Robert Claude McCormick v The State of Oklahoma

F-2007-165

Filed: Apr. 29, 2008

Not for publication

Prevailing Party: Robert Claude McCormick

Summary

Robert Claude McCormick appealed his conviction for Child Sexual Abuse and Child Abuse. Conviction and sentence were life imprisonment for each count, served consecutively. Judge Lumpkin dissented, believing the sentences should be served one after the other as originally decided by the District Court.

Decision

The judgments and sentences are hereby AFFIRMED and the sentences are MODIFIED to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an issue of double jeopardy due to the jury instructions allowing conviction of child abuse based on the same conduct used for child sexual abuse?
• Did the instructions given to the jury result in a multiplicious punishment in violation of the double jeopardy clause?
• Was the error in jury instructions deemed harmless in terms of contributing to the jury's verdict?
• Did the Appellant's two convictions arise from a single act or separate acts?
• Did the analysis under 21 O.S.2001, § 11 support the conviction of two separate crimes based on different actions?
• Did the application of the "same elements" test demonstrate that the offenses of child sexual abuse and child abuse require different proofs?
• Was there a question about the impact of the errors on sentencing?
• Should the sentences be modified to run concurrently instead of consecutively?

Findings

• The court did not err regarding the jury instructions on double jeopardy; the error was harmless.
• The evidence was sufficient to support convictions for both child sexual abuse and child abuse.
• The sentences were modified to be served concurrently.

F-2007-165

Apr. 29, 2008

Robert Claude McCormick

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

PER CURIAM:

Appellant Robert Claude McCormick was tried by jury and convicted of Child Sexual Abuse (Count I) (10 O.S.2001, § 7115(E)) and Child Abuse (Count II) (10 O.S.2001 § 7115(A)), in the District Court of Bryan County, Case No. CF-2002-105. The jury recommended as punishment life imprisonment for each count. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence Appellant now appeals.

Appellant raises the following proposition of error in this appeal:

I. Instructions which allowed the jury to convict Appellant of child abuse on the basis of the same conduct used to support the child sexual abuse count rendered the punishments imposed multiplicious in violation of the double jeopardy clause.

After thorough consideration of this proposition and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal is not required, but modification of the sentence is necessary.

In his sole proposition of error, Appellant claims the jury instructions rendered the punishments imposed multiplicious in violation of the double jeopardy clause. Appellant did not object to the instructions at trial; therefore, this Court reviews for plain error only. *Simpson U. State*, 1994 OK CR 40, 92, 876 P.2d 690, 693. Appellant argues the term sexual abuse is listed within the instructions on both child abuse and child sexual abuse and permitted the jury to convict him of two crimes based on the single act of sexual abuse. Although the instruction on child abuse given in this case was a uniform instruction, specifying sexual abuse as the type of harm inflicted was inappropriate and confusing. Any error in the instruction is subject to a harmless error analysis. See *Ellis v. Ward*, 2000 OK CR 18, 1 4, 13 P.3d 985, 986. For the error to be deemed harmless, the Court must find beyond a reasonable doubt it did not contribute to the jury’s verdict. Id. 2000 OK CR 18, 1 3, 13 P.3d at 986.

In the present case, the error did not contribute to the jury’s verdict. The remaining instructions thoroughly instructed the jury on the crimes of child abuse and child sexual abuse. The evidence clearly showed Appellant committed two separate crimes – child sexual abuse based upon his sexual relationship with the child and child abuse based upon his using the child to help him manufacture methamphetamine. Appellant’s double punishment argument also fails because Appellant’s crimes did not arise out of a single act. The proper analysis of a claim raised under 21 O.S.2001, § 11 is to focus on the relationship between the crimes. If the crimes truly arose out of one act, then Section 11 prohibits prosecution for more than one crime. *Davis v. State*, 1999 OK CR 48, $13, 993 P.2d 124, 126-27. The crime of child sexual abuse was completed when Appellant forced M.K. to have sexual intercourse with him. The child abuse act was completed when Appellant forced M.K. to participate in the making of methamphetamine. Appellant was convicted of two separate and distinct crimes and the actions taken to complete these crimes did not arise out of one act.

Since Appellant’s Section 11 claim fails, this Court looks to a traditional double jeopardy analysis to determine whether double jeopardy was violated. *Jones v. State*, 2006 OK CR 5, 963, 128 P.3d 521, 543. This Court applies the same elements test, i.e., whether each offense requires proof of at least one element that the other does not. *Blockburger v. U.S.*, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). Applying the Blockburger test to Appellant’s case, it is clear the elements of sexual abuse of a child and child abuse are different and require different proof. This proposition is denied.

While we find the error did not affect the verdict of guilt, there is a question of the impact on sentencing. Therefore, the sentences are MODIFIED to be served concurrently.

DECISION

The judgments and sentences are hereby AFFIRMED and the sentences are MODIFIED to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

**APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY**

THE HONORABLE FARRELL M. HATCH, RETIRED ACTIVE DISTRICT JUDGE.

**APPEARANCES AT TRIAL**
STEPHANIE YOUNGE
2200 N.W. 50TH ST., SUITE 121E
OKLAHOMA CITY, OK 73112
COUNSEL FOR APPELLANT

**APPEARANCES ON APPEAL**
ROBERT W. JACKSON
POST OFFICE BOX 5392
NORMAN, OK 73070
COUNSEL FOR APPELLANT
EMILY REDMAN
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
BRYAN COUNTY
JAY SCHNIEDERJAN
DISTRICT ATTORNEY’S OFFICE
117 NORTH THIRD STREET
DURANT, OK 74701
COUNSEL FOR THE STATE

OPINION BY: PER CURIAM

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
C. JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR IN RESULTS

LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the judgments and sentences in this case. However, I must dissent to the Court’s sua sponte decision to modify the sentences to run concurrently. By operation of law, sentences are required to be served consecutively unless the sentencing judge believes there is merit to ordering the sentences to be served concurrently. The trial judge in this case failed to find a legal basis to run the sentences concurrently and I find that was a correct decision under the facts of this case. I would affirm the judgments and sentences as imposed by the District Court.

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Footnotes:

1. 10 O.S.2001, § 7115(E)
2. 10 O.S.2001 § 7115(A)
3. 21 O.S.2001, § 11
4. Davis v. State, 1999 OK CR 48, $13, 993 P.2d 124, 126-27
5. Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)
6. Simpson U. State, 1994 OK CR 40, 92, 876 P.2d 690, 693
7. Ellis v. Ward, 2000 OK CR 18, 1 4, 13 P.3d 985, 986
8. Jones v. State, 2006 OK CR 5, 963, 128 P.3d 521, 543

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115(E) - Child Sexual Abuse
• Okla. Stat. tit. 10 § 7115(A) - Child Abuse
• Okla. Stat. tit. 21 § 11 - Prohibition on Multiple Punishments
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals

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, 92, 876 P.2d 690, 693.
• Ellis v. Ward, 2000 OK CR 18, 1 4, 13 P.3d 985, 986.
• Davis v. State, 1999 OK CR 48, $13, 993 P.2d 124, 126-27.
• Jones v. State, 2006 OK CR 5, 963, 128 P.3d 521, 543.
• Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).