Isaac Gardner v The State Of Oklahoma

F-2005-1161

Filed: Mar. 15, 2007

Not for publication

Prevailing Party: Isaac Gardner

Summary

Isaac Gardner appealed his conviction for Forcible Oral Sodomy. Conviction and sentence modified to fifteen years imprisonment. Judge A. Johnson dissented.

Decision

The Judgment of the district court is AFFIRMED. The Sentence is MODIFIED to fifteen years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the introduction of other crimes evidence prejudicial to Appellant's right to a fair trial?
• Did the trial court err by failing to instruct the jury on the 85% Rule, impacting Appellant's sentencing?
• Was Appellant's sentence excessive given the facts and circumstances of the case?

Findings

• The court did not err in allowing the introduction of other crimes evidence.
• The sentence was modified to fifteen years imprisonment.
• Proposition 3 is rendered moot due to the modification of the sentence.

F-2005-1161

Mar. 15, 2007

Isaac Gardner

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, Isaac Gardner, was tried by a jury in Oklahoma County District Court, Case No. CF-2004-891, for Count 1: Forcible Oral Sodomy (21 O.S.Supp.2002, § 888) and Count 2: Attempted Sexual Battery (21 O.S.Supp.2003, § 1123). The jury found Appellant guilty of Count 1 and recommended a sentence of twenty years imprisonment; the jury acquitted Appellant of Count 2. On November 23, 2005, the Honorable Virgil C. Black, District Judge, sentenced Appellant in accordance with the jury’s recommendation, and this appeal followed.

Appellant raises the following propositions of error:
1. The introduction of other crimes evidence deprived Appellant of a fair trial.
2. Because the trial court failed to instruct the jury on the 85% Rule, Appellant’s sentence must be modified, or his case must be reversed and remanded for resentencing.
3. The punishment is excessive, given all the facts and circumstances of the case.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Appellant’s conviction but modify his sentence.

As to Proposition 1, Appellant was charged in Count 2 with attempting to sexually batter a nursing-home patient. In his taped interview with police, Appellant offered an innocent explanation for his actions, but also admitted past instances of sexual assault and battery against other nursing-home patients. Appellant had ample pretrial notice of the State’s intention to offer the interview into evidence, even if not every item discussed therein was specifically delineated in the State’s written notice. Bryan U. State, 1997 OK CR 15, I 34, 935 P.2d 338, 357. The trial court redacted substantial portions of the tape, but permitted evidence of the prior similar incidents, and Appellant’s admission to related sexual predilections, as relevant on the issue of intent in Count 2. The trial court did not abuse its discretion in this regard. 12 O.S.2001, § 2404(B); Bryan, 1997 OK CR 15 at 1 34, 935 P.2d at 357. In any event, we discern no prejudice as the jury acquitted Appellant of Count 2. Harjo v. State, 1994 OK CR 47, I 41, 882 P.2d 1067, 1076. Proposition 1 is denied.

As to Proposition 2, Appellant filed a pretrial motion and supporting brief asking the trial court to instruct the jury that, if convicted on Count 1, Appellant would be required to serve at least 85% of any sentence imposed before being eligible for parole. See 21 O.S.Supp.2002, § 13. (15). Appellant renewed his request before trial, but it was denied. After Appellant’s trial, this Court held that when applicable, such information is in fact relevant to a jury’s punishment determination. Anderson v. State, 2006 OK CR 6, 130 P.3d 273. Given that Appellant timely requested the same type of instruction requested in Anderson, we grant Appellant’s request for a sentence modification and MODIFY his sentence to fifteen years imprisonment. Our disposition of Proposition 2 renders Proposition 3 moot.

DECISION

The Judgment of the district court is AFFIRMED. The Sentence is MODIFIED to fifteen years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.Supp.2002, § 888
2. 21 O.S.Supp.2003, § 1123
3. 12 O.S.2001, § 2404(B)
4. 21 O.S.Supp.2002, § 13(15)
5. Anderson v. State, 2006 OK CR 6, 130 P.3d 273
6. Harjo v. State, 1994 OK CR 47, I 41, 882 P.2d 1067
7. Bryan U. State, 1997 OK CR 15, I 34, 935 P.2d 338

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 888 - Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 1123 - Attempted Sexual Battery
• Okla. Stat. tit. 12 § 2404 - Evidence; admissibility
• Okla. Stat. tit. 21 § 13.15 - Parole; eligibility

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:

• Bryan v. State, 1997 OK CR 15, I 34, 935 P.2d 338, 357
• Harjo v. State, 1994 OK CR 47, I 41, 882 P.2d 1067, 1076
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273