Valenta E. Thompson v The State Of Oklahoma

F-2008-60

Filed: May 21, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Valenta E. Thompson appealed his conviction for multiple crimes, including First Degree Rape and Kidnapping. The court upheld his sentences for most counts, giving him life imprisonment for the serious charges and shorter jail terms for the lesser ones. However, they decided that the convictions for Anal Sodomy and Witness Intimidation were incorrect because the jury wasn't properly instructed on what needed to be proven for those charges. Judge Lumpkin disagreed with part of the decision.

Decision

The Judgements and Sentences on Counts II, VI, VII, VIII, and IX are AFFIRMED. The Judgments and Sentences on Counts IV and XI are REVERSED and REMANDED for proceedings consistent with this Opinion. 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 Thompson denied due process of law in the convictions on Count IV - Anal Sodomy, and Count XI - Witness Intimidation, by the trial court's failure to instruct the jury on the essential elements of the charges?
• Was the evidence insufficient to support Thompson's conviction on Count II - Rape in the First Degree?
• Must the sentences on Counts II and IX be vacated or modified because they are based on erroneous jury instructions as to punishment?
• Was Thompson denied due process and a fair trial by the SANE nurse's testimony, which exceeded acceptable limits of forensic science and comprised plain error?
• Should Thompson's conviction on Count IV be reversed because the Information failed to allege a valid offense under Oklahoma law, and Thompson received no notice of any other offense based on the allegations of Count IV?
• Was Thompson prejudiced by the prosecutor's improper questioning of a prosecution witness and the court's error in allowing testimony regarding plea discussions?
• Did the prosecutor's argument mislead the jurors to believe they had a duty to "enforce the law" by convicting Thompson?
• Was Thompson prejudiced by ineffective assistance of counsel?
• Should Thompson's conviction on Count XI - Witness Intimidation be reversed with instructions to dismiss, based on insufficient evidence?
• Did Thompson's conviction on Count XI - Witness Intimidation violate constitutional and statutory protections against double jeopardy and double punishment?
• Should Thompson be granted relief based on cumulative error?

Findings

• The trial court erred by failing to instruct the jury on the elements of Count IV (Anal Sodomy).
• The trial court erred by failing to instruct the jury on the elements of Count XI (Witness Intimidation).
• The evidence was sufficient to support the conviction on Count II (Rape in the First Degree).
• The jury instructions regarding punishment for Counts II and IX were not erroneous.
• The trial court erred by allowing improper testimony regarding plea discussions, but this error did not warrant relief.
• The prosecutor's questioning did not mislead the jurors regarding their duty to convict.
• The claim of ineffective assistance of counsel was rejected.
• The conviction on Count XI (Witness Intimidation) was based on insufficient evidence and must be reversed.
• The conviction on Count IV (Anal Sodomy) was reversed and remanded for further proceedings.
• No cumulative error warrants relief.

F-2008-60

May 21, 2009

Valenta E. Thompson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE:

Valenta E. Thompson was tried by jury and convicted of Count II, First Degree Rape in violation of 22 O.S.Supp.2006 § 1111; Count IV, Sodomy (Anal) in violation of 21 O.S.Supp.2002, § 886; Count VI, Kidnapping in violation of 21 O.S.Supp.2004 § 741; Counts VII and VIII, Assault and Battery (Misdemeanor) in violation of 21 O.S.Supp.2006, § 644; Count IX, Sodomy (Oral) in violation of 21 O.S.Supp.2002, § 886; and Count XI, Intimidation of a Witness in violation of 21 O.S.2001, § 455, all after former conviction of two or more felonies, in the District Court of Muskogee County, Case No. CF-2006-7541.

In accordance with the jury’s recommendation, the Honorable Michael Norman sentenced Thompson to life imprisonment on each of Counts II, IV, VI, and IX; ninety (90) days incarceration in each of Counts VII and VIII; and thirty (30) years imprisonment (Count XI), all sentences to run concurrently. Thompson appeals from these convictions and sentences. Thompson raises eleven propositions of error in support of his appeal:

I. Thompson was acquitted of Counts I, III, V, and X.

II. Thompson was denied due process of law in the convictions on Count IV – Anal Sodomy, and Count XI – Witness Intimidation, by the trial court’s failure to instruct the jury on the essential elements of the charges;

III. The evidence was insufficient to support Thompson’s conviction on Count II – rape in the First Degree;

IV. The sentences on Counts II and IX must be vacated or modified because they are based on erroneous jury instructions as to punishment;

V. Thompson was denied due process and a fair trial by the SANE nurse’s testimony, which exceeded acceptable limits of forensic science and comprised plain error;

