O.S.Supp.2010, § 843.5(A), in the District Court of Pittsburg County, Case No. CF-2010-401. In accord with the jury verdict, the Honorable Thomas M. Bartheld, District Judge, sentenced Ciancio to imprisonment for 25 years and a fine of $5,000. The serving of this sentence is subject to the 85% Rule, under 21 O.S. Supp.2009, § 13.1(14). Ciancio is properly before this Court on direct appeal. Ciancio raises the following propositions of error:

I. THE ADMISSION OF IMPROPER CHARACTER EVIDENCE AND EVIDENCE OF BAD ACTS DEPRIVED MR. CIANCIO OF THE RIGHT TO A FAIR TRIAL.

II. MR. CIANCIO FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT.

Ciancio was charged by Amended Information with one count of Child Abuse by Injury, under 21 O.S.Supp.2010, § 843.5(A), during the time period of September 19-22, 2010. Two specific acts of child abuse were named in the Information: (1) burning C.D. on the hand with a cigarette lighter, causing 1st and 2nd degree burns, and (2) hitting [C.D.] on the lower back, hips, and buttocks area, causing severe purple contusions and petechiae. The evidence presented at Ciancio’s trial was more than sufficient to establish that Ciancio committed these acts upon C.D. and that C.D. was injured thereby. C.D. reported to numerous persons that the severe burn on his right hand, discovered on September 22, 2010, was caused by Ciancio burning him with a cigarette lighter and that the severe bruising on his right buttock, side, and lower back, which was discovered at the same time, was caused by Ciancio spanking him with a black belt. Ciancio denied causing any of C.D.’s injuries and presented a case at trial that the observed injuries were not caused by him, i.e., that the burn was caused by C.D. touching a hot pot in the kitchen and that the bruising was caused by C.D. jumping off of furniture and other things and repeatedly landing on his right side, while the family was at the lake in Eufaula the previous weekend. Nevertheless, C.D.’s consistent statements at the time, as well as his trial testimony, more than adequately established that the source of his injuries was his mother’s boyfriend, Ciancio.

Yet Ciancio’s three-day trial included substantial amounts of other evidence that was not relevant to these specific charges and that reflected very poorly on Ciancio (and also C.D.’s mother, Jones). In Proposition I, Ciancio argues that the State was allowed to present improper and irrelevant character and bad acts evidence, that this evidence was unduly prejudicial, that the State did not provide adequate pre-trial notice of this evidence, and that Ciancio’s jury was not given any kind of limiting instruction about how such evidence could be considered. See 12 O.S.2001, § 2404; 12 O.S.Supp.2003, § 2403; Burks U. State, 1979 OK CR 10, 594 P.2d 771, overruled on limited grounds by Jones U. State, 1989 OK CR 7, 18, 772 P.2d 922, 925. Since none of these challenges were raised at trial, however, this claim has been waived, and we review only for plain error. In Proposition II, Ciancio acknowledges that most of the evidence challenged in Proposition I was introduced without objection from his counsel. In fact, defense counsel failed to object to all of the now-challenged evidence addressed herein. Hence this Court focuses its analysis on Ciancio’s Proposition II ineffective assistance claim.

In order to establish ineffective assistance of counsel, Ciancio must demonstrate that the performance of his counsel was deficient and unreasonable and that he was prejudiced thereby. And to establish prejudice, Ciancio must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The State presented evidence to Ciancio’s jury that in addition to burning C.D. with the lighter and severely bruising him by spanking him with the belt, Ciancio would punish C.D. (and his sister B.R.) by making them eat red peppers, making C.D. bite into a bar of soap, dragging C.D. out of bed and kicking him, and that Ciancio threatened to give the children a swirly in the bathroom. The State also presented evidence that after telling C.D. to shut up and making C.D. dance, Ciancio hit C.D. on the head with a paintball gun. These incidents were not alleged as part of the child abuse count charged against Ciancio and apparently did not injure C.D., but they certainly painted a negative picture of Ciancio and his character as a care provider and were unfairly prejudicial, particularly regarding Ciancio’s sentence. The suggestion that Ciancio may have threatened to break down a door during a fight with Jones was likewise potentially prejudicial.

The State insists—based entirely upon an affidavit written by a police officer (who did not testify) about what B.R. allegedly said in her interview with Sharon Godwin—that the various other acts of abuse presented at trial were res gestae to the crimes of abuse charged. This Court notes, however, that even according to the affidavit, B.R. stated that she was not present when the alleged events happened, and, furthermore, that the officer’s recollection of what B.R. said was not consistent with either B.R.’s trial testimony or with Godwin’s account of what B.R. said during the same interview. More importantly, the officer’s hearsay-on-hearsay account of what B.R. said is likewise inconsistent with C.D.’s statement to Godwin that the incident where Ciancio hit him on the head with a paintball gun occurred the day before Ciancio burned him. The affidavit is likewise inconsistent with C.D.’s repeated statement that Ciancio burned him with the lighter because he wasn’t listening—not because he was crying. This Court will not strain to find the challenged evidence to be res gestae to the specific criminal acts charged herein on the basis of a single, hearsay, unsubstantiated, and contrary-to-actual-evidence statement in an affidavit, when none of the evidence presented at trial suggested that the other acts of arguable abuse were at all connected to, intermingled with, or part of a chain of events with the charged acts.

