Gregory Lynn Bryant v The State of Oklahoma

F-2007-438

Filed: Aug. 22, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gregory Lynn Bryant appealed his conviction for Lewd Molestation. His conviction and sentence were for six years of imprisonment and a $2500 fine. Judge Chapel wrote the opinion, and while Judge Lewis agreed with the results, he did not join in all parts of the opinion. In the appeal, Bryant raised several issues, but the court found that his conviction should be affirmed. However, the court decided that the fine of $2500 should be removed, and the trial court needs to check how much he owes for jail time based only on this case. The court ruled that the prosecution did not wrongly imply Bryant did other bad things, and that the expert testimony used in the trial was appropriate. They concluded that Bryant's appeal did not show he was treated unfairly, except for the fine, which was based on incorrect instructions during the trial.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of six (6) years imprisonment is AFFIRMED. The fine of $2500 is VACATED. The trial court is directed to re-assess jail incarceration fees based on the amount of time, if any, Bryant was incarcerated in this case. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there fundamental error due to the prosecution's insinuation of previous sexual misconduct without evidence?
• Did the improper admission of expert testimony regarding the truthfulness of the key state witness prejudice Bryant?
• Should Bryant receive credit for time served in the county jail or have his court costs, specifically incarceration fees, modified?
• Was the fine assessed against Bryant based on an erroneous jury instruction, warranting vacating or modification?
• Did the trial court err in failing to follow statutory procedures when the jury had a question?
• Did the trial judge commit reversible error by prohibiting the defense expert from testifying about psychological testing performed on Bryant?

Findings

• The court erred in finding that the prosecution did not insinuate that Bryant had committed other crimes.
• The evidence was not sufficient to find that the State's expert witness commented on the victim's truthfulness.
• The trial court did not err in refusing to give Bryant credit for time served.
• The fine of $2500 must be vacated due to an erroneous jury instruction.
• The trial court did not commit reversible error regarding communication with jurors.
• The trial court did not err in prohibiting the defense expert from testifying about psychological testing performed on Bryant.

F-2007-438

Aug. 22, 2008

Gregory Lynn Bryant

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

Gregory Lynn Bryant was tried by jury and convicted of Lewd Molestation in violation of 21 O.S.Supp.2002, § 1123, in the District Court of Tulsa County, Case No. CF-2004-90. In accordance with the jury’s recommendation, the Honorable P. Thomas Thornbrugh sentenced Bryant to six (6) years imprisonment and a $2500 fine. Bryant appeals from this conviction and sentence.

Bryant raises six propositions of error in support of his appeal:

I. Fundamental error occurred when the prosecution insinuated that Bryant had previously engaged in sexual misconduct involving other young girls, without providing any evidence to support these insinuations;

II. Bryant was prejudiced by improper admission of expert testimony as to the truthfulness of the key state witness;

III. This Court should order that Bryant receive credit for time served in the county jail while awaiting trial or, in the alternative, this Court should order that Bryant’s court costs should be modified to exclude incarceration fees for the time he was spent [sic] in the county jail;

1 Bryant was acquitted of the original charge, first degree rape. Bryant had been convicted on that charge in an earlier trial in Pawnee County and received a sentence of thirty years. A Motion for New Trial was granted, as was a change of venue, resulting in this retrial in Tulsa County.

IV. The fine assessed against Bryant was based upon an erroneous jury instruction and thus should be vacated or modified;

V. The trial court erred in failing to follow statutory procedures when the jury had a question; and

VI. The trial judge committed reversible error by prohibiting the defense expert from testifying about the psychological testing he performed on Bryant.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we find that Bryant’s conviction and sentence of imprisonment should be affirmed. The fine of $2500 must be vacated, and the trial court shall re-assess Bryant’s jail incarceration fees.

We find in Proposition I that the prosecution neither insinuated nor claimed that Bryant had committed other crimes.

2 We find in Proposition II that the State’s expert witness did not comment on the victim’s truthfulness. We find in Proposition III that the trial court did not err in refusing to give Bryant credit for time served.

4 We further find that Bryant should not have been assessed jail incarceration fees in this case for any time he spent incarcerated on another charge. A trial court is required to assess jail incarceration costs from a person confined in a city or county jail for an offense, upon conviction of that offense.

5 Incarceration costs, which are the actual costs of the services used by the defendant, are collected by the county court clerk. The statute only allows costs to be recovered from a defendant upon conviction of the offense for which he is incarcerated. According to the record, Bryant was not incarcerated on the rape charge which resulted in this conviction for lewd molestation, but on a different charge. He should not have been assessed jail costs in this case. The trial court is directed to re-assess Bryant’s jail incarceration fees, taking into account only the time, if any, that he was incarcerated on this case.

