Daniel Timothy Hogan v The State Of Oklahoma

F-2008-667

Filed: Aug. 27, 2009

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Daniel Timothy Hogan appealed his conviction for First Degree Rape by Instrumentation and multiple counts of Lewd Molestation and Forcible Sodomy. His conviction and sentence included life in prison without the possibility of parole for one count and twenty years for each of the other counts. Judge Dynda Post sentenced him, and the sentences were ordered to be served one after the other (consecutively). Judge Johnson dissented.

Decision

The Judgment and Sentence of the District Court on Counts 1 and 2 is AFFIRMED. The Judgment and Sentence of the District Court on Counts 3, 4, 5 and 7 is REVERSED and REMANDED with instructions to dismiss. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was the prosecution of Counts 3, 4, and 5 for Lewd Molestation and Count 7 for Forcible Sodomy barred by the statute of limitations?
• Did the trial court abuse its discretion by refusing to impose concurrent prison terms and ordering the sentences to run consecutively?
• Was Hogan's sentence excessive, considering the facts and circumstances of the case?

Findings

• The court erred in denying the motion based on the statute of limitations for Counts 3, 4, 5, and 7.
• The trial court did not abuse its discretion by deciding to run sentences consecutively.
• The sentence was not excessive and does not shock the conscience of the Court.

F-2008-667

Aug. 27, 2009

Daniel Timothy Hogan

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE A. JOHNSON, VICE PRESIDING JUDGE:

Appellant Daniel Timothy Hogan was tried by jury in the District Court of Rogers County, Case No. CF-2007-331, and found guilty of First Degree Rape by Instrumentation (Count 1), in violation of 21 O.S.2001, § 1114(A), Lewd Molestation (Count 2), in violation of 21 O.S.Supp.2006, § 1123, Lewd Molestation (Counts 3 and 4), in violation of 21 O.S.Supp.1999, § 1123, Lewd Molestation (Count 5), in violation of 21 O.S.Supp.1992, § 1123, and Forcible Sodomy (Count 7), in violation of 21 O.S.Supp.1999, § 888. The jury fixed punishment at life imprisonment without the possibility of parole on Count 1, and twenty years imprisonment on each of Counts 2, 3, 4, 5, and 7. The Honorable Dynda Post, who presided at trial, sentenced Hogan accordingly and ordered the sentences to be served consecutively. From this judgment and sentence, Hogan appeals.

Background

In 1994 Appellant Hogan married Carrie Spencer and moved in with her and her three daughters, ABK, JB, and LB. Each girl had a learning disability and attended special education classes while in school. According to ABK, Hogan molested her twice when she was seven or eight years old. She claimed that Hogan touched her vagina on top of and underneath her jeans and panties. ABK said that she told the parent of one of her friends what had happened a couple of years after the incident; the parent apparently never reported the molestation to the police. In 1999, when ABK was thirteen, Hogan entered ABK’s bedroom and after telling her that he loved her asked her about performing fellatio. Hogan then placed his penis in her mouth for a few seconds. ABK testified that she fell asleep afterwards only to awake to Hogan on top of her, having sex with her. ABK said that she told the same friend’s parent what Hogan had done a couple of months after the sodomy/rape incident and the parent, again, did not report the molestation to the police. Hogan molested JB on five or six occasions in 1999 when she was seven or eight years old. JB recalled that Hogan put his hand underneath her pants and panties and rubbed her vagina during these incidents. The molestation then ceased for a number of years until JB was fourteen years old. Sometime between 2005 and 2006, Hogan tried again to put his hand down JB’s pants. She resisted and told him to stop and he complied. Hogan told JB not to tell anyone and she obeyed because she was afraid of Hogan. Early in 2007 Hogan molested LB when she was thirteen. LB recalled three different occasions where Hogan placed his hand underneath her pants and panties, touching her vagina. During a fourth incident, Hogan put a vibrating dildo inside LB’s vagina. LB testified that Hogan inserted the vibrator in her vagina on one other occasion. Hogan told LB that if she told anyone he would hurt her and her mother. Eventually LB told her sister ABK, then 20 years old, what Hogan had done to her. A Rogers County deputy went to Hogan’s residence and spoke separately with LB and Hogan after receiving an anonymous tip. The day after these initial interviews, Hogan attempted suicide.

