Peggy L. Caves v The State Of Oklahoma

F-2006-301

Filed: May 10, 2007

Not For Publication

Prevailing Party: Peggy L. Caves

Summary

Peggy L. Caves appealed her conviction for Neglect by Caretaker. Conviction and sentence were modified to a $7,500 fine. Judge Lumpkin dissented regarding the modification of the sentence.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is MODIFIED to reflect a fine of $7,500. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to convict Caves of neglect by caretaker as charged?
• Was there a fatal variance between the facts alleged and proved, resulting in a denial of due process?
• Did instructional error deny the jury proper guidance for the required elements and theory of defense?
• Was the absolute exclusion of the defense expert witness unwarranted and did it deny Caves a meaningful opportunity to present a complete defense?
• Did improper testimony regarding the outcome of a related civil nursing negligence proceeding invade the province of the jury and deny Caves a fair trial?
• Did the trial court abuse its discretion in refusing defense challenges for cause of a prospective juror, thereby denying Caves a fair trial?
• Did prejudicial evidence of uncharged purported violations of the Nursing Practice Act prior to delivery of any patient care contribute to Caves's conviction and the excessive fine imposed?
• Did trial error and the interest of justice require favorable modification of Caves's $10,000 fine?
• Did prosecutorial misconduct deny Caves a fair trial and result in an excessive sentence?
• Did the cumulative effect of all the errors addressed above deprive Caves of a fair trial?

Findings

• Evidence was sufficient to convict Caves of neglect by caretaker.
• No fatal variance existed between the crime charged and the evidence presented at trial.
• The trial court did not abuse its discretion in failing to instruct on the laws regarding Do Not Resuscitate Orders.
• The trial court did not abuse its discretion in excluding the defense expert witness.
• Improper testimony regarding the civil lawsuit was irrelevant and prejudicial, contributing to the modification of Caves's sentence.
• The trial court should have removed juror 3, but the error did not require relief.
• The expert testimony on nursing standard of care was appropriate and did not amount to other crimes evidence.
• Some error in closing argument was cured; however, prejudicial argument contributed to the modification of Caves's sentence.
• The prosecutor's appeal to jurors' sympathy was error, justifying modification of the fine.
• The cumulative effect of the errors addressed did not require further relief beyond the modification of the sentence.

F-2006-301

May 10, 2007

Peggy L. Caves

Appellant

v

The State Of Oklahoma

Appellee

OPINION

SUMMARY OPINION

Peggy L. Caves was tried by jury and convicted of Neglect by Caretaker in violation of 21 O.S.Supp.2002, § 843.1, in the District Court of Choctaw County, Case No. CF-2004-76. In accordance with the jury’s recommendation, the Honorable Gary L. Brock, Special Judge, sentenced Caves to a $10,000 fine. Caves appeals from this conviction and sentence. Caves raises ten propositions of error in support of her appeal:

I. There was insufficient evidence to convict Caves of neglect by caretaker as charged;
II. There was a fatal variance between the facts alleged and proved, resulting in a denial of due process;
III. Instructional error denied the jury proper guidance for the required elements and theory of defense;
IV. Absolute exclusion of the defense expert witness was unwarranted and denied Caves a meaningful opportunity to present a complete defense;
V. The province of the jury was invaded by improper testimony regarding the outcome of a related civil nursing negligence proceeding, which denied Caves a fair trial;
VI. The trial court abused its discretion in refusing defense challenges for cause of a prospective juror, thereby denying Caves a fair trial;
VII. Prejudicial evidence of uncharged purported violations of the Nursing Practice Act prior to delivery of any patient care contributed to Caves’s conviction and the excessive fine imposed;
VIII. Trial error and the interest of justice require favorable modification of Caves’s $10,000 fine;
IX. Prosecutorial misconduct denied Caves a fair trial and resulted in an excessive sentence; and
X. The cumulative effect of all the errors addressed above deprived Caves of a fair trial.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that the law and evidence require modification of Caves’s sentence.