We find in Proposition IV that the trial court incorrectly instructed jurors there was a mandatory fine for the lesser included offense of lewd molestation. The fine was imposed pursuant to the statute allowing a judge or jury to impose a fine not exceeding $10,000 where no fine is otherwise prescribed. That statute provides that a fine may be imposed, but does not require it. The instruction included a range of possible imprisonment and a fine not to exceed $10,000. Both parties agree this instruction required jurors to impose a fine, although there is no such statutory requirement. The fine of $2500 must be vacated.

We find in Proposition V that Bryant shows no prejudice from the trial court’s failure to follow statutory procedure regarding communication with jurors, and no relief is required.

9 We find in Proposition VI that, as the defendant’s proposed expert testimony was not relevant to any issue of guilt or innocence, and would have been inadmissible character evidence, the trial court did not err in prohibiting it.

10

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of six (6) years imprisonment is AFFIRMED. The fine of $2500 is VACATED. The trial court is directed to re-assess jail incarceration fees based on the amount of time, if any, Bryant was incarcerated in this case. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

JULIE BALL
3606 S. GARY AVENUE
TULSA, OKLAHOMA 74120
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

THOMAS PURCELL
P.O. BOX 926
NORMAN, OKLAHOMA 73070
APPELLATE DEFENSE COUNSEL

LARRY STUART
DISTRICT ATTORNEY
500 HARRISON
PAWNEE, OKLAHOMA 74058
ATTORNEY FOR STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
313 N.E. 21ST STREET
OKLAHOMA CITY, OKLAHOMA 73105
ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR RESPONDENT

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Footnotes:

1. Okla. Stat. tit. 21 § 1123.
2. James U. State, 2007 OK CR 1, 152 P.3d 255, 256-57.
3. Freeman v. State, 1988 OK CR 192, 767 P.2d 1354, 1356.
4. Lawrence v. State, 1990 OK CR 56, 796 P.2d 1176, 1177.
5. Myers v. State, 2006 OK CR 12, 133 P.3d 312, 327; Johnson v. State, 2004 OK CR 25, 95 P.3d 1099, 1104.
6. Holloway v. State, 2008 OK CR 14, 182 P.3d 845, 847.
7. 22 O.S.2001 § 979a(A).
8. 21 O.S.2001 § 64(B).
9. McFarland v. State, No. F-2006-17 (November 14, 2007) (not for publication).
10. 22 O.S.2001 § 894; Harris v. State, 2007 OK CR 28, 164 P.3d 1103, 1109, cert. denied, - U.S. - 128 S.Ct. 1717, 170 L.Ed.2d 524 (2008); Smith v. State, 2007 OK CR 16, 157 P.3d 1155, 1172, cert. denied, U.S. 128 S.Ct. 1232, 170 L.Ed.2d 79 (2008).
11. 12 O.S.2001 § 2404.
12. 12 O.S.2001 § 2401.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2002) - Lewd Molestation
• Okla. Stat. tit. 22 § 979a(A) (2001) - Incarceration Costs
• Okla. Stat. tit. 21 § 64(B) (2001) - Imposition of Fine
• Okla. Stat. tit. 22 § 894 (2001) - Jury Communication Procedures
• Okla. Stat. tit. 12 § 2404 (2001) - Character Evidence
• Okla. Stat. tit. 12 § 2401 (2001) - Relevant Evidence

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:

• James U. State, 2007 OK CR 1, 152 P.3d 255, 256-57.
• Freeman v. State, 1988 OK CR 192, 767 P.2d 1354, 1356.
• Lawrence v. State, 1990 OK CR 56, 796 P.2d 1176, 1177.
• Myers v. State, 2006 OK CR 12, 133 P.3d 312, 327.
• Johnson v. State, 2004 OK CR 25, 95 P.3d 1099, 1104.
• Holloway v. State, 2008 OK CR 14, 182 P.3d 845, 847.
• McFarland v. State, No. F-2006-17 (November 14, 2007) (not for publication).
• Harris v. State, 2007 OK CR 28, 164 P.3d 1103, 1109, cert. denied, - U.S. - 128 S.Ct. 1717, 170 L.Ed.2d 524 (2008).
• Smith v. State, 2007 OK CR 16, 157 P.3d 1155, 1172, cert. denied, U.S. 128 S.Ct. 1232, 170 L.Ed.2d 79 (2008).