Joe Nathan Stargell v State Of Oklahoma

F-2001-759

Filed: May 16, 2002

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Joe Nathan Stargell appealed his conviction for Injury to a Minor Child. Conviction and sentence were affirmed to eight years imprisonment plus costs. Judge Chapel dissented, suggesting a three-year sentence instead.

Decision

The Judgment of the trial court is AFFIRMED. The Sheriff's Fees are VACATED and the matter is remanded for an evidentiary hearing, where the Sheriff's Fees can be calculated in accordance with the applicable statute.

Issues

• Was there an error in failing to give the requested instruction on the lesser included offense of assault and battery, domestic abuse?
• Did the trial court fail to instruct the jury on the fundamental issue in this case?
• Did the failure to request an instruction on a parent's right to spank a child constitute ineffective assistance of counsel?
• Did prosecutorial misconduct during closing arguments deprive Mr. Stargell of a fair trial?
• Was Mr. Stargell's sentence excessive?
• Did the procedure used to impose incarceration fees violate statutory provisions and due process rights?
• Was the statute under which Mr. Stargell was convicted unconstitutionally vague as applied to him?
• Was the evidence insufficient to prove beyond a reasonable doubt that Mr. Stargell "injured" his daughter?

Findings

• The court did not err in failing to give the requested instruction on the lesser included offense of assault and battery, domestic abuse.
• The trial court's instructions as a whole fairly and accurately stated the applicable law.
• Counsel was not ineffective in failing to request the instruction on a parent's right to spank a child.
• The prosecutor's comments, while erroneous, did not deprive Appellant of a fair trial.
• The sentence imposed on Appellant was not excessive.
• The imposition of incarceration fees was improperly handled and must be vacated, remanding for an evidentiary hearing.
• The statute under which Appellant was convicted is constitutional as applied to him.
• The evidence was sufficient to prove injury beyond a reasonable doubt.

F-2001-759

May 16, 2002

Joe Nathan Stargell

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Joe Nathan Stargell, Appellant, was tried by jury and convicted of one count of Injury to a Minor Child in the District Court of Pottawatomie County, Case No. CF-00-493, District Judge Glenn Dale Carter presiding. The trial court followed the jury’s recommendation and sentenced Appellant to eight years imprisonment plus costs and fees. From this judgment and sentence, Appellant appeals. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the judgment but remand the matter for the reasons discussed below.

We have reviewed the following propositions of error:

I. The trial court erred in failing to give the requested instruction on the lesser included offense of assault and battery, domestic abuse;

II. The trial court failed to instruct the jury on the fundamental issue in this case; therefore, the conviction should be reversed;

III. The failure to request an instruction on a parent’s right to spank a child constituted ineffective assistance of counsel;

IV. Prosecutorial misconduct during closing arguments deprived Mr. Stargell of a fair trial;

V. Mr. Stargell received an excessive sentence;

VI. The procedure used to impose incarceration fees in this case violated the statutory provision for imposing such fees, as well as the constitutionally protected right to due process;

VII. The statute under which Mr. Stargell was convicted is unconstitutionally vague as applied to him; and

VIII. The evidence is insufficient to prove beyond a reasonable doubt that Mr. Stargell injured his daughter.

As to Proposition I, assuming arguendo Appellant is correct that the difference between domestic abuse and child abuse is the existence of injury and that domestic abuse is a lesser offense, we find the evidence did not warrant a domestic abuse instruction as the existence of injury was not in dispute. Accordingly, we find no plain error. Pickens v. State, 19 P.3d 866, 878 (Okl.Cr.2001).

As to Proposition II, we find the instructions as a whole fairly and accurately stated the applicable law. Omalza v. State, 911 P.2d 286, 303 (Okl.Cr.1995). Consequently, we find that counsel was not ineffective in failing to request the complained-of instruction as urged in Proposition III. Williams v. State, 22 P.3d 702, 730 (Okl.Cr.2001), cert. denied, U.S. 122, S.Ct. 836, 151 L.Ed.2d 716 (2002).

As to Proposition IV, we find the prosecutor did err in making statements appealing to the jury’s sympathy for the victim. However, we cannot find the improper remarks denied Appellant a fair trial. Spears v. State, 900 P.2d 431, 445 (Okl.Cr.) cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). We also find Appellant’s eight-year sentence is well within the statutory limit and is not shockingly excessive in this case. Rea U. State, 34 P.3d 148, 149 (Okl.Cr.2001).

As to Proposition VII, we find the child abuse statute is constitutional. When 21 O.S.1991, § 844 is considered with 10 O.S.Supp. 1999, § 7115, it is clear that a parent cannot wilfully inflict bodily injury under the guise of spanking without threat of criminal sanctions. Based on this record, we find persons of ordinary intelligence would know that whipping a child with an extension cord, bruising the child’s back, neck, arms, and legs is prohibited by § 7115.