1. Statute of Limitations

Hogan claims that prosecution of Counts 3, 4 and 5 for Lewd Molestation and Count 7 for Forcible Sodomy was barred by the statute of limitations. While Hogan never raised this issue at trial, the statute of limitations is a jurisdictional bar to prosecution, and unless expressly waived, may be raised for the first time on direct appeal. See Cox v. State, 2006 OK CR 51. Once asserted, the presumption is that the statute [of limitations] has run and the State has the obligation to overcome this presumption. State v. Day, 1994 OK CR 67. Under the relevant statutes of limitation, prosecution for each of the three counts of Lewd Molestation must have commenced within five years after discovery of the crime and the count of Forcible Sodomy must have commenced within seven years of the discovery of the crime. See 22 O.S.Supp.1 1994, § 152; 22 O.S.1991, § 152. In Day we held that discovery of the crime occurs when any person (including the victim) other than the wrongdoer or someone in pari delicto with the wrongdoer has knowledge of both (i) the act and (ii) its criminal nature. The Day court also held that the crime has not been discovered during any period that the crime is concealed because of fear induced by threats made by the wrongdoer. According to the testimony at trial, Counts 3 and 4 (lewd molestation) committed against JB and Count 7 (forcible sodomy) committed against ABK occurred sometime during 1999. Count 5 (lewd molestation) committed against ABK occurred in 1993 or 1994. The Information alleging these charges was not filed until July 13, 2007. Some eight and thirteen years elapsed between the commission of these crimes and prosecution. Reversal of Hogan’s convictions on these counts is required unless the evidence shows either that no one other than Hogan knew about the act or its criminal nature or that Hogan concealed the acts through fear induced by threats.

The evidence is insufficient to overcome the statute of limitations bar on Counts 5 and 7 in this case. The State offered no evidence that Hogan attempted to conceal his criminal act by threatening ABK or that ABK did not have knowledge of the act or its criminal nature; ABK’s trial testimony, in fact, proved otherwise. ABK testified that she told an adult about the molestation a couple of years after the incident in 1994 and told the same adult about the sodomy incident within months of its occurrence in 1999. Reporting these incidents to an adult, under the facts of this case, demonstrates an understanding of the criminal nature of Hogan’s acts and triggered the limitations period. ABK also testified that Hogan never threatened her to maintain her silence and that the reason she did not tell her mother was that she was afraid that her mother would be mad. Consequently, the five year limitations period for Count 5 and the seven year limitations period for Count 7 was not tolled by threats and expired prior to the State filing the charges in this case in 2007. Counts 3 and 4 committed against JB in 1999 must also be dismissed. JB testified that she did not tell anyone about the molestation because she was scared of Hogan and he told her not to tell. There was no evidence, however, that JB’s fear of Hogan was induced because of threats he made to her rather than the acts he committed against her. Without more, we can find neither that the five year limitations period was tolled based on fear induced by threats nor that the State filed charges prior to the expiration of the five year limitations period.

The State, anticipating a statute of limitations problem, urges us to overrule Day in favor of the definition of discovery adopted by the Legislature in 2000. We decline this invitation. When adopting the definition of discovery in 2000 the Legislature did not include language making that definition retroactive. Without language dictating the new definition applies retroactively, we are bound to presume that the Legislature intended that the new definition apply only to crimes committed after November 1, 2000. As recently as this year we have continued to apply the definition of discovery found in Day, for crimes committed prior to November 1, 2000. Because the prosecution for Counts 3, 4, 5, and 7 were not commenced with the applicable limitations period after discovery of the crimes, Counts 3, 4, 5 and 7 are reversed and remanded with instructions to dismiss.

2. Trial Court’s Decision to Run Sentences Consecutively

Hogan contends the trial court abused its discretion by refusing to consider the imposition of concurrent prison terms and ordering his sentences to run consecutively. Hogan maintains that the trial court decided before trial, pursuant to the court’s policy, that if he exercised his right to jury trial and was convicted of multiple counts, his sentences would run consecutively.

