Anthony Paul Free v The State Of Oklahoma

F-2006-1086

Filed: Feb. 25, 2008

Not for publication

Prevailing Party: Anthony Paul Free

Summary

# Anthony Paul Free appealed his conviction for lewd molestation. Conviction and sentence: life without the possibility of parole. Judge A. Johnson dissented. In this case, Anthony Paul Free was found guilty of lewd molestation of a young girl. The incident happened when he was alone with the girl in a living room. The girl testified that Free touched her inappropriately. The jury convicted him, and he was sentenced to life in prison without a chance for parole. One of the main arguments in the appeal was that the court wrongly allowed evidence of Free's past offenses from twenty years earlier. Free's lawyers argued that this was unfair and not relevant to the current case. The Court of Criminal Appeals agreed, saying that the earlier case didn't have a strong connection to the current charge and that admitting it could prejudice the jury against Free. Because of this mistake, they decided to reverse Free's conviction and order a new trial. However, there were dissenting opinions. Judge A. Johnson agreed that admitting the old evidence was a mistake but believed it didn’t change the fact that the evidence against Free was strong enough to support the conviction. The judge thought the outcome would likely be the same even without the old evidence.

Decision

The Judgment and Sentence of the District Court is REVERSED and REMANDED for a NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeal, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in allowing the introduction of prior acts of child sexual abuse evidence?
• Did the introduction of the prior acts evidence violate the defendant's rights and warrant reversal of the conviction?
• Was the trial court's ruling on the admissibility of the prior acts inconsistent with subsequent case law?
• Did the evidence of prior offenses have a visible connection to the charged crime according to the legal standards established in previous rulings?
• Was there sufficient evidence remaining to support a conviction despite the admission of potentially prejudicial evidence?
• Did the statutory requirement for sentencing eliminate the possibility of any impact from the improperly admitted evidence on the final sentence?

Findings

• the trial court erred in allowing the introduction of prior acts of child sexual abuse as evidence
• the evidence of prior offenses had no visible connection to the current acts
• the admission of the prior acts constituted a substantial violation of a constitutional or statutory right
• the Judgment and Sentence of the District Court is REVERSED and REMANDED for a NEW TRIAL

F-2006-1086

Feb. 25, 2008

Anthony Paul Free

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Anthony Paul Free, was convicted by jury of Lewd Molestation in violation of 21 O.Supp.2004, § 1123, after former conviction of similar offenses,¹ in the District Court of Tulsa County, Case No. CF-2005-5639, before the Honorable Tom C. Gillert, District Judge. In accordance with the jury verdict, Judge Gillert sentenced Free to life without the possibility of parole. From the District Court’s Judgment and Sentence, Free has perfected his appeal to this Court.

FACTS

Free was at the home of Rachell Harper, the adult daughter of his girlfriend, Patricia Leroy, in the evening of December 10, 2005. Also in the house were Harper, her seven-year-old niece, T.H., and Harper’s disabled cousin. Leroy had left the house and Harper was assisting her disabled cousin with a bath. This left Free and T.H. alone in the living room. T.H. said that Free had been tickling her until Leroy left the house. Then, Free stopped tickling and began touching her. She testified that Free touched her breasts, her bottom, and touched her privates. Rachell Harper testified that she stepped from the bathroom to give her cousin some privacy. She entered the living room and saw Free on the couch leaning over T.H. with his hand up her skirt between her legs. Rachell asked T.H. to come help her in the bathroom, in order to get her away. Once T.H. was away from Free, Rachell asked her what was going on. T.H. told Rachell that Free was touching her privates. Rachell then called the police. Rachell admitted that she had been drinking and had taken some prescription medication just prior to this incident, but she denied that she was drunk. She insisted that she was only slightly buzzed.