As to his final proposition, we find the evidence was sufficient to prove injury beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).

As to Proposition VI, Appellant complains the trial court attempted to impose incarceration fees through the Sheriff’s Fees portion of his Judgment & Sentence without a request from the district attorney and a hearing in violation of 22 O.S.Supp.1999, § 979a. The Judgment and Sentence provides that Appellant pay court costs, a $50.00 Victim’s Compensation Assessment, and Sheriff’s Fees totaling $2,320.00 plus a continuing Sheriff’s Fees at the rate of $30.00 per day, mileage, transport fee, and medical expenses. A district court has jurisdiction to assess certain costs of prosecution on a convicted defendant. 28 O.S. 1991, § 101. Hubbard v. State, 2002 OK CR 8, P.3d . The costs outlined in 28 O.S.1991, § 101 are: court clerk’s costs; Sheriff’s fees; fees and mileage of witnesses; and cost deposits in the appellate court. Section 153 sets forth the costs in criminal cases and provides a $30.00 Sheriff’s fee for the serving or attempts to serve each writ, warrant, order, process, command, or notice or pursuing any fugitive from justice. Title 22 O.S.Supp. 1999, § 979a (A) extends the costs that may be recouped to include the costs of detention in a city or county jail. Hubbard, 2002 OK CR 8, I 6. Costs of incarceration include booking, receiving and processing out, housing, food, clothing, medical care, dental care, and psychiatric services. 22 O.S.Supp. 1999, § 979a (A). The costs that make up the $2,320.00 Sheriff’s fee assessed in this case are unknown from this record. The continuing Sheriff’s fee includes items included in § 979a, i.e., jail costs. This record does not show the district attorney requested incarceration costs as § 979a mandates. Further, there was no finding by the trial court that the imposition of jail costs would not create a manifest hardship upon the defendant, or whether the defendant’s property is needed for the maintenance and support of their immediate family. Based on Hubbard, we find the Sheriff’s fee should be vacated and the matter remanded to the district court for an evidentiary hearing, where the Sheriff’s fee can be calculated in accordance with the applicable statute. Jail costs may be requested at that time and calculated as prescribed in Hubbard, 2002 OK CR 8, I 10.

DECISION

The Judgment of the trial court is AFFIRMED. The Sheriff’s Fees are VACATED and the matter is remanded for an evidentiary hearing, where the Sheriff’s Fees can be calculated in accordance with the applicable statute.

APPEARANCES AT TRIAL

CREGG WEBB
ATTORNEY AT LAW
320 N. BROADWAY ST.
SHAWNEE, OK 74801
ATTORNEY FOR APPELLANT

DAWSON ENGLE
ASST. DISTRICT ATTORNEY
POTTAWATOMIE CO. COURTHOUSE
SHAWNEE, OK 74801

APPEARANCES ON APPEAL

THOMAS PURCELL
OKLAHOMA INDIGENT DEFENSE SYSTEM
1623 CROSS CENTER DR.
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

PATRICK T. CRAWLEY
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEY FOR THE STATE

OPINION BY: STRUBHAR, J.

LUMPKIN, P.J.: CONCUR

JOHNSON, V.P.J.: CONCUR

CHAPEL, J.: CONCUR IN PART/DISSENT IN PART

LILE, J.: CONCUR IN RESULT

RA CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART: I concur in affirming the conviction in this case. I dissent, however, to affirming the sentence. I would modify the sentence to three years.

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Footnotes:

1. Okla. Stat. tit. 21 § 844
2. Okla. Stat. tit. 10 § 7115
3. 28 O.S. 1991 § 101
4. 22 O.S.Supp. 1999 § 979a
5. 22 O.S.Supp. 1999 § 979a (A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 844 - Injury to a Minor Child
• Okla. Stat. tit. 10 § 7115 - Prohibition of Wilful Bodily Injury to a Child
• Okla. Stat. tit. 22 § 979a - Costs of Incarceration
• Okla. Stat. tit. 28 § 101 - Costs of Prosecution

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:

• Pickens v. State, 19 P.3d 866, 878 (Okl.Cr.2001)
• Omalza v. State, 911 P.2d 286, 303 (Okl.Cr.1995)
• Williams v. State, 22 P.3d 702, 730 (Okl.Cr.2001), cert. denied, U.S. 122, S.Ct. 836, 151 L.Ed.2d 716 (2002)
• Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)
• Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
• Hubbard v. State, 2002 OK CR 8, P.3d