George Luther Carter, III v The State of Oklahoma

F 2005-288

Filed: Jun. 30, 2006

Not for publication

Prevailing Party: George Luther Carter, III.

Summary

George Luther Carter, III, appealed his conviction for Sexual Abuse of a Child. The conviction and sentence were for thirty years in prison. Judge Lumpkin dissented. In this case, George Luther Carter was found guilty by a jury of sexually abusing a child and was given a thirty-year prison sentence. He appealed, arguing that the trial court made mistakes by allowing evidence about other crimes he allegedly committed and letting in a videotape that he believed should not have been shown to the jury. After reviewing the case, the Oklahoma Court of Criminal Appeals decided to reverse Carter's conviction. They explained that the evidence of other crimes was admitted improperly and could have unfairly influenced the jury's decision. The Court determined that the similarities between the past allegations and the current case were not strong enough to allow that evidence. Therefore, they ordered a new trial for Carter, saying that the earlier judgment was not fair because of how that other evidence was handled. In the dissenting opinion, Judge Lumpkin felt that the trial court was correct in allowing the evidence and believed it did not harm Carter’s case.

Decision

The Judgment and Sentence imposed in Lincoln County District Court, Case No. CF 2003-305, is hereby REVERSED AND REMANDED FOR A NEW TRIAL. 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 there an error in allowing evidence of other crimes?
• Did the admission of the videotape constitute harmless error?
• Was the verdict against the clear weight of the evidence?

Findings

• the court erred
• the admission of the videotape was not harmless beyond a reasonable doubt
• the evidence was not sufficient

F 2005-288

Jun. 30, 2006

George Luther Carter, III

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, George Luther Carter, III, was tried by a jury in Lincoln County District Court, Case No. CF 2003-305, for Sexual Abuse of a Child, in violation of 10 O.S.Supp.2002, § 7115. Jury trial was held on February 9, 2005, before the Honorable Paul Vassar, District Judge. The jury found Carter guilty and set punishment at thirty (30) years imprisonment. Carter was sentenced in accordance with the jury’s verdict on March 23, 2005. Thereafter, he filed this appeal. Mr. Carter raises three (3) propositions of error: 1. The trial court erred in allowing evidence of other crimes; 2. Admission of the videotape was not harmless beyond a reasonable doubt; and, 3. The verdict was against the clear weight of the evidence.

After thorough consideration of the propositions raised, the Original Record, transcripts and briefs of the parties, we reverse and remand this case for a new trial for the reasons set forth below.

Prior to trial, the State filed a Burks notice, setting forth its intent to introduce the testimony of S.P. who would testify that on or between January 1, 2000 and December 13, 2001 the Defendant did commit the crime of Rape, First Degree by Instrumentation of a Child Under 14, by using his finger to penetrate S.P.’s vagina. The trial court denied defense counsel’s objection to admission of the evidence based upon the greater latitude rule discussed in Myers v. State, 2000 OK CR 25, 99 21-24, 17 P.3d 1021, 1030. Thereafter, 10 year old S.P. testified that while she, the Defendant, M.P. and Josh played vampire in 2001 or 2002, she and Carter hid in a closet while M.P. and Josh looked for them. S.P. said while they were in the closet, Carter unbuttoned her pants, put his finger between her private parts, kissed her neck, and told her not to tell. S.P. told an adult a year later.

12 O.S.2001, 2404(B) provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. The greater latitude rule, discussed in Myers, provides for more liberal admission of other crimes in sex crime cases in which the victim is a child. In Myers, we recognized the similarities in the evidence of other crimes which were admitted in that case which were probative of motive, intent, and common scheme or plan.

In all three instances Appellant was acquainted with the victim; the victims were lured into automobiles; all of the victims were forcefully and sexually assaulted; the assailant threatened to kill the first two victims and did kill the third. Myers, 2000 OK CR 25, II 19. Another reason for admission was to show motive. Id. at 20. We also expressly noted the procedural safeguards which stand to protect an accused from the admission of unduly prejudicial evidence of other crimes: (1) the evidence must be offered for a proper purpose under § 2404; (2) the evidence must be relevant under § 2402; (3) the probative value of the evidence must outweigh its prejudicial value under § 2403; and (4) if requested, a limiting instruction on the proper use of the evidence must be given. Id. at 25.