Perhaps most potentially prejudicial at trial (and quite unfairly so) were various references to concerns about possible sexual abuse by Ciancio—none of which were objected to by defense counsel. Sharon Godwin testified that a second forensic interview was done of C.D., this time for sexual abuse, after sexual abuse was brought up during the case. Although defense counsel clarified with Godwin that sexual abuse was not charged in the case against Ciancio, counsel failed to clarify with Godwin that there was apparently no evidence whatsoever that Ciancio had sexually abused C.D. (or B.R.) or even an allegation that he had done so. Hence the repeated references to potential sexual abuse and a sexual abuse interview done by Godwin were potentially quite unfairly prejudicial to Ciancio. Later in Ciancio’s trial, evidence was brought out by both the State and defense counsel that C.D. may have been sexually abused by a previous boyfriend of Jones’—in whose care she left her children while she was away at military school. But this evidence was also entirely irrelevant to the charges against Ciancio and seemed likely to create additional, prejudicial sympathy for the victim, C.D., for potential crimes committed against him by someone else, and may well have contributed unfairly to the sentence of 25 years given by the jury in this case.

This Court is quite disturbed by the amount of irrelevant character evidence and other improper evidence that was allowed into evidence at Ciancio’s trial, which was not objected to and was sometimes further developed by Ciancio’s own counsel. This Court is convinced that this evidence did not impact the jury’s finding of guilt against Ciancio, which was well supported by the evidence presented at trial and by the victim’s consistent statements about how he was injured by Ciancio. We need not decide Ciancio’s Proposition I claim regarding whether the trial court’s failure to exclude this evidence (and failure to give the jury a limiting instruction on this evidence), sua sponte, amounted to plain error. Rather, this Court finds that defense counsel’s total failure to object to this improper and potentially prejudicial evidence, as well as counsel’s further development of some of this improper evidence, constituted inadequate performance of counsel and that there is a reasonable probability that this improperly admitted evidence unfairly increased the sentence that Ciancio received from the jury for his single-count conviction of Child Abuse by Injury. Consequently, this Court finds that Ciancio has established ineffective assistance of trial counsel and that his sentence of imprisonment for 25 years should be modified to imprisonment for 15 years.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits, we find that Ciancio’s conviction should be affirmed, but that his sentence should be modified to imprisonment for 15 years.

DECISION

Ciancio’s Child Abuse by Injury CONVICTION is AFFIRMED, but his SENTENCE IS MODIFIED to imprisonment for 15 years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.Supp.2010, § 843.5(A)
2. 21 O.S. Supp.2009, § 13.1(14)
3. 12 O.S.2001, § 2404
4. 12 O.S.Supp.2003, § 2403
5. Burks U. State, 1979 OK CR 10, 594 P.2d 771
6. Jones U. State, 1989 OK CR 7, I 8, 772 P.2d 922, 925
7. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
8. Williams U. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000)
9. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068
10. Rogers v. State, 1995 OK CR 8, I 21, 890 P.2d 959, 971
11. Burks U. State, 1979 OK CR 10, 584 P.2d 771
12. Williams v. State, 2008 OK CR 19, I 45, 188 P.3d 208, 220
13. Lougin v. State, 1988 OK CR 21, I 7, 749 P.2d 565, 567
14. Mooney U. State, 1999 OK CR 34, I 39, 990 P.2d 875, 887
15. Hogan U. State, 2006 OK CR 19, 139 P.3d 907
16. Wisdom U. State, 1996 OK CR 22, II 32-33, 918 P.2d 384, 393-94
17. Drew U. State, 1989 OK CR 1, 22, 771 P.2d 224, 229
18. Anderson v. State, 1999 OK CR 44, I 12, 992 P.2d 409, 415

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(A) (2010) - Child Abuse by Injury
• Okla. Stat. tit. 21 § 13.1(14) (2009) - Sentencing under the "85% Rule"
• Okla. Stat. tit. 12 § 2404 (2001) - Character Evidence; Other Crimes
• Okla. Stat. tit. 12 § 2403 (2003) - Relevant Evidence; Exclusions
• Okla. Stat. tit. 12 § 2404(B) (2011) - Other Crimes, Wrongs, or Acts
• Okla. Stat. tit. 22, Ch. 18, App. § 3.15 (2012) - Mandate Rules for Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Certain Crimes

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, 1979 OK CR 10, 594 P.2d 771
• Jones v. State, 1989 OK CR 7, I 8, 772 P.2d 922, 925
• Rogers v. State, 1995 OK CR 8, I 21, 890 P.2d 959, 971
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000)
• Hogan v. State, 2006 OK CR 19, 139 P.3d 907
• Murphy v. State, 2012 OK CR 8, 281 P.3d 1283
• Cole v. State, 2007 OK CR 27, II 12-21, 164 P.3d 1089
• Lott v. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334-335
• Wisdom v. State, 1996 OK CR 22, II 32-33, 918 P.2d 384
• Drew v. State, 1989 OK CR 1, 22, 771 P.2d 224
• Warner v. State, 2006 OK CR 40, I 30, 144 P.3d 838
• Beck v. State, 1991 OK CR 126, II 12-13, 824 P.2d 385
• Bland v. State, 2000 OK CR 11, 4 P.3d 702
• Phillips v. State, 1999 OK CR 38, I 103, 989 P.2d 1017
• Mooney v. State, 1999 OK CR 34, 990 P.2d 875
• Lougin v. State, 1988 OK CR 21, I 7, 749 P.2d 565
• Williams v. State, 2008 OK CR 19, I 45, 188 P.3d 208