We find in Proposition I that any rational trier of fact could find beyond a reasonable doubt that Caves neglected an incapacitated adult who was entrusted to her care. We find in Proposition II that no fatal variance existed between the crime charged in the Information and the evidence presented at trial. We further find that the Information, evidence at preliminary hearing, and discovery clearly put Caves on notice that she was also being charged with neglect for failing to suction Hick’s trachea tube.

We find in Proposition III that the trial court did not abuse its discretion in failing to instruct on the laws regarding Do Not Resuscitate Orders, Advance Directives, and terminally ill patients, where no evidence supported such instruction. We find in Proposition IV that the trial court did not abuse its discretion in concluding that the defense failure to provide discovery was willful, motivated by a desire to obtain tactical advantage, and denied the State an opportunity to rebut proposed expert testimony.

We find in Proposition V that Benjamin Barnes did not testify as an expert, and the substance of his testimony did not invade the province of the jury. However, his testimony regarding the civil suit against Caves’s employer was both irrelevant and prejudicial, and contributes to our decision to modify Caves’s sentence. We find in Proposition VI that, while the trial court should have removed juror Parker, Caves failed to preserve this error by showing that, as a result of this error, she was forced to use a peremptory challenge and keep an unacceptable juror. The error does not require relief.

We find in Proposition VII that the expert testimony on nursing standard of care was appropriate and did not amount to other crimes evidence. We conclude that some error in closing argument was cured when Caves’s objection was sustained and the jury admonished. However, we find that prejudicial argument encouraging jurors to sympathize with the victim contributes to our decision to modify Caves’s sentence.

In Proposition VIII, Caves argues that her sentence, a $10,000 fine, is excessive. Caves did not receive a sentence of imprisonment, but she received the maximum fine. In Propositions V, we conclude that jurors heard irrelevant testimony regarding a civil suit which stemmed from this incident, which may have influenced jurors’ determination of the amount of the fine.

In Proposition IX we conclude that the prosecutor’s appeal to jurors’ sympathy was error. These errors warrant modification of Caves’s fine to $7,500.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is MODIFIED to reflect a fine of $7,500. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, 1041-42.
2. Patterson v. State, 2002 OK CR 18, 45 P.3d 925, 931.
3. Parker U. State, 1996 OK CR 19, 917 P.2d 980, 986.
4. Jones v. State, 2006 OK CR 5, 128 P.3d 521, 539.
5. Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).
6. Rojem v. State, 2006 OK CR 7, 130 P.3d 287, 297; White U. State, 1998 OK CR 69, 973 P.2d 306, 312; Allen U. State, 1997 OK CR 44, 944 P.2d 934, 937; Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988).
7. Rojem v. State, 2006 OK CR 7, 130 P.3d 287, 295; Jones v. State, 2006 OK CR 17, 134 P.3d 150, 155; Browning v. State, 2006 OK CR 8, 134 P.3d 816, 829, cert. denied, 127 S.Ct. 406, 166 L.Ed.2d 288 (2006).
8. McCarty v. State, 1995 OK CR 48, 904 P.2d 110, 123.
9. Rojem v. State, 2006 OK CR 7, 130 P.3d 287, 295; Jones v. State, 2006 OK CR 17, 134 P.3d 150, 155; Browning v. State, 2006 OK CR 8, 134 P.3d at 839.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.1 - Neglect by Caretaker
• Okla. Stat. tit. 63 § 3131.4 - Do Not Resuscitate Act

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:

• Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, 1041-42.
• Patterson v. State, 2002 OK CR 18, 45 P.3d 925, 931.
• Davis v. State, 1990 Okl.Cr. 20, 792 P.2d 76, 80.
• Parker v. State, 1996 OK CR 19, 917 P.2d 980, 986.
• Jones v. State, 2006 OK CR 5, 128 P.3d 521, 539.
• Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000).
• Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).
• Rojem v. State, 2006 OK CR 7, 130 P.3d 287, 297.
• White v. State, 1998 OK CR 69, 973 P.2d 306, 312.
• Allen v. State, 1997 OK CR 44, 944 P.2d 934, 937.
• Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988).
• Browning v. State, 2006 OK CR 8, 134 P.3d 816, 829, cert. denied, 127 S.Ct. 406, 166 L.Ed.2d 288 (2006).
• McCarty v. State, 1995 OK CR 48, 904 P.2d 110, 123.