Rickey Dewayne Prince v State Of Oklahoma

F-2009-1002

Filed: Dec. 10, 2010

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Rickey Dewayne Prince appealed his conviction for several serious crimes, including Possession of Child Pornography and Lewd Molestation. The court sentenced him to a total of over 200 years in prison for these crimes. The court found that he had enough opportunities for a fair trial, despite some errors in the proceedings. The justices modified his sentences for two counts to reduce them to five years each for Possession of Child Pornography and 20 years each for Lewd Molestation. The judges agreed that these modifications did not violate his rights, and ultimately, all other convictions and sentences were upheld. Judge Johnson dissented in part, meaning he disagreed with some aspects of the opinion.

Decision

Appellant's convictions for Possession of Child Pornography are AFFIRMED, but the sentences are MODIFIED to imprisonment for five (5) years in each count. The case is REMANDED to the District Court for the correction of the Judgment and Sentence document to reflect that the convictions for Possession of Child Pornography are under 21 O.S.2001, § 1024.2. Appellant's convictions for Lewd Molestation are AFFIRMED and the sentences are MODIFIED to imprisonment for twenty (20) years in each count. The Judgment and Sentence as to all remaining counts is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was Mr. Prince denied a fair trial by improper vouching for the truthfulness of the victims' testimony?
• Did the charges of possession of child pornography need to be charged under the specific statute?
• Do the sentences in Counts 4-6 and Counts 10-12 violate constitutional protection against ex post facto laws?
• Was it error to admit Mr. Prince's statement without conducting the required Jackson v. Denno hearing?
• Did the trial court err by failing to instruct the jury on the voluntariness of Mr. Prince's statement?
• Were child hearsay statements inadmissible because no hearing pursuant to Section 2803.1 was conducted to determine if the statements were reliable?
• Was the evidence insufficient to convict Mr. Prince in Counts 3-15 based on the improbable testimony of the victims and lack of independent corroboration?
• Was the evidence insufficient to convict Mr. Prince in Counts 1 and 2 because the State failed to prove all of the elements of the crime?
• Was Mr. Prince denied a fair trial by improper comments and questioning by the prosecutor?
• Was Mr. Prince denied the effective assistance of defense counsel?
• Were the lengths and consecutive nature of Mr. Prince's sentences excessive?
• Did the accumulation of errors deprive Mr. Prince of a fair trial?

Findings

• the court did not err regarding the vouching for the truthfulness of the victims' testimony
• the court committed plain error by charging under the wrong statute, but the error did not affect the conviction
• the sentences for lewd molestation were modified due to plain error regarding ex post facto laws
• the court did not err in admitting Mr. Prince's statement without a Jackson v. Denno hearing
• the court did not err by failing to instruct the jury on the voluntariness of Mr. Prince's statement
• the court committed harmless error by not conducting a hearing under Section 2803.1 for child hearsay statements
• the evidence was sufficient to convict Mr. Prince in Counts 3-15 despite the absence of corroboration
• the evidence was sufficient to convict Mr. Prince in Counts 1 and 2
• the court did not err regarding prosecutorial misconduct
• the court found no ineffective assistance of defense counsel impacting the trial outcome
• the length and consecutive nature of Mr. Prince's sentences were not excessive
• cumulative errors did not deprive Mr. Prince of a fair trial

F-2009-1002

Dec. 10, 2010

Rickey Dewayne Prince

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant, Rickey Dewayne Prince, was tried by jury and convicted of Possession of Child Pornography (Counts 1 and 2) (21 O.S.2001, § 1021.2); Indecent Exhibition of Obscene Material to Minor Child (Count 3) (21 O.S.Supp.2007, § 1021 (B)(2)); Lewd Molestation (Counts 4, 5, 6, 10, 11, and 12 (21 O.S.Supp.2003, § 1123); First Degree Rape (Counts 7, 8 and 9) (21 O.S.2001, § 1114); and Forcible Sodomy (Counts 13, 14, and 15) (21 O.S.Supp.2002, § 888) in the District Court of Pontotoc County Case Number CRF-2007-572. The jury recommended as punishment imprisonment for twenty (20) years each in Counts 1, 2, 13, 14, and 15; thirty (30) years in Count 3; sixty (60) years each in Counts 4, 5, 6, 10, 11, and 12; and imprisonment for life without the possibility of parole in Counts 7, 8, and 9. The trial court sentenced accordingly and ordered the sentences to run consecutively. It is from these judgments and sentences that Appellant appeals.

Appellant raises the following propositions of error in this appeal:

I. Mr. Prince Was Denied A Fair Trial By Improper Vouching For Truthfulness Of The Victims’ Testimony.

II. The Charges Of Possession Of Child Pornography Should Have Been Charged Under the Specific Statute.

III. The Sentences In Counts 4-6 And Counts 10-12 Violate Constitutional Protection Ex Post Facto Laws.

IV. It Was Error To Admit Mr. Prince’s Statement Without Conducting The Required Jackson v. Denno Hearing.

V. The Trial Court Erred By Failing To Instruct The Jury On The Voluntariness Of Mr. Prince’s Statement.

VI. Child Hearsay Statements Were Inadmissible Because No Hearing Pursuant To Section 2803.1 Was Conducted To Determine If The Statements Were Reliable.