PROPOSITION OF ERROR

The State was allowed to introduce evidence, over Free’s objection, showing that Free had committed prior acts of child sexual abuse twenty years earlier in Arkansas. In his sole proposition, Free claims that the trial court abused its discretion, and committed reversible error, when it allowed the State to introduce this evidence.² The State presented the testimony of Floyd Hancock, a former police officer from Springdale, Arkansas. Hancock investigated the prior allegations against Free, which involved Free’s nine-year-old nephew. Hancock testified that Free admitted that he allowed his nephew to perform oral sex on him at five separate occasions over a period of months. Hancock prepared a written statement which was signed by Free. This statement was introduced by the State.

² The trial court allowed the statements into evidence under the greater latitude rule announced in Myers v. State, 2000 OK CR 25, ¶ 21-25, 17 P.3d 1021, 1029-30. In doing so, the trial court voiced concerns that the statements would not be admissible pursuant to cases decided prior to Myers.³ In discussing this issue, the trial court was concerned whether Myers would remain settled law. Subsequent to this trial, Myers was found to be unworkable, and thus overruled. While Free’s case was pending appeal, this Court decided James v. State, 2007 OK CR 1, 152 P.3d 255. In James this court rejected the greater latitude rule and held that prior sexual crimes could only be introduced pursuant to 12 O.S.2001, § 2404(B), and our case law decided prior to Myers. James, 2007 OK CR 1, ¶ 4, 152 P.3d 255 at 257. Furthermore, we held that (1) there must be a visible connection between the other crimes evidence and the charged crimes; (2) the evidence must go to a disputed issue and be necessary to support the State’s burden of proof; (3) the probative value of the evidence must outweigh the danger of unfair prejudice; and (4) the evidence must be clear and convincing. James, 2007 OK CR 1, ¶ 3, 152 P.3d 255 at 257; see Bryan v. State, 1997 OK CR 15, ¶ 33, 935 P.2d 338, 356-57.⁴

According to James, in order to be admissible under § 2404(B), there must be a visible connection between the crimes. This visible connection prohibits the introduction of other crimes evidence which merely shows a defendant’s character and his propensity to commit similar acts, which is prohibited by 12 O.S.2001, § 2404(A) and (B). The long-held general rule is that a defendant should be tried on evidence showing guilt of the offense charged, rather than evidence indicating guilt of other unrelated crimes. Burks v. State, 1979 OK CR 10, 594 P.2d 771, 772, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922; Roulston v. State, 1957 OK CR 20, ¶ 11, 307 P.2d 861, 867, citing a long history of cases including Smith v. State, 1911 OK CR 37, 5 Okl.Cr. 67, 113 P. 204 (1911). This rule states the general rule, however, evidence of other crimes may be admissible pursuant to § 2404(B). Still yet, courts must find that the proffered evidence is relevant, and they must balance the admissibility of relevant evidence against certain dangers. See 12 O.S.2001, §§ 2402 and 2403.

In the present case, we find that evidence of Free’s prior offenses have no visible connection to the current acts. In fact, the gender of the victims is different and the acts are different. Furthermore, these prior acts are so remote in time, that there is little probative value for their admission. Our statutes prohibit evidence of a person’s character or a trait of his character offered for the purpose of action in conformity therewith. Other crimes evidence should not be admitted where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character. Bryan, 1997 OK CR 15, ¶ 33, 935 P.2d at 357. The minimal relevance of the other crimes evidence in this case suggests that this evidence is only being offered to show propensity, an improper reason for admission under our statutes. Thus, we find that the trial court improperly ruled on its admission. When erroneous rulings are made that constitute a substantial violation of a constitutional or statutory right, we have no choice but to reverse. See 20 O.S.1991, § 3001.1. The right violated in this case is the fundamental right to be convicted by evidence of the charged offense and not by evidence of similar unrelated offenses. Roulston, 1957 OK CR 20, ¶ 11, 307 P.2d at 867.

