David Lynn Nelson v The State Of Oklahoma

F 2004-1198

Filed: Aug. 15, 2006

Not for publication

Prevailing Party: State Of Oklahoma

Summary

David Lynn Nelson appealed his conviction for rape and sodomy. Conviction and sentence were upheld, but one charge was dismissed. Judge Lumpkin dissented on the dismissal of that charge.

Decision

The Judgment and Sentence of the trial court on Counts 1, 7 and 9 is AFFIRMED. Count 3 is REVERSED with INSTRUCTIONS to DISMISS. The Judgment of the trial court on Counts 2, 4, 5, 6 and 8 is AFFIRMED and the sentences on those counts is MODIFIED to 45 years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was Nelson denied effective assistance of trial counsel?
• was Nelson prejudiced by the omission of an instruction on the 85% Rule?
• was the evidence sufficient to prove forcible oral sodomy alleged in Count 3?
• did Nelson's nine convictions violate the Double Jeopardy Clause and Oklahoma's statutory prohibition against multiple punishments for a single act?

Findings

• the court erred in failing to instruct the jury on the 85% Rule, resulting in a modification of the life sentences to 45 years imprisonment
• the evidence was insufficient to uphold the conviction for forcible oral sodomy in Count 3, resulting in reversal and instructions to dismiss
• the judgments and sentences on Counts 1, 2, 4, 5, 6, 7, 8, and 9 are affirmed, with the sentences for Counts 2, 4, 5, 6, and 8 modified to 45 years imprisonment
• the appellant was not denied effective assistance of trial counsel
• the convictions do not violate the Double Jeopardy Clause or Oklahoma's statutory prohibition against multiple punishments for a single act

F 2004-1198

Aug. 15, 2006

David Lynn Nelson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: David Lynn Nelson, Appellant, was tried by jury in the District Court of Tulsa County, Case No. CF-2003-5705, and convicted of two counts of Rape by Instrumentation (counts 1 and 7)(21 O.S.2001, § 1111.1), four counts of Forcible Oral Sodomy (counts 2, 3, 5 and 8)(21 O.S.Supp.2002, § 888), two counts of First Degree Rape (counts 4 and 6)(21 O.S.Supp.2002, § 1111 and 21 O.S.2001, § 1114) and one count of Attempted Rape (count 9)(21 O.S.2001, § 42; 21 O.S.Supp.2002, § 1111), each after former conviction of four prior felonies. The jury fixed punishment at 40 years imprisonment and a $5,000.00 fine on counts 1, 7 and 9 and life imprisonment and a $10,000.00 fine on all other counts. The Honorable Caroline E. Wall sentenced Nelson accordingly and ordered the sentences to run concurrently. From this judgment and sentence, he appeals.

Nelson raises four claims of error:

1. He was denied effective assistance of trial counsel;
2. He was prejudiced by the omission of an instruction on 21 D.S.Supp. 2002, § 13.1 (the 85% Rule);
3. The evidence was insufficient to prove forcible oral sodomy alleged in Count 3; and
4. His nine convictions violate the Double Jeopardy Clause and Oklahoma’s statutory prohibition against multiple punishments for a single act (21 O.S.2001, § 11).

As for his first claim, Nelson has not proved trial counsel was ineffective for making strategic decisions about impeaching the victim, about foregoing lesser included offense instructions, nor for failing to object to indirect vouching of the victim, an extra-judicial identification, or to the admission of other crimes evidence. His fourth claim is also without merit. Nelson’s nine convictions neither violate 21 O.S.2001, § 11A nor the Double Jeopardy Clause because the crimes are separate and distinct and require dissimilar proof.

Nelson’s second and third propositions merit further discussion.

