Timothy Ray Belvin v The State Of Oklahoma

F-2008-229

Filed: Jan. 13, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Timothy Ray Belvin appealed his conviction for several serious crimes against children, including child sexual abuse and lewd acts. His conviction was for Counts III, V, VI, VII, VIII, and XI, with life sentences for Counts III and VII, and ten-year sentences for the others, all served at the same time. The court found some of his arguments about his conviction and sentence were not valid, but did agree that there wasn't enough proof for one of the counts (Count XII). Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the district court is AFFIRMED on Counts III, V, VI, VII, VIII and XI. Appellant's Judgment and Sentence on Count XII is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was Mr. Belvin's conviction on Count III barred by the statute of limitations?
• Did the trial court err in overruling the demurrer to the evidence on Count III regarding the requirement for E.P. to masturbate in his presence?
• Did the trial court err in overruling the demurrer to the evidence on Count XII regarding the requirement for B.S. to masturbate in his presence?
• Was Mr. Belvin's conviction on Count VIII barred by the statute of limitations?
• Was there sufficient evidence to support a conviction on Count VIII for Lewd Molestation?
• Did Mr. Belvin receive effective assistance of counsel?
• Was the sentence Appellant received in this case excessive?

Findings

• the statute of limitations did not bar prosecution for Count III
• the trial court did not err in declining to grant Appellant's demurrer to the evidence on Count III
• the trial court erred in not granting Appellant's demurrer to the evidence on Count XII
• the statute of limitations did not bar prosecution for Count VIII
• the evidence was sufficient to support the conviction on Count VIII
• Appellant was not denied effective assistance of counsel
• the sentences imposed were not excessive
• the Judgment and Sentence of the district court is AFFIRMED on Counts III, V, VI, VII, VIII and XI
• Appellant's Judgment and Sentence on Count XII is REVERSED with instructions to DISMISS

F-2008-229

Jan. 13, 2009

Timothy Ray Belvin

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE:

Appellant, Timothy Ray Belvin, was charged in Bryan County District Court, Case No. CF-2004-509, with Child Sexual Abuse (Counts I, II, III and IV), Procuring a Child for Acts Involving Pornography and/or Sexual Gratification (Counts V and VI), Child Sexual Exploitation (Count VII), Lewd Molestation (Counts VIII and X) and Lewd Acts as to a Child Under Sixteen (Counts IX, XI and XII). The non-jury trial was held before the Honorable Richard E. Branam. Counts I, II, IV, IX and X were dismissed. Appellant was convicted on Counts III, V, VI, VII, VIII, XI and XII. The trial court sentenced Appellant to life imprisonment on each of Counts III and VII, and ten years imprisonment on each of Counts V, VI, VIII, XI and XII ordering the sentences to be served concurrently. It is from this Judgment and Sentence that Appellant appeals to this Court.

Appellant raises the following propositions of error:
1. Mr. Belvin’s conviction on Count III must be reversed and dismissed as the statute of limitations barred prosecution for this offense.
2. The trial court erred in overruling defense counsel’s demurrer to the evidence on Count III when the State’s evidence failed to establish, beyond a reasonable doubt, that Mr. Belvin required E.P. to masturbate in his presence.
3. The trial court erred in overruling defense counsel’s demurrer to the evidence on Count XII when the State’s evidence failed to establish, beyond a reasonable doubt, that Mr. Belvin required B.S. to masturbate in his presence.
4. Mr. Belvin’s conviction on Count VIII must be reversed and dismissed as the statute of limitations barred prosecution for this offense.
5. Notwithstanding the argument in Proposition IV, there was insufficient evidence to support a conviction on Count VIII, Lewd Molestation, when the State did not present any evidence that Mr. Belvin touched K.S. in the genital area.
6. Mr. Belvin was denied effective assistance of counsel.
7. The sentence Appellant received in this case was excessive.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Mr. Belvin’s Judgment and Sentence on Counts III, V, VI, VII, VIII and XI and reverse on Count XII.

As to Proposition I, we find that because there was evidence presented at trial that Appellant committed some of the acts charged in Count III after the effective date of the amended statute of limitations in 22 O.S.Supp.2000, § 152(C), the State was not barred from prosecuting this offense and accordingly, Appellant’s conviction for this crime need not be disturbed.

With regard to Proposition II, we find that the evidence, when viewed in the light most favorable to the State, was sufficient to support the crime of Child Sexual Abuse beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 1 7, 709 P.2d 202, 203-04. The trial court did not err in declining to grant Appellant’s demurrer to the evidence on Count III. Morrison v. State, 1990 OK CR 33, I 12, 792 P.2d 1189, 1193.

Appellant’s argument in Proposition III requires relief as there was not sufficient evidence presented to support the crime of Lewd Acts With a Child Under Sixteen committed against B.S. Appellant was charged in this Count under section 1123 of title 21, which includes an element of force that was not sufficiently proven at trial. See Huskey v. State, 1999 OK CR 3, 1 8, 989 P.2d 1, 5. Thus, the trial court erred in not granting Appellant’s demurrer to the evidence on Count XII. Morrison v. State, 1990 OK CR 33, I 12, 792 P.2d 1189, 1193. This Count must be reversed with instructions to dismiss.

Regarding error alleged in Proposition IV, the statute of limitations in effect at the time of the crime was five years but this was from the discovery of the crime, not five years from the commission of the crime. 22 O.S.Supp. 1997, § 152. Thus, Appellant’s argument that the prosecution for this crime occurred longer than five years after the crime was committed does not require relief.

Proposition V does not require relief as the evidence presented at trial was sufficient to support, beyond a reasonable doubt, Appellant’s conviction on Count VIII. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04.

We find in Proposition VI that Appellant was not denied his constitutional right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); 3 Davis v. State, 2005 OK CR 21, I 7, 123 P.3d 243, 246.

In Appellant’s final proposition he claims that his sentences were excessive. Appellant’s sentences were within the range of punishment prescribed by statute. Appellant was convicted of several sex crimes committed against children over several years. Two of the sentences were the maximum allowed but all were run concurrently with each other. The sentences imposed do not shock the conscience of the Court and were not excessive. Rea v. State, 2001 OK CR 28, I 5, n.3, 34 P.3d 148, 149 n.3.

DECISION

The Judgment and Sentence of the district court is AFFIRMED on Counts III, V, VI, VII, VIII and XI. Appellant’s Judgment and Sentence on Count XII is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 22 O.S.Supp.2000, § 152(C)
2. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04
3. Morrison v. State, 1990 OK CR 33, ¶ 12, 792 P.2d 1189, 1193
4. Huskey v. State, 1999 OK CR 3, ¶ 8, 989 P.2d 1, 5
5. 22 O.S.Supp. 1997, § 152
6. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
7. Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246
8. Rea v. State, 2001 OK CR 28, ¶ 5, n.3, 34 P.3d 148, 149 n.3

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Child Sexual Abuse
• Okla. Stat. tit. 21 § 1123 (2011) - Lewd Acts With a Child Under Sixteen
• Okla. Stat. tit. 22 § 152 (1997) - Statute of Limitations
• Okla. Stat. tit. 22 § 152(C) (Supp. 2000) - Amended Statute of Limitations

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:

• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Morrison v. State, 1990 OK CR 33, I 12, 792 P.2d 1189, 1193
• Huskey v. State, 1999 OK CR 3, I 8, 989 P.2d 1, 5
• Davis v. State, 2005 OK CR 21, I 7, 123 P.3d 243, 246
• Rea v. State, 2001 OK CR 28, I 5, n.3, 34 P.3d 148, 149 n.3