DECISION

The Judgment and Sentence of the District Court is REVERSED and REMANDED for a NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeal, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

DAVID PHILLIPS
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY
423 SOUTH BOULDER, SUITE 300
TULSA, OK 74103
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

STEPHEN GREUBEL
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY
423 SOUTH BOULDER, SUITE 300
TULSA, OK 74103
ATTORNEY FOR APPELLANT

JARED SIGLER
W. A. DREW EDMONDSON
JAKE CAIN
ATTORNEY GENERAL
ASSISTANT DISTRICT ATTORNEYS
WILLIAM R. HOLMES
TULSA COUNTY
ASSISTANT ATTORNEY GENERAL
500 SOUTH DENVER
313 N.E. 21ST STREET
TULSA, OK 74103
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE
ATTORNEYS FOR APPELLEE

OPINION BY: LEWIS, J.

LUMPKIN, P.J.: Dissent

C. JOHNSON, V.P.J.: Concur

CHAPEL, J.: Concur

A. JOHNSON, J.: Concur in Part/Dissent in Part

LUMPKIN, PRESIDING JUDGE: DISSENT

I dissent to the Court’s analysis and action in this case and write separately to address this Court’s technical application of James rather than Myers. In formulating the greater latitude rule for the admissibility of other crimes evidence in sexual assault cases, this Court undertook a thorough historical and legal analysis of the issue in Myers. By contrast, the analysis in James is more of an I don’t like it analysis. The federal courts have long had Fed R. Evid. 413, allowing this type of evidence, and now Oklahoma has enacted the same rule of evidence in 21 O.S. Supp. 2007, §§ 2413-2414. The Legislature has now defied the process that is due persons charged with these types of crimes. I would affirm the judgment and sentence in this case.

A. JOHNSON, JUDGE, CONCURS IN PART/DISSENTS IN PART:

I concur that this trial judge erred in admitting evidence of a prior act of child sexual abuse; and I agree with the legal analysis the majority employs in arriving at that conclusion. I dissent, nonetheless, to the reversal of this judgment and sentence. As the majority opinion finds, Free’s confession to police about the sexual abuse he committed against a different child-victim more than twenty years earlier fails to meet the visible connection requirement in James v. State, 2007 OK CR 1, ¶ 3, 152 P.3d 255, 256-57, because there was no connection shown between the acts Free confessed to in 1985 and the act charged in this case. The admission of that evidence was error. That error, however, does not mandate reversal under the facts of this case. Despite some inconsistencies between the victim’s and the aunt’s testimony and despite some attempts by defense counsel to attack the credibility of the eyewitness aunt, I cannot believe the jury’s verdict would have been different if the offending evidence had been excluded in its entirety because the remaining evidence of guilt was strong. See e.g., Edington v. State, 1991 OK CR 21, ¶ 7, 806 P.2d 81, 83 (holding that defendant bears burden of establishing prejudice of any alleged error to warrant reversal); 20 O.S.2001, § 3001.1 ([n]o judgment shall be set aside for error in any matter of pleading or procedure unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right); Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. In this case the child testified about the details of the lewd act committed against her and the child’s aunt corroborated that testimony by providing her own first-hand account of seeing Free’s hand up the victim’s skirt when she entered the living room. Disregarding any issues of witness credibility, this evidence by itself is sufficient to sustain the guilty verdict. Nor would I find reason to modify the sentence in this case. Title 21 O.S.Supp.2004, § 51.1 la provides: [a]ny person convicted of rape in the first degree, forcible sodomy, lewd molestation or sexual abuse of a child after having been convicted of either rape in the first degree, forcible sodomy, lewd molestation or sexual abuse of a child shall be sentenced to life without parole. Because of the operation of that statute upon this case, it is not possible to conclude that the improperly admitted confession had any impact on the sentence even if it is assumed the jury was somehow inflamed by its subject. At the sentencing phase of trial, once the State introduced evidence of Free’s Arkansas conviction for carnal abuse (i.e., the judgment and sentence document and penitentiary records) and the jury determined from that evidence that Free was a prior convicted sex abuser, the jury’s discretion to impose any sentence other than life without parole was extinguished by statute. Regardless of how the jury’s passions may have been inflamed by the confession, its discretion was statutorily cabined into a single sentencing option. Therefore, even if the erroneously admitted confession had not been allowed as evidence, the sentencing result would remain unchanged.