VII. The Evidence Was Insufficient To Convict Mr. Prince In Counts 3-15 Based Upon The Improbable Testimony Of The Victims And Lack Of Independent Corroboration.

VIII. The Evidence Was Insufficient To Convict Mr. Prince In Count 1 And Count 2 Because The State Failed To Prove All Of The Elements Of The Crime.

IX. Mr. Prince Was Denied A Fair Trial By The Improper Comments And Questioning By The Prosecutor.

X. Mr. Prince Was Denied The Effective Assistance Of Defense Counsel.

XI. The Length And Consecutive Nature Of Mr. Prince’s Sentences Imposed Was Excessive.

XII. The Accumulation Of Errors Deprives Mr. Prince Of A Fair Trial.

In his first proposition, Appellant contends that the Sexual Assault Nurse Examiner improperly vouched for the truthfulness of the victims’ testimony when she testified that her medical findings as to each victim were consistent with the victim’s statement given in the medical history. Appellant further contends that the prosecutor improperly vouched for the victims’ testimony when he relied upon the medical findings in closing argument and argued that the victims’ accounts were consistent. Appellant failed to raise a timely challenge to the testimony and argument at trial. Thus, he has waived appellate review for all but plain error.

We find that impermissible vouching did not occur as the jury could not have reasonably believed that either the witness or the prosecutor indicated a personal belief in the victims’ testimony. As plain error did not occur, this proposition is denied.

In his second proposition, Appellant contends that he should have been charged and tried under the specific provisions of 21 O.S.2001, § 1024.2 rather than 21 O.S.2001, § 1021.2. Appellant did not raise a timely challenge before the trial court to the prosecutor’s election to proceed under 21 O.S.2001, § 1021.2. As such, he has waived appellate review of the instant challenge for all but plain error.

We find that plain error occurred. Both Section 1024.2 and Section 1021.2 cause the possession of child pornography to be unlawful. As Section 1024.2 is the more specific statute in the present case, it supersedes Section 1021.2. Because the elements of unlawful possession of child pornography are the same under both statutory provisions, the error does not affect Appellant’s conviction. However, the error affected Appellant’s substantial rights because it caused him to be subject to a greater potential maximum sentence. We modify Appellant’s sentences in Counts 1 and 2 to imprisonment for five (5) years in each count. Appellant’s Judgment and Sentence must be corrected to clearly state that the conviction is under Section 1024.2.

In his third proposition, Appellant contends that his sentences for lewd molestation in Counts 4, 5, 6, 10, 11, and 12 constitute an ex post facto violation. Appellant failed to raise a timely challenge to the trial court’s instruction to the jury regarding the applicable punishment range. As such he has waived appellate review of the alleged error for all but plain error.

As the trial court failed to instruct the jury regarding the penalty imposed by law for the crime on the date of its commission, we agree with the State’s concession of plain error. We modify Appellant’s sentences for lewd molestation in Counts 4, 5, 6, 10, 11, and 12 to imprisonment for twenty (20) years in each count.

In his fourth proposition, Appellant contends that the trial court erred when it admitted his inculpatory statements to the undersheriff without conducting a Jackson v. Denno hearing. Appellant did not challenge the voluntariness of his statements to the undersheriff or timely request an in camera hearing before their admission at trial. As such Appellant has waived appellate review of the instant challenge for all but plain error.

We find that plain error did not occur. “A defendant does not have the right to a Jackson v. Denno hearing as to the voluntariness of his inculpatory custodial statements where he does not object to the admission of the statements.” Appellant attempts to excuse his failure to challenge the voluntariness of his statements at trial by claiming ineffective assistance of counsel. The record reflects that Appellant voluntarily met with the undersheriff, was advised of his Miranda rights and knowingly and voluntarily gave the statements.

This proposition is denied.

In his fifth proposition, Appellant contends that the trial court erred when it failed to sua sponte instruct the jury regarding the voluntariness of his statements to the undersheriff. Appellant did not request that the trial court instruct the jury under OUJI-CR(2d) 9-12, 9-13. As such he has waived appellate review of the instant challenge for all but plain error.

The instructions set forth in OUJI-CR(2d) 9-12, 9-13 are only given upon request of the defendant following a Jackson v. Denno hearing. As Appellant neither challenged the admission of his statements at trial nor requested that the jury be instructed upon the voluntariness of his statements, the trial court did not err when it omitted the instructions. Plain error did not occur and this proposition is denied.

In his sixth proposition, Appellant contends that the trial court erred when it failed to conduct a hearing under 12 O.S.Supp.2004, § 2803.1 prior to the admission of the children’s’ statements to their mother regarding sexual abuse. The State concedes error but argues that the error was harmless.

