Harold Edward McHam v The State Of Oklahoma

F-2001-46

Filed: Feb. 7, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Harold Edward McHam appealed his conviction for Kidnapping and Indecent Proposal. Conviction and sentence were affirmed for Indecent Proposal, but reversed and dismissed for Kidnapping. Judge Lile dissented on the Kidnapping conviction.

Decision

The Judgment and Sentence imposed on Count 5, Indecent Proposal, is AFFIRMED. The Judgment and Sentence for Kidnapping, Count 2, is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The order imposing incarceration fees is hereby VACATED, and the matter REMANDED for an evidentiary hearing consistent with this Opinion.

Issues

• Was the imposition of incarceration fees pursuant to Okla. Stat. Tit. 22, § 979(A) a violation of Mr. McHam's Fourteenth Amendment rights?
• Was the evidence presented at trial sufficient to support the verdicts that Mr. McHam was guilty of kidnapping and indecent proposals?
• Were Mr. McHam's Fourteenth Amendment due process rights violated by the imposition of an excessive sentence?

Findings

• the order imposing incarceration fees is vacated and remanded for an evidentiary hearing
• the conviction for Kidnapping (Count 2) is reversed and remanded with instructions to dismiss
• the conviction for Indecent Proposal (Count 5) is affirmed

F-2001-46

Feb. 7, 2002

Harold Edward McHam

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Harold Edward McHam, Appellant, was convicted in Choctaw County District Court, Case No. CF 99-139, of Kidnapping (Count 2), in violation of 21 O.S.Supp. 1999, § 741(1) and Indecent Proposal (Count 5), in violation of 21 O.S.Supp.1999, § 1123(A)(1). Jury trial was held October 10, 2000 through October 12, 2000, before the Honorable Willard Driesel, District Judge. The jury set punishment at one (1) year imprisonment on each count. At sentencing, Judge Driesel ordered the sentences to be served consecutively and ordered Appellant to pay One Thousand Dollars ($1,000.00) in incarceration fees. From the Judgment and Sentence imposed, Appellant filed this appeal.

Appellant raises three propositions of error:

1. The imposition of incarceration fees pursuant to Okla. Stat. Tit. 22, § 979(A), violated Mr. McHam’s Fourteenth Amendment rights as neither the statute nor the Rules of this Court provide for any mechanism wherein the amount of incarceration fees assessed can be determined to be the actual costs of incarceration. Furthermore, the fees were not imposed in accordance with the statutory requirements. Accordingly, the case must be remanded to the District Court wherein the incarceration fees assessed against Mr. McHam can be adequately determined or the incarceration fees dismissed;

2. The evidence presented at trial was insufficient to support the verdicts that Mr. McHam was guilty of kidnapping and indecent proposals; and,

3. Mr. McHam’s Fourteenth Amendment due process rights were violated by the imposition of an excessive sentence.

After thorough consideration of the propositions raised and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that some relief is warranted for the reasons set forth below.

At sentencing, the trial court ordered Appellant to reimburse the County for 50 days of your stay at the previously determine [sic] rate of $20.00 per day for an assessment of $1,000.00 under 22 O.S., Section 979 (A). However, the record does not demonstrate the trial court considered whether the imposition of incarceration costs would pose a manifest hardship to Appellant or to his immediate family. It also does not show how the trial court determined the actual costs of incarceration. The trial court did not comply with the mandates of 22 O.S.1991, § 979a(A) before assessing incarceration fees. Accordingly, the assessment of incarceration fees should be and hereby is VACATED and this matter is hereby REMANDED to the district court for an evidentiary hearing to follow the proper procedure for calculating such incarceration costs, in accordance with this Court’s recent opinion in Hubbard v. State, 2002 OK CR 8, — P.3d , and to determine whether the imposition of such costs would impose a manifest hardship on Appellant.

In Proposition Two, Appellant contends the evidence was insufficient to sustain his conviction for Kidnapping (Count 2), and we agree. The intent to confine secretly is an essential element of a kidnapping charge brought under 21 O.S.1 1991, § 741(1). Vandiver v. State, 97 Okl.Cr. 217, 261 P.2d 617, 624, overruled on other grounds in Parker v. State, 1996 OK CR 19, 917 P.2d 980. Reviewing the evidence in a light most favorable to the State, we cannot say the State proved this essential element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, Appellant’s conviction for Kidnapping (Count 2) is hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. We find the evidence sufficient to sustain the conviction for Indecent Proposal (Count 5). See Roldan v. State, 1988 OK CR 219, 11 7-8, 762 P.2d 285, 286-287.

Proposition Three is rendered moot by our decision to reverse Count 2 and therefore need not be addressed.

DECISION

The Judgment and Sentence imposed on Count 5, Indecent Proposal, is AFFIRMED. The Judgment and Sentence for Kidnapping, Count 2, is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The order imposing incarcerations fees is hereby VACATED, and the matter REMANDED for an evidentiary hearing consistent with this Opinion.

APPEARANCES AT TRIAL

JOHN BOUNDS
ATTORNEY AT LAW
P.O. BOX 787
HUGO, OKLAHOMA 74743
ATTORNEY FOR THE DEFENDANT

KATHERINE JANE ALLEN
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

JOE WATKINS
ASST. DISTRICT ATTORNEY LORI S. CARTER
CHOCTAW COUNTY
ASSISTANT ATTORNEY GENERAL
HUGO, OKLAHOMA 112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

OPINION BY: JOHNSON, V.P.J.

LUMPKIN, P.J.: JOINS IN
LILE’S CONCURS IN PART/DISSENTS IN PART

CHAPEL, J.: CONCURS

STRUBHAR, J.: CONCURS

LILE, J.: CONCURS IN PART/DISSENTS IN PART

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Footnotes:

1. Appellant was charged three counts of Kidnapping, Lewd Molestation and Indecent Proposal. (O.R. 1-5)
2. The trial court did not comply with the mandates of 22 O.S.1991, § 979a(A) before assessing incarceration fees.
3. The intent to confine secretly is an essential element of a kidnapping charge brought under 21 O.S.1991, § 741(1).
4. Vandiver v. State, 97 Okl.Cr. 217, 261 P.2d 617, 624, overruled on other grounds in Parker v. State, 1996 OK CR 19, 917 P.2d 980.
5. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
6. Roldan v. State, 1988 OK CR 219, 11 7-8, 762 P.2d 285, 286-287.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 741.1 (1999) - Kidnapping
• Okla. Stat. tit. 21 § 1123(A)(1) (1999) - Indecent Proposal
• Okla. Stat. tit. 22 § 979(A) (1991) - Incarceration Fees
• Okla. Stat. tit. 22 § 979a(A) (1991) - Incarceration Fees

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:

• Hubbard v. State, 2002 OK CR 8, --- P.3d
• Vandiver v. State, 97 Okl.Cr. 217, 261 P.2d 617, 624
• Parker v. State, 1996 OK CR 19, 917 P.2d 980
• Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
• Roldan v. State, 1988 OK CR 219, 762 P.2d 285, 286-287