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Footnotes:

1. Apparently Free was sentenced to mandatory life without parole pursuant to 21 O.S.Supp.2004 § 51.1a. However, § 1123 has its own enhancement which is inconsistent with § 51.1a. Because we are reversing Free's conviction and sentence, we need not delve into this morass.
2. The trial court allowed the statements into evidence under the "greater latitude rule" announced in Myers v. State, 2000 OK CR 25, 11 21-25, 17 P.3d 1021, 1029-30.
3. In Myers, this Court did not abandon the general admissibility of evidence tests found in 12 O.S.2001, § 2402 and § 2403, even for sex crimes evidence. See Myers, 2000 OK CR 25, T 25, 17 P.3d at 1030.
4. James, 2007 OK CR 1, 1 4, 152 P.3d 255 at 257.
5. James, 2007 OK CR 1, 1 3, 152 P.3d 255 at 257; see Bryan v. State, 1997 OK CR 15, 1 33, 935 P.2d 338, 356-57.
6. Burks v. State, 1979 OK CR 10, 594 P.2d 771, 772, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922; Roulston v. State, 1957 OK CR 20, T 11, 307 P.2d 861, 867, citing a long history of cases including Smith v. State, 1911 OK CR 37, 5 Okl.Cr. 67, 113 P. 204, (1911).
7. Holding that the other crimes must be probative to the crime charged; there must be a visible connection between the crimes; the evidence of other crimes must be necessary to support the State's burden of proof; proof of the other crimes must be clear and convincing, and the trial court must issue limiting instructions.
8. See 12 O.S.2001, §§ 2402 and 2403.
9. See e.g., Edington v. State, 1991 OK CR 21, ,I 7, 806 P.2d 81, 83.
10. 20 O.S.2001, § 3001.1.
11. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
12. Title 21 O.S.Supp.2004, § 51.1 la provides: [a]ny person convicted of rape in the first degree, forcible sodomy, lewd molestation or sexual abuse of a child after having been convicted of either rape in the first degree, forcible sodomy, lewd molestation or sexual abuse of a child shall be sentenced to life without parole.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2004) - Lewd Molestation
• Okla. Stat. tit. 21 § 51.1a (2004) - Sentence for Certain Sex Offenses
• Okla. Stat. tit. 12 § 2404 (2001) - Character evidence; Crimes; Exceptions
• Okla. Stat. tit. 12 § 2402 (2001) - Relevant evidence
• Okla. Stat. tit. 12 § 2403 (2001) - Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
• Okla. Stat. tit. 20 § 3001.1 (1991) - Error in pleading or procedure
• Okla. Stat. tit. 21 § 2413 (Supp. 2007) - Admissibility of other crimes evidence
• Okla. Stat. tit. 21 § 2414 (Supp. 2007) - Admissibility of prior acts against child molestation or sexual assault

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 20 O.S.1991, § 3001.1 - Error in proceedings
• 21 O.S.Supp.2004, § 51.1a - Sentencing for certain sex crimes

Other citations:

No other rule citations found

Case citations:

• Myers v. State, 2000 OK CR 25, 11 21-25, 17 P.3d 1021, 1029-30
• James v. State, 2007 OK CR 1, 152 P.3d 255
• Bryan v. State, 1997 OK CR 15, 1 33, 935 P.2d 338, 356-57
• Burks v. State, 1979 OK CR 10, 594 P.2d 771, 772
• Roulston v. State, 1957 OK CR 20, 307 P.2d 861, 867
• Smith v. State, 1911 OK CR 37, 5 Okl.Cr. 67, 113 P. 204
• Edington v. State, 1991 OK CR 21, I 7, 806 P.2d 81, 83
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923