VI. Thompson’s conviction on Count IV should be reversed because the Information failed to allege a valid offense under Oklahoma law, and Thompson received no notice of any other offense based on the allegations of Count IV;

VII. Thompson was prejudiced by the prosecutor’s improper questioning of a prosecution witness and the court’s error in allowing testimony regarding plea discussions;

VIII. The prosecutor’s argument misled the jurors to believe they had a duty to enforce the law by convicting Thompson;

IX. Thompson was prejudiced by ineffective assistance of counsel;

X. Thompson’s conviction on Count XI – Witness Intimidation should be reversed with instructions to dismiss, based on insufficient evidence;

XI. Thompson’s conviction on Count XI – Witness Intimidation violates constitutional and statutory protections against double jeopardy and double punishment; and

XII. Thompson should be granted relief based on cumulative error.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we find that Counts IV and XI must be reversed and remanded. No further relief is required.

In Proposition I, Thompson correctly claims that the jury was not instructed on the elements of either Count XI or Count IV. A defendant has a right to have the jury instructed on, and be convicted by proof beyond a reasonable doubt of, each element of the crime. Failure to instruct the jury on the elements of each charged crime may constitute plain error. The State concedes the error as to Count XI. Regarding Count IV, the State admits jurors were not instructed on the elements of anal sodomy but argues that the instruction on forcible oral sodomy, plus the evidence at trial, was sufficient to inform jurors of the elements of anal sodomy. There may have been enough evidence to support the charge, but the jury had no guidance as to how that evidence should be applied. Jurors did not know what the elements were, so could not have found they existed. The State’s arguments are unpersuasive. The jury was not instructed regarding the actions necessary to support either a conviction for anal sodomy, or for witness intimidation. Counts IV and XI must be reversed and remanded.

Propositions IX and X are rendered moot by this decision.

Thompson claims in Proposition III that his life sentences for Counts II and IX were affected by erroneous jury instructions. Jurors were instructed that those crimes, when committed after a conviction for first degree rape, were punishable by life imprisonment without the possibility of parole. Thompson claims this instruction was incorrect. As to Count II, first degree rape, he is mistaken. The statute under which Thompson’s sentences were enhanced provides: Any 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. This statute was in effect at the time Thompson committed these crimes. The State alleged Thompson had one prior rape conviction along with three other prior convictions. Despite this, and despite the fact that Thompson stipulated to all his prior offenses, the jury sentenced Thompson to life imprisonment. This suggests that jurors took into account the three non-rape priors and chose to sentence Thompson under the portion of the instruction which provided a range of up to life imprisonment for two or more priors, not including a conviction for first degree rape. This instruction was not in error, and Thompson’s sentence is within the range of punishment.

The instruction regarding Thompson’s sentence for Count IX is problematic. Both parties argue from the premise that Thompson was found guilty in Count IX of forcible oral sodomy. He was not. The Information clearly charges Thompson with a violation of 21 O.S.Supp.2002, § 886 (oral sodomy) in Count IX. This was never amended to forcible oral sodomy. The verdict form states Thompson is guilty of oral sodomy, and the Judgment and Sentence reflects a conviction for oral sodomy under § 886. Despite the language of the Information, the trial court and both parties agreed that the jury should be instructed on forcible oral sodomy. As Thompson was not charged with forcible oral sodomy, the enhancement section authorizing life without parole did not apply, and jurors should not have received that instruction. Thompson asks this Court to modify his life sentence for Count IX. The penalty for oral sodomy is up to ten years imprisonment; the penalty for oral sodomy after two or more previous convictions is up to life imprisonment. The jury’s sentencing recommendation in Count IV suggests that jurors found at least three of Thompson’s four alleged prior convictions. A sentence of life imprisonment is within the range of punishment here, and no modification is necessary.

We find in Proposition VI that the trial court erred in allowing the prosecutor to specifically refer to plea bargains and elicit a similar reference to plea bargains from a witness. Evidence of plea bargains is inadmissible in a criminal case. The State argues that the trial court was correct in holding that Thompson opened the door by asking about the delay in submission of evidence to the crime laboratory. This is not a case where a prosecutor asked an open-ended question exploring further a topic defense counsel had introduced, eliciting an improper response. Here, the prosecutor herself deliberately brought up an issue she knew to be inadmissible, injecting it into her question and implicitly encouraging her witness to repeat the inadmissible evidence in a subsequent answer. This was error. However, our cases discussing this issue have conditioned relief on the specific contents of the inadmissible testimony. We have granted relief where testimony showed the defendant made statements in connection with and relevant to an actual offer to plead guilty. Even extending this to testimony that a defendant engaged in plea negotiations, the improper testimony here was not this definite. Although her question implied it, the prosecutor did not ask whether Thompson had entered into plea negotiations, and the witness’s response to her subsequent question was very general. Under these circumstances, this error requires no relief.

