Terriss Donahue Noble v The State Of Oklahoma

F-2004-1065

Filed: Aug. 12, 2005

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Terriss Donahue Noble appealed his conviction for lewd molestation, forcible oral sodomy, and exhibiting pornography to a minor child. His conviction and sentence were reversed, and a new trial was ordered. Judge C. Johnson dissented.

Decision

The Judgments and Sentences of the District Court are reversed and remanded for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there improper expert testimony regarding the truthfulness of the victim's testimony?
• Did the trial court err by failing to properly instruct the jury on the applicable law?
• Did improper statements made by the prosecutor throughout the trial deprive Mr. Noble of a fair trial?
• Was Mr. Noble's sentence excessive?
• Did the accumulation of errors deprive Mr. Noble of a fair trial?

Findings

• the court erred by allowing improper expert testimony regarding the victim's truthfulness
• the trial court erred by failing to properly instruct the jury on impeachment by prior inconsistent statements
• the prosecutor's improper statements deprived Mr. Noble of a fair trial
• the sentence was not excessive
• the cumulative effect of the errors denied Mr. Noble a fair trial

F-2004-1065

Aug. 12, 2005

Terriss Donahue Noble

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: After a jury trial in Logan County District Court Case No. CF-03-123, CF-03-41, Terriss Noble was convicted of Count I: Lewd Molestation in violation of 21 O.S.2001, § 1123; and Count II: Forcible Oral Sodomy in violation of 21 O.S.2001, § 888 and Count V: Exhibiting Pornography to a Minor Child in violation of 21 O.S.2001, § 1040.76. Following the jury’s recommendation, the Honorable Donald Worthington sentenced Noble to serve the following sentences concurrently: thirty (30) years’ imprisonment for Count I; thirty (30) years’ imprisonment for Count II; and a $500.00 fine for Count V. Noble has perfected his appeal to this Court.

Noble raises the following propositions of error:

I. Mr. Noble was denied a fair trial by the improper expert testimony regarding the truthfulness of the victim’s testimony in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article Two, Section Twenty of the Oklahoma Constitution.

II. The trial court erred by failing to properly instruct the jury on the applicable law in violation of the Sixth and Fourteenth Amendments to the United States Constitution.¹

III. Improper statements made by the prosecutor throughout the trial deprived Mr. Noble of a fair trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

IV. Mr. Noble received an excessive sentence in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article Two, Section Nine of the Oklahoma Constitution.

V. The accumulation of errors deprived Mr. Noble of a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article Two, Section Seven of the Oklahoma Constitution.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and parties’ exhibits, we reverse and remand for a new trial. We find in Proposition V that the cumulative effect of the errors in Propositions I, II, and III denied Noble a fair trial.²

Decision

The Judgments and Sentences of the District Court are reversed and remanded for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

¹ In Proposition I, Child Welfare worker Eileen Dixon improperly testified that in her opinion the victim was truthful. Lawrence U. State, 796 P.2d 1176, 1177 (Okl.Cr. 1990) (error to allow witness in sexual abuse prosecution to testify that victim is truthful). In Proposition II, the trial court erred in denying Noble’s requested instruction on Impeachment by Prior Inconsistent Statements. See Committee Comments, OUJI-CR 2d 9-20 (this instruction should be given in every instance of impeachment, whether requested or not). As in Proposition I, Eileen Dixon testified that the victim’s statements had some inconsistencies. These inconsistencies adequately justified Noble’s request for the instruction. In Proposition III, the prosecutor improperly referred to Noble as a monster. Malicoat U. State, 992 P.2d 383, 401 (Okl.Cr.2000), cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146 (condemning Prosecutor’s reference to defendant as a monster).

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Footnotes:

1. Footnote 1: Noble was acquitted at trial of Counts III, IV, VI, VII and VIII.
2. Footnote 2: In Proposition I, Child Welfare worker Eileen Dixon improperly testified that in her opinion the victim was "truthful." Lawrence U. State, 796 P.2d 1176, 1177 (Okl.Cr. 1990)(error to allow witness in sexual abuse prosecution to testify that victim is truthful).
3. Footnote 3: In Proposition II, the trial court erred in denying Noble's requested instruction on Impeachment by Prior Inconsistent Statements. See Committee Comments, OUJI-CR 2d 9-20 (this instruction "should be given in every instance of impeachment, whether requested or not").
4. Footnote 4: As in Proposition I, Eileen Dixon testified that the victim's statements had some inconsistencies. These inconsistencies adequately justified Noble's request for the instruction.
5. Footnote 5: In Proposition III, the prosecutor improperly referred to Noble as a "monster." Malicoat U. State, 992 P.2d 383, 401 (Okl.Cr.2000), cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146 (condemning Prosecutor's reference to defendant as a "monster").

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 - Lewd Molestation
• Okla. Stat. tit. 21 § 888 - Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 1040.76 - Exhibiting Pornography to a Minor Child

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:

• Lawrence U. State, 796 P.2d 1176, 1177 (Okl.Cr. 1990)
• Malicoat U. State, 992 P.2d 383, 401 (Okl.Cr.2000), cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146