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F-2004-1261

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Jonathan Dwight Harjo v The State Of Oklahoma

F-2004-1261

Filed: May 16, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jonathan Dwight Harjo appealed his conviction for first-degree rape. Conviction and sentence were modified to ten years in prison. Judge Lumpkin dissented regarding the sentence modification.

Decision

The Judgment of the District Court of Tulsa County is AFFIRMED. The Sentence is MODIFIED to ten years imprisonment. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was it reversible error for the trial court to deny Appellant the right to confront the alleged rape victim about prior sexual conduct for the purpose of impeachment?
  • Did the trial court err in admitting a videotape of Appellant's statement to police after the detective had already testified as to the relevant portions of the tape?
  • Was it reversible error to fail to instruct on the lesser offense of sexual battery, or to not require an affirmative waiver of the instruction by Appellant?
  • Did the trial court err in denying Appellant's request for an 85% instruction pursuant to 21 O.S. Supp. 2002 § 13.1?
  • Should Appellant's sentence be modified to ten years in prison, the minimum for first degree rape after former felony conviction?

Findings

  • the court erred in denying the right to confront the alleged rape victim about prior sexual conduct for impeachment
  • the evidence was properly admitted and not unduly cumulative
  • the court did not err in failing to instruct on the lesser offense of sexual battery
  • the court did err in denying the instruction regarding the 85% sentence requirement but this was cured by modifying the sentence
  • the sentence was modified to ten years imprisonment

F-2004-1261

May 16, 2006

Jonathan Dwight Harjo

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Jonathan Dwight Harjo, Appellant, was tried by jury and found guilty of rape in the first degree, in violation of 21 O.S.Supp. 2004 § 1111, after former conviction of a felony, in Tulsa County District Court, Case No. CF-2004-1314. Appellant was represented by counsel. The jury sentenced Appellant to fifteen (15) years imprisonment. The Honorable Jesse S. Harris, District Judge, imposed judgment and sentence according to the jury verdict. Mr. Harjo appeals, raising the following propositions of error:

1. It Was Reversible Error For The Trial Court To Deny Appellant The Right To Confront The Alleged Rape Victim About Prior Sexual Conduct For The Purpose Of Impeachment.
2. It Was Error To Admit A Videotape Of Appellant’s Statement To Police After The Interviewing Detective Had Already Testified As To The Relevant Portions Of The Tape. In The Alternative, Defense Counsel’s Failure To Redact Irrelevant And Prejudicial Portions Of The Tape Constituted Ineffective Assistance Of Counsel.
3. It Was Reversible Error To Fail To Instruct On The Lesser Offense Of Sexual Battery Or, In The Alternative, To Not Require An Affirmative Waiver Of The Instruction By Appellant. Further, Defense Counsel’s Failure To Advise Appellant Of His Right To A Lesser-Included Instruction Constituted Ineffective Assistance Of Counsel In Violation Of The Sixth And Fourteenth Amendments To The United States Constitution.
4. It Was Error For The Trial Court To Deny Appellant’s Request For An 85% Instruction Pursuant To 21 O.S. Supp. 2002 § 13.1.
5. Appellant’s Sentence Should Be Modified To Ten Years In Prison, The Minimum For First Degree Rape After Former Felony Conviction.

In Proposition 1, the Court finds no abuse of discretion in the trial court’s limitation on Appellant’s cross-examination of the complaining witness. Appellant’s constitutional right to confront his accuser was not abridged by the trial court’s ruling. Heavener v. State, 1985 OK CR 109 I 11, 706 P.2d 905, 908. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

In Proposition 2, the Court finds the videotape of Appellant’s statement was properly admitted and not unduly cumulative. 12 O.S. 2001 § 2403. The error, if any, in the admission of the videotape was cured by the trial court’s admonition to the jury. Welch v. State, 2000 OK CR 8 I 26, 2 P.3d 356, 369-370. Appellant cannot show deficient performance or prejudice arising from trial counsel’s failure to seek redaction of the videotape before it was admitted. Davis v. State, 1999 OK CR 16, I 38, 980 P.2d 1111, 1120.