We begin by noting that the sentencing judge shall, at all times, have the discretion to enter a sentence concurrent with any other sentence. It is well established that this Court will not disturb the discretionary rulings of the trial court without a showing that such rulings were arbitrary or capricious. A trial court abuses its discretion when it abdicates its discretion in order to advance a courthouse policy. Hogan claims the trial court’s pre-trial comment made during plea discussions is evidence that the trial court had a policy of refusing consideration of concurrent sentences if the defendant went to jury trial. However, Hogan ignores the trial court’s comments at sentencing. At sentencing, the State advocated for consecutive sentences while the defense made its case for concurrent sentences. In making its decision the trial court stated: I do have a more than vivid memory of the testimony in this case of the years of bad treatment and nightmare experiences that these little girls suffered at the hands of Mr. Hogan and I do find the sentences should be consecutive just based upon the facts. The trial court’s statement demonstrates to us that the trial court used facts to exercise its discretion rather than some arbitrary or capricious courthouse policy. We find no relief is warranted here.

3. Excessive Sentence

Hogan claims that his sentence is excessive and asks that it be modified in the interest of justice. A sentence within the statutory range will be affirmed on appeal unless, considering all the facts and circumstances, it shocks the conscience of this Court. When the counts barred by the statute of limitations are eliminated from the equation, Hogan’s remaining sentence totals life imprisonment without the possibility of parole plus twenty years. The evidence showed that Hogan sexually abused his three step-daughters, who suffered various degrees of mental impairment, both when they were young children and again when they were teenagers. He resided in their home and served as a constant reminder of the abuse he had inflicted. While no evidence was presented of any prior convictions, the long term effect of Hogan’s crimes on his victims is far reaching. Hogan’s sentence does not shock our conscience under the facts and circumstances of this case.

DECISION

The Judgment and Sentence of the District Court on Counts 1 and 2 is AFFIRMED. The Judgment and Sentence of the District Court on Counts 3, 4, 5 and 7 is REVERSED and REMANDED with instructions to dismiss. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 1114(A)
2. 21 O.S.Supp.2006, § 1123
3. 21 O.S.Supp.1999, § 1123
4. 21 O.S.Supp.1992, § 1123
5. 21 O.S.Supp.1999, § 888
6. Cox v. State, 2006 OK CR 51, III 7-9, 152 P.3d 244, 248-49
7. State U. Day, 1994 OK CR 67, I 14, 882 P.2d 1096, 1098
8. Horn v. State, 2009 OK CR 7, IT 46, 204 P.3d 777, 787
9. 22 O.S.Supp.1994, § 152
10. 22 O.S.1991, § 152
11. 22 O.S.Supp.2000, § 152 (G)
12. Wolfenbarger v. State, 1985 OK CR 143, I 6, 710 P.2d 114, 115-116
13. Flett v. State, 1988 OK CR 150, I 5, 760 P.2d 205, 206
14. Gillespie v. State, 1960 OK CR 67, T 16, 355 P.2d 451, 456
15. Head v. State, 2006 OK CR 44, IT 27, 146 P.3d 1141, 1148

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114(A) - First Degree Rape by Instrumentation
• Okla. Stat. tit. 21 § 1123 - Lewd Molestation
• Okla. Stat. tit. 21 § 888 - Forcible Sodomy
• Okla. Stat. tit. 22 § 152 (1994) - Statute of Limitations for Certain Crimes
• Okla. Stat. tit. 22 § 152 (1991) - Statute of Limitations for Certain Crimes
• Okla. Stat. tit. 22 § 3 (2001) - Non-Retroactivity of Criminal Code
• Okla. Stat. tit. 22 § 976 - Discretion in Sentencing
• Okla. Stat. tit. 22 § 152 (G) - Definition of 'Discovery' for 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:

• Cox v. State, 2006 OK CR 51, III 7-9, 152 P.3d 244, 248-49
• State v. Day, 1994 OK CR 67, I 14, 882 P.2d 1096, 1098
• Horn v. State, 2009 OK CR 7, IT 46, 204 P.3d 777, 787
• Wolfenbarger v. State, 1985 OK CR 143, I 6, 710 P.2d 114, 115-116
• Flett v. State, 1988 OK CR 150, I 5, 760 P.2d 205, 206
• Gillespie v. State, 1960 OK CR 67, T 16, 355 P.2d 451, 456
• Head v. State, 2006 OK CR 44, IT 27, 146 P.3d 1141, 1148