F-2004-971

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Donald Eugene Stevenson v State Of Oklahoma

F-2004-971

Filed: Feb. 6, 2006

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Donald Eugene Stevenson appealed his conviction for Child Abuse. His conviction and sentence were modified to life imprisonment. Judge Lewis dissented.

Decision

The Judgment is AFFIRMED. The Sentence is MODIFIED to life imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was there improper admission of cumulative victim impact evidence that required a new trial or modification of the sentence?
  • Did the admission of irrelevant and improper evidence regarding Appellant's potential sentence contribute to an inflated sentence?
  • Did the cumulative effect of the errors during the trial deprive Appellant of a fair trial?

Findings

  • the trial court did not err in admitting testimony regarding the victim's medical condition and day-to-day care
  • the trial court did err in admitting certain details of Appellant's prior convictions
  • Appellant's sentence is modified to life imprisonment
  • the judgment is affirmed


F-2004-971

Feb. 6, 2006

Donald Eugene Stevenson

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE: Appellant Donald Eugene Stevenson was tried by jury and convicted of Child Abuse (10 O.S. Supp. 2002, § 7115), After Former Conviction of Two or More Felonies, Case No. CF-2003-457 in the District Court of Pottawatomie County. The jury recommended as punishment one hundred (100) years plus three (3) months imprisonment. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. Admission of cumulative victim impact evidence including a highly prejudicial video tape of the victim’s recovery and day-to-day care necessitates a new trial or a favorable modification of the resulting inflated sentence.

II. Irrelevant and improper evidence and instruction indicating Appellant might serve less time than the jury imposed resulted in an inflated sentence.

III. The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence, reversal is not warranted but the sentence should be modified.

In Proposition I, we review only for plain error as Appellant raised no objections to the testimony of witnesses Caplinger and Mills. Their testimony as to the victim’s medical condition at the time of trial and his day-to-day care was relevant to show the extent of the victim’s injuries. The testimony was not cumulative to that of Dr. Stuemky, who saw the victim for only two days while at Children’s Hospital. Further, this was not victim impact evidence as provided for in 22 O.S.2001, § 984. Therefore, the trial court did not abuse its discretion in admitting the testimony and we find no plain error. The trial court also did not abuse its discretion in admitting a videotape of visits with the victim at the Children’s Center. The videotape in this case was relevant in showing the extent of the victim’s injuries and the extent of the harm suffered by the victim at the hands of Appellant. The tape corroborated the testimony of Caplinger and Mills, and it corroborated Dr. Stuemky’s testimony that the baby’s injuries were such that they could not have been caused accidentally. Appellant’s agreement that the baby suffered massive severe injuries does not make the tape inadmissible as it remains the State’s burden to prove the corpus deliciti of the crime and the videotape is relevant for that purpose. While the videotape is admittedly prejudicial, that prejudice does not outweigh its probative value. Additionally, counsel was not ineffective for failing to object to the testimony of Caplinger and Mills as their testimony was properly admitted. Therefore, any objection by counsel would have been overruled.

In Proposition II, we find plain error occurred in the trial court’s admission of State’s Exhibits 10 and 11. These exhibits included inadmissible details of Appellant’s prior convictions. This evidence improperly influenced the jury to recommend an excessive sentence. Accordingly, Appellant’s sentence is modified to life imprisonment.

In Proposition III, the only error in this case is the admission of certain irrelevant details of Appellant’s prior convictions. Appellant’s sentence has been modified accordingly. No further relief is necessary.

DECISION

The Judgment is AFFIRMED. The Sentence is MODIFIED to life imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 1 18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

OPINION BY: LUMPKIN, V.P.J.
CHAPEL, P.J.: CONCUR
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

RB 1 While I question the appropriateness of modifying a sentence of a term of years to life imprisonment, I accede to the decision of the majority in this case.

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Footnotes:

  1. 10 O.S. Supp. 2002, § 7115
  2. 22 O.S.2001, § 984
  3. Okla. Stat. tit. 22 § 2402
  4. Phillips U. State, 1999 OK CR 38, II 48, 989 P.2d 1017, 1033
  5. 12 O.S.2001, § 2402
  6. Cooper U. State, 1991 OK CR 26, II 16, 806 P.2d 1136, 1139
  7. Bean v. State, 1964 OK CR 59, 392 P.2d 753

Oklahoma Statutes citations:

  • Okla. Stat. tit. 10 § 7115 - Child Abuse
  • Okla. Stat. tit. 22 § 984 - Victim Impact Evidence
  • Okla. Stat. tit. 12 § 2402 - Relevant Evidence
  • Okla. Stat. tit. 21 § 701.8 - Prior Convictions
  • Okla. Stat. tit. 21 § 701.10 - Enhancements for Certain Offenses

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:

  • Simpson v. State, 1994 OK CR 40, I 11, 876 P.2d 690, 693
  • Jackson v. State, 2001 OK CR 37, I 1, 41 P.3d 395, 401, fn. 3
  • Fox v. State, 1976 OK CR 307, I 11, 556 P.2d 1281, 1283
  • Ledbetter v. State, 1997 OK CR 5, II 24, 933 P.2d 880, 889-890
  • Cargle v. State, 1995 OK CR 77, I 76, 909 P.2d 806, 828
  • Perryman v. State, 1999 OK CR 39, II 14, 990 P.2d 900, 905
  • Williams v. State, 2001 OK CR 9, II 94, 22 P.3d 702, 724
  • Duckett v. State, 1995 OK CR 61, II 27, 919 P.2d 7, 16
  • Phillips v. State, 1999 OK CR 38, II 48, 989 P.2d 1017, 1033
  • Cooper v. State, 1991 OK CR 26, II 16, 806 P.2d 1136, 1139
  • Bean v. State, 1964 OK CR 59, 392 P.2d 753