**Instruction on the 85% Rule**

Nelson asks this Court to modify his sentence because the trial court refused to instruct the jury that he would be parole ineligible until he served 85% of any sentence imposed for these crimes. The trial court refused defense counsel’s proposed instruction on 21 O.S.Supp.2002, § 13.1. This Court has held it is error not to give an instruction on the 85% Rule, when requested, so that jurors have accurate information about sentencing. Nelson was sentenced to life in prison and a $10,000 fine for counts 2, 3, 4, 5, 6 and 8 and, 40 years in prison and a $5,000 fine for counts 1, 7 and 9, all to run concurrently with each other. The jury did send out a note seeking information about how much time Nelson would serve. The questions were not answered. To remedy any adverse effect of failing to instruct the jury on the 85% Rule, we modify Nelson’s life sentences to 45 years in prison and leave undisturbed his 40 year sentences.

**Sufficiency of the Evidence**

Nelson argues his forcible sodomy conviction in Count 3 must be reversed because the State failed to prove penetration. We review claims challenging the sufficiency of the evidence by considering the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Any sexual penetration, however slight, is sufficient to satisfy the penetration element for forcible sodomy. Evidence that establishes slight penetration varies from case to case. The victim never testified specifically that Nelson penetrated her vagina during the act of cunnilingus alleged in Count 3. Instead, she said that he moved to where he was orally going down on me and that his mouth was on her vagina. This case is indistinguishable from previous cases. Count 3 must be reversed with instructions to dismiss.

DECISION

The Judgment and Sentence of the trial court on Counts 1, 7 and 9 is AFFIRMED. Count 3 is REVERSED with INSTRUCTIONS to DISMISS. The Judgment of the trial court on Counts 2, 4, 5, 6 and 8 is AFFIRMED and the sentences on those counts is MODIFIED to 45 years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 1111.1
2. 21 O.S.Supp.2002, § 888
3. 21 O.S.Supp.2002, § 1111
4. 21 O.S.2001, § 1114
5. 21 O.S.2001, § 42
6. 21 O.S.Supp.2002, § 1111
7. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Davis v. State, 2005 OK CR 21, 1 7, 123 P.3d 243, 246.
8. Jones v. State, 2006 OK CR 5, 1 63, 128 P.3d 521, 542; McElmurry U. State, 2002 OK CR 40, 1 80, 60 P.3d 4, 24; Davis U. State, 1999 OK CR 48, 1 13, 993 P.2d 124, 126.
9. Anderson v. State, 2006 OK CR 6, 1111-13, 130 P.3d 273, 278.
10. 21 O.S.2001, § 887
11. Hicks U. State, 1986 OK CR 7, 18, 713 P.2d 18, 20.
12. Riley v. State, 1997 OK CR 51, I 7, 947 P.2d 530, 532.
13. Hicks, 1986 OK CR 7, 1 9, 713 P.2d at 20.
14. Easlick v. State,2004 OK CR 21, I 15, 90 P.3d 556, 559.
15. Anderson, 2006 OK CR 6, I 25.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111.1 (2001) - Rape by Instrumentation
• Okla. Stat. tit. 21 § 888 (Supp. 2002) - Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 1111 (Supp. 2002) - First Degree Rape
• Okla. Stat. tit. 21 § 1114 (2001) - Penalties for Rape
• Okla. Stat. tit. 21 § 42 (2001) - Attempted Rape
• Okla. Stat. tit. 21 § 13.1 (Supp. 2002) - 85% Rule
• Okla. Stat. tit. 21 § 11 (2001) - Prohibition Against Multiple Punishments
• Okla. Stat. tit. 21 § 887 (2001) - Forcible Sodomy

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:

• Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Davis v. State, 2005 OK CR 21, 1 7, 123 P.3d 243, 246
• Jones v. State, 2006 OK CR 5, 1 63, 128 P.3d 521, 542
• McElmurry v. State, 2002 OK CR 40, 1 80, 60 P.3d 4, 24
• Davis v. State, 1999 OK CR 48, 1 13, 993 P.2d 124, 126
• Anderson v. State, 2006 OK CR 6, 1111-13, 130 P.3d 273, 278
• Jones v. State, 2006 OK CR 5, 9 32, 128 P.3d 521
• Hicks v. State, 1986 OK CR 7, 18, 713 P.2d 18, 20
• Riley v. State, 1997 OK CR 51, I 7, 947 P.2d 530, 532
• Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559