Jose Fajardo v The State Of Oklahoma

F 2001-1506

Filed: Nov. 18, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jose Fajardo appealed his conviction for Lewd Molestation and Indecent Proposal to a Child. Conviction and sentence: 5 years for Lewd Molestation and 15 years for Indecent Proposal, to be served one after the other. Judge John H. Scaggs oversaw the jury trial, which took place on July 28, 2001, in Marshall County. Fajardo raised nine issues in his appeal. One important issue was that a special advocate for the victim participated in the trial without proper authority. This was seen as unfair to Fajardo because it made it feel like he was facing two opponents instead of one during the trial. The court found that this was a serious mistake and decided that Fajardo should get a new trial. The other issues raised by Fajardo were not addressed because the main error was enough to overturn the convictions. #Jose Fajardo appealed his conviction for Lewd Molestation and Indecent Proposal to a Child. Conviction and sentence: 5 years for Lewd Molestation and 15 years for Indecent Proposal, to be served consecutively. No justices dissented.

Decision

The Judgment and Sentences imposed in Marshall County District Court, Case No. CF 99-157, are hereby REVERSED AND REMANDED FOR A NEW TRIAL.

Issues

• Was there error in failing to excuse for cause Juror Waggoner, denying the appellant his right to a fair trial?
• Did the appellant receive ineffective assistance of counsel due to the failure to timely subpoena a critical defense witness?
• Do the appellant's alleged acts constitute one continuous act, thereby violating constitutional double jeopardy protections?
• Were the prosecutorial comments improper and fundamental in denying the appellant a fair trial?
• Did the court err in admitting photographs of the victim presented by the State?
• Was the court's refusal to allow defense counsel to rebut testimony of the victim with evidence of untruthful statements an error?
• Did the court err in allowing another attorney to participate in the trial that was not a party?
• Were the sentences imposed excessive under the facts and circumstances of the case?
• Did the accumulation of errors occurring at trial necessitate remanding the case for a new trial?

Findings

• the court erred
• the evidence was sufficient
• the court erred
• the court erred
• the court erred
• the court erred
• the court erred
• the sentences were excessive
• the accumulation of errors mandates a new trial

F 2001-1506

Nov. 18, 2002

Jose Fajardo

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE:

Appellant, Jose Fajardo, was convicted by a jury in Marshall County District Court, Case No. CF 1999-157, of Lewd Molestation, in violation of 21 O.S. § 1123 (Count I), and Indecent Proposal to a Child, in violation of 21 O.S. § 1123 (Count II).^1 Jury trial was held July 28, 2001, before the Honorable John H. Scaggs, District Judge. The jury set punishment at five (5) years imprisonment on Count I and fifteen (15) years imprisonment on Count II. Formal sentencing was held on October 24th, 2001. Judge Scaggs sentenced Appellant in accordance with the jury’s verdicts and ordered Appellant to serve the sentences consecutively. Appellant filed this appeal.

Appellant raises nine propositions of error:
1. The Court erred in failing to excuse for cause Juror Waggoner and thereby denying Mr. Fajardo his right to a fair trial.
2. Appellant was denied effective assistance of counsel by counsel’s failure to timely subpoena and have present for trial a critical defense witness.^1
3. Appellant’s alleged acts constitute one continuous act therefore the convictions violate constitutional double jeopardy protections.
4. Improper prosecutorial comments were fundamental in denying Mr. Fajardo a fair trial.
5. The court erred in admitting photographs of Shariah Lewis presented by the State.
6. The court erred in not allowing defense counsel to rebut testimony of Shariah Lewis by presenting evidence of untruthful statements.
7. The court erred in allowing another attorney to be at and participate in the trial that was not a party.
8. Because the sentences imposed are excessive under the facts and circumstances of this case, the sentences must be reduced.
9. The accumulation of errors occurring at trial, as evidenced by the aforementioned propositions, mandates that this case be remanded for a new trial.

After thorough consideration of the record before us, including the Original Record, transcripts, and briefs and arguments of the parties, we have concluded that the claim raised in Proposition Seven warrants relief. Appellant’s convictions must therefore be reversed and remanded for a new trial.

With respect to Proposition Seven, we find the trial court committed reversible error and violated Appellant’s right to due process when it allowed a special advocate for the victim to participate in the trial. There is no statutory authority for the appointment of a special advocate in a lewd molestation/indecent proposal case. While the Child Abuse Reporting and Prevention Act in Title 10 allows for the appointment of an advocate to represent a child who is a victim of child abuse or neglect, Appellant was not^2 charged with child abuse or any offense under Title 10. The State did not allege the child victim was a victim of child abuse. Appellant was charged under Title 21 with lewd molestation and indecent proposal. As there was no statutory authority for the appointment of a child advocate in this case, the appointment of such an advocate was fundamental error. See 10 O.S.Supp. 1995, § 7112 (A); see also Conner v. State, 1992 OK CR 68, ^7, 839 P.2d 1378, 1380 (fundamental error was committed when a special advocate was appointed without statutory authority). We cannot find this error was harmless. The victim’s advocate took an active role in the trial by cross-examining witnesses and his questions helped the State prove its case. He took an active and adversarial role. Had he remained passive, we might find the error harmless. However, his active advocacy placed Appellant in a two against one trial situation and we cannot find it was harmless beyond a reasonable doubt. This error therefore requires this matter be reversed and remanded for a new trial. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Conner, 1992 OK CR 68, ^9, 839 P.2d at 1380; Cooper v. State, 1996 OK CR 38, ^4, 922 P.2d 1217, 1218. The remaining propositions are hereby rendered moot and need not be addressed.

DECISION

The Judgment and Sentences imposed in Marshall County District Court, Case No. CF 99-157, are hereby REVERSED AND REMANDED FOR A NEW TRIAL.

APPEARANCES AT TRIAL

JOSEPH O. MINTER, ATTORNEY AT LAW
P.O. BOX 370
MADILL, OK 73446
ATTORNEY FOR DEFENDANT

CRAIG LADD, ASST. DISTRICT ATTORNEY
CARTER COUNTY COURTHOUSE
ARDMORE, OK 73401
ATTORNEYS FOR STATE

APPEARANCES ON APPEAL

V. CURTIS BUSSETT, ATTORNEY AT LAW
233 PARK AVENUE
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON, ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

JOHN D. OTEY
10 W. MAIN STREET, SUITE 618
ARDMORE, OK 73401
ATTORNEY FOR THE CHILD

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 O.S. § 1123
2. 10 O.S.Supp. 1995, § 7112 (A)
3. Conner v. State, 1992 OK CR 68, "I 7, 839 P.2d 1378, 1380
4. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
5. Conner, 1992 OK CR 68, "I 9, 839 P.2d at 1380
6. Cooper v. State, 1996 OK CR 38, I 4, 922 P.2d 1217, 1218

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 - Lewd Molestation
• Okla. Stat. tit. 10 § 7112 - Child Advocate

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:

• Conner v. State, 1992 OK CR 68, I 7, 839 P.2d 1378, 1380
• Conner v. State, 1992 OK CR 68, I 9, 839 P.2d at 1380
• Cooper v. State, 1996 OK CR 38, I 4, 922 P.2d 1217, 1218
• Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)