In Proposition 3, the Court finds that Appellant was not entitled to a lesser-included offense instruction on sexual battery. 21 D.S.Supp. 2003 § 1123. Vaughn v. State, 1985 OK CR 29 I 15, 697 P.2d 963, 967. Milligan v. State, 1983 OK CR 113 I 6, 668 P.2d 336, 338. Epley v. State, 1951 OK CR, 2 94 Okl.Cr. 308, 319, 235 P.2d 711, 721. Because Appellant was not entitled to the instruction, Appellant cannot demonstrate that his trial counsel provided deficient representation by failing to advise Appellant of his right to such an instruction. 1 Lockett U. State, 2002 OK CR 30, I 15, 53 P.3d 418, 424.

In Proposition 4, Appellant alleges reversible error in the trial court’s refusal to instruct the jury that Appellant would serve 85% of his sentence for rape. 21 O.S.Supp. 2003 § 13.1. Any prejudice to Appellant from this error is cured by modification of Appellant’s sentence to ten (10) years imprisonment. Anderson V. State, 2006 OK CR 6, P.3d. Modification of Appellant’s sentence renders Proposition 5 moot.

DECISION

The Judgment of the District Court of Tulsa County is AFFIRMED. The Sentence is MODIFIED to ten years imprisonment. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

1 Appellant’s Motion For Supplementation Of The Record And Request To Remand For Evidentiary Hearing is granted to supplement the record with Appellant’s proffered materials. The Application For Evidentiary Hearing is denied.

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Footnotes:

  1. 21 O.S.Supp. 2004 § 1111
  2. 21 O.S.Supp. 2002 § 13.1
  3. 12 O.S. 2001 § 2403
  4. 21 D.S.Supp. 2003 § 1123
  5. 21 O.S.Supp. 2003 § 13.1
  6. Anderson v. State, 2006 OK CR 6, P.3d (Okl.Cr. 2006)
  7. Heavener v. State, 1985 OK CR 109 I 11, 706 P.2d 905, 908
  8. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)
  9. Welch v. State, 2000 OK CR 8 I 26, 2 P.3d 356, 369-370
  10. Davis v. State, 1999 OK CR 16, I 38, 980 P.2d 1111, 1120
  11. Vaughn v. State, 1985 OK CR 29 "I 15, 697 P.2d 963, 967
  12. Milligan v. State, 1983 OK CR 113 I 6, 668 P.2d 336, 338
  13. Epley v. State, 1951 OK CR, 2 94 Okl.Cr. 308, 319, 235 P.2d 711, 721
  14. Lockett v. State, 2002 OK CR 30, I 15, 53 P.3d 418, 424

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1111 (2004) - Rape in the First Degree
  • Okla. Stat. tit. 12 § 2403 (2001) - Relevant Evidence
  • Okla. Stat. tit. 21 § 1123 (2003) - Sexual Battery
  • Okla. Stat. tit. 21 § 13.1 (2003) - Parole and Sentencing

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:

  • Heavener v. State, 1985 OK CR 109, I 11, 706 P.2d 905, 908.
  • Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
  • Welch v. State, 2000 OK CR 8, I 26, 2 P.3d 356, 369-370.
  • Davis v. State, 1999 OK CR 16, I 38, 980 P.2d 1111, 1120.
  • Vaughn v. State, 1985 OK CR 29, I 15, 697 P.2d 963, 967.
  • Milligan v. State, 1983 OK CR 113, I 6, 668 P.2d 336, 338.
  • Epley v. State, 1951 OK CR, 2 94 Okl.Cr. 308, 319, 235 P.2d 711, 721.
  • Lockett v. State, 2002 OK CR 30, I 15, 53 P.3d 418, 424.
  • Anderson v. State, 2006 OK CR 6, P.3d.

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