The greater latitude rule discussed in Myers does not provide for the admission of any other sex crime allegation against a child without regard to the procedural safeguards set forth in our evidentiary statutes. See Lott v. State, 2004 OK CR 27, 98 P.3d 318 (Court engaged in other crimes analysis, noting the similarity of the other crimes, the distinct method establishing a visible connection between the crimes, and the necessity of the admission of the evidence to support the State’s burden of proof.) While greater latitude may be afforded in permitting other crimes evidence in sexual assault cases involving children, it does not absolve the proponent of the evidence from presenting sufficient facts from which some visible connection between the other crime and the instance crime can be deduced.

To be admissible, evidence of other crimes must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(s) must be necessary to support the State’s burden of proof, proof of the other crime(s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions. Lott, 2004 OK CR 27, I 40, 98 P.3d at 334-335; Welch v. State, 2000 OK CR 8, I 8, 2 P.3d 356, 365.

When other crimes evidence is so prejudicial it denies a defendant his right to be tried for only the offense charged, or where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character, the evidence should be suppressed. Lott, id. at I 41. Where the claim is properly preserved, the State must show on appeal the admission of this evidence did not result in a substantial miscarriage of justice or constitute a substantial violation of a constitutional or statutory right. Id.

Here there were no similarities in the allegation made by S.P. to the offense alleged in this case except the identity of the alleged perpetrator. The offense was a different offense, against a different victim and the alleged act did not prepare the way for the commission of the offense against M.P. It was totally unnecessary to the State’s burden of proof except to show that Carter was a bad person who acted in conformity with this alleged past conduct. The commission of one did not depend upon the commission of the other.

A common scheme or plan is not established by the mere allegation that the accused committed another sexual offense against a child in the past. See Wells v. State, 1990 OK CR 72, 799 P.2d 1128, 1130 (alleged sex crimes against other children related to defendant two, six and nine years earlier, which were factually different to the charged offenses do not qualify for admissibility under the common scheme or plan exception to the general rule of inadmissibility of other crimes evidence). To hold that any other allegation that the defendant had committed a sex crime against a child under the greater latitude rule without more would allow the State to prove appellant’s character to show he acted in conformity therewith and would allow the exception to engulf the rule. Id.

The trial court abused its discretion when it admitted this evidence. H.W. v. State, 1988 OK CR 138, I 9, 759 P.2d 214, 218. We cannot be sure the admission of this testimony did not affect the jury’s verdict. Accordingly, Carter’s conviction for Sexual Abuse of a Child is hereby reversed and remanded for a new trial. Wells, 1990 OK CR 72, 799 P.2d at 1131. Because we grant relief on Proposition One, the remaining propositions of error need not be addressed.

DECISION

The Judgment and Sentence imposed in Lincoln County District Court, Case No. CF 2003-305, is hereby REVERSED AND REMANDED FOR A NEW TRIAL. 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. 10 O.S.Supp.2002, § 7115.
2. 12 O.S.2001, § 2404(B).
3. Myers v. State, 2000 OK CR 25, 99 21-24, 17 P.3d 1021, 1030.
4. Lott v. State, 2004 OK CR 27, 98 P.3d 318.
5. Wells v. State, 1990 OK CR 72, 799 P.2d 1128, 1130.
6. H.W. v. State, 1988 OK CR 138, 759 P.2d 214, 218.
7. Wells v. State, 1990 OK CR 72, 799 P.2d at 1131.
8. Myers v. State, 2000 OK CR 25, I 23, 17 P.3d 1021, 1029.
9. 12 O.S.2001, § 2404(B).

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 - Sexual Abuse of a Child
• Okla. Stat. tit. 12 § 2404(B) - Other Crimes Evidence
• Okla. Stat. tit. 12 § 2402 - Relevance
• Okla. Stat. tit. 12 § 2403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
• Okla. Stat. tit. 22 § 3.15 - Mandate
• Okla. Stat. tit. 21 § 701.8 - Burden of Proof
• Okla. Stat. tit. 22 § 2803.1 - Statements Not Hearsay

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:

• Myers v. State, 2000 OK CR 25, I 21-24, 17 P.3d 1021, 1030
• Lott v. State, 2004 OK CR 27, 98 P.3d 318
• Welch v. State, 2000 OK CR 8, I 8, 2 P.3d 356, 365
• Wells v. State, 1990 OK CR 72, 799 P.2d 1128, 1130
• H.W. v. State, 1988 OK CR 138, I 9, 759 P.2d 214, 218
• Huskey v. State, 1999 OK CR 3, 989 P.2d 1, 7