We find in Proposition II that, taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that L.K. was not Thompson’s spouse and that Thompson raped L.K. We find in Proposition IV that the SANE nurse’s testimony did not improperly tell jurors what result to reach. We find in Proposition V that Count IV of the Information charged Thompson with committing anal sodomy under 21 O.S.Supp.2002, § 886, and that constitutes a crime in Oklahoma. We find in Proposition VII that the prosecutor did not tell jurors their job was to enforce the law by returning a guilty verdict. We find in Proposition VIII that counsel was not ineffective for failing to object to errors raised in Propositions I, IV, V, and VII. We find in Proposition XI that no accumulated error requires relief.

Decision

The Judgements and Sentences on Counts II, VI, VII, VIII, and IX are AFFIRMED. The Judgments and Sentences on Counts IV and XI are REVERSED and REMANDED for proceedings consistent with this Opinion. 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.

^[1] [The full citations and references will still apply as they were included in the original text.]

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Footnotes:

1. Okla. Stat. tit. 22 § 1111
2. Okla. Stat. tit. 21 § 886
3. Okla. Stat. tit. 21 § 741
4. Okla. Stat. tit. 21 § 644
5. Okla. Stat. tit. 21 § 886
6. Okla. Stat. tit. 21 § 455
7. 20 O.S.2001, § 3001.1
8. Okla. Stat. tit. 21 § 455
9. 21 O.S.Supp.2002, § 886
10. 21 O.S.Supp.2002, § 51.1(C)
11. 12 O.S.2001, § 2410
12. Fritz v. State, 1991 OK CR 62, 811 P.2d 1353, 1363
13. Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, 1041-42
14. Bell v. State, 2007 OK CR 43, 172 P.3d 622, 627
15. Lott v. State, 2004 OK CR 27, 98 P.3d 318, 342-43
16. Newsom v. State, 1988 OK CR 229, 763 P.2d 135, 139
17. Garcia v. State, 1995 OK CR 58, 904 P.2d 144, 145
18. Post v. State, 1986 OK CR 30, 715 P.2d 1105, 1109
19. Eizember v. State, 2007 OK CR 29, 164 P.3d 208, 235
20. Virgin v. State, 1990 OK CR 27, 792 P.2d 1186, 1188
21. Williams v. State, 2001 OK CR 9, 22 P.3d 702, 711

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1111 (2006) - First Degree Rape
• Okla. Stat. tit. 21 § 886 (2002) - Sodomy (Anal)
• Okla. Stat. tit. 21 § 741 (2004) - Kidnapping
• Okla. Stat. tit. 21 § 644 (2006) - Assault and Battery (Misdemeanor)
• Okla. Stat. tit. 21 § 886 (2002) - Sodomy (Oral)
• Okla. Stat. tit. 21 § 455 (2001) - Intimidation of a Witness
• Okla. Stat. tit. 20 § 3001.1 (2001) - Standards for Jury Instructions
• Okla. Stat. tit. 21 § 51.1a (2002) - Enhanced Penalty for Oral Sodomy
• Okla. Stat. tit. 12 § 2410 (2001) - Plea Bargain Evidence Admissibility

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:

• Pinkley v. State, 2002 OK CR 26, 49 P.3d 756, 759
• Mehdipour v. State, 1998 OK CR 21, 956 P.2d 911, 914-15
• Fritz v. State, 1991 OK CR 62, 811 P.2d 1353, 1363
• Shriver v. State, 1980 OK CR 36, 632 P.2d 420, 425-26
• Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, 1041-42
• Bell v. State, 2007 OK CR 43, 172 P.3d 622, 627
• Lott v. State, 2004 OK CR 27, 98 P.3d 318, 342-43
• Newsom v. State, 1988 OK CR 229, 763 P.2d 135, 139
• Garcia v. State, 1995 OK CR 58, 904 P.2d 144, 145
• Post v. State, 1986 OK CR 30, 715 P.2d 1105, 1109
• Eizember v. State, 2007 OK CR 29, 164 P.3d 208, 235
• Primeaux v. State, 2004 OK CR 16, 88 P.3d 893, 909
• Virgin v. State, 1990 OK CR 27, 792 P.2d 1186, 1188
• Myers v. State, 2005 OK CR 22, 130 P.3d 262, 269
• Williams v. State, 2001 OK CR 9, 22 P.3d 702, 711
• Cannon v. State, 1995 OK CR 45, 904 P.2d 89