We agree. Appellant waived appellate review of the instant challenge for all but plain error when he failed to timely challenge the admission of the testimony at trial. We have previously recognized that failure to have a hearing in accordance with the directives of § 2803.1 constitutes plain error but that such error is subject to harmless error review. As in Simpson, the error in the present case is harmless as it did not have a substantial influence on the outcome of the trial. This proposition is denied.

In proposition seven, Appellant contends that the victims’ testimony must have been corroborated in order for it to be sufficient to support his convictions in Counts 3 through 15. As the victims’ testimony was lucid, clear and unambiguous, corroboration was not required. Taking the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. This proposition is denied.

In proposition eight, Appellant contends that the evidence was insufficient to support his convictions in Counts 1 and 2 because the State failed to prove that the images constituted child pornography. Taking the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the individuals depicted in the images were under the age of 18 years-old beyond a reasonable doubt. This proposition is denied.

In proposition nine, Appellant contends that prosecutorial misconduct deprived him of a fundamentally fair trial. Appellant did not raise a timely challenge to the questions or argument at trial. As such, he has waived appellate review of the instant challenge for all but plain error.

We find that plain error did not occur. As set forth in proposition one, impermissible vouching did not occur. The prosecutor’s references to the victims’ ages were not improper appeals for victim sympathy but fell within the wide latitude of discussion permitted both the state and the defense in closing argument. Reviewing the entire record, the prosecutor’s comments regarding the victims’ lost innocence did not deprive Appellant of a fair trial. This proposition is denied.

In proposition ten, Appellant raises numerous instances where he asserts that his trial counsel rendered ineffective assistance. Appellant’s claims that trial counsel’s failure to timely object to prosecution under 21 O.S.2001, § 1021.1 in Count 1 and 2 and the trial court’s erroneous instruction upon the sentencing ranges for Counts 4, 5, 6, 10, 11, and 12 are rendered moot by the relief granted in propositions two and three.

As to Appellant’s remaining claims, a review of the record reveals that Appellant is unable to show a reasonable probability that the outcome of the trial would have been different but for any unprofessional errors by defense counsel. This proposition is denied.

In proposition eleven, Appellant contends that his sentences are excessive. We find that Appellant’s sentences, as modified by this Court, are within the applicable statutory ranges and when considered under all the facts and circumstances of the case, are not so excessive as to shock the conscience of the Court. This proposition is denied.

In proposition twelve, Appellant contends that the combined errors in his trial denied him the right to a constitutionally guaranteed fair trial. We find Appellant was not denied a fair trial by cumulative error. We found error in propositions two, three, and four. In viewing the cumulative effect of these errors we do not find that they require reversal of Appellant’s convictions as none were so egregious or numerous as to have denied Appellant a fair determination of his guilt. This proposition is denied.

DECISION

Appellant’s convictions for Possession of Child Pornography are AFFIRMED, but the sentences are MODIFIED to imprisonment for five (5) years in each count. The case is REMANDED to the District Court for the correction of the Judgment and Sentence document to reflect that the convictions for Possession of Child Pornography are under 21 O.S.2001, § 1024.2. Appellant’s convictions for Lewd Molestation are AFFIRMED and the sentences are MODIFIED to imprisonment for twenty (20) years in each count. The Judgment and Sentence as to all remaining counts is AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 1021.2
2. Okla. Stat. tit. 21 § 1021 (B)(2)
3. Okla. Stat. tit. 21 § 1123
4. Okla. Stat. tit. 21 § 1114
5. Okla. Stat. tit. 21 § 888
6. Okla. Stat. tit. 21 § 13.1
7. Okla. Stat. tit. 21 § 1024.2
8. Okla. Stat. tit. 12 § 2803.1
9. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)
10. Pollard v. State, 1974 OK CR 63, 91 3-7, 521 P.2d 400
11. OUJI-CR(2d) 9-12, 9-13 (Supp.2008)
12. OUJI-CR(2d) 10-8 (Supp.2009)
13. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
14. Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148
15. Ashinsky v. State, 1989 OK CR 59, " 31, 780 P.2d 201
16. Williams v. State, 2001 OK CR 9, I 127, 22 P.3d 702

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1021.2 (2001) - Possession of Child Pornography
• Okla. Stat. tit. 21 § 1021(B)(2) (Supp. 2007) - Indecent Exhibition of Obscene Material to Minor Child
• Okla. Stat. tit. 21 § 1123 (Supp. 2003) - Lewd Molestation
• Okla. Stat. tit. 21 § 1114 (2001) - First Degree Rape
• Okla. Stat. tit. 21 § 888 (Supp. 2002) - Forcible Sodomy
• Okla. Stat. tit. 21 § 13.1 (Supp. 2007) - Sentencing for Certain Crimes
• Okla. Stat. tit. 21 § 1024.2 (2001) - Specific Offense for Possession of Child Pornography
• Okla. Stat. tit. 20 § 3001.1 (2001) - Definitions of Terms Used
• Okla. Stat. tit. 12 § 2803.1 (Supp. 2004) - Hearsay Exception for Child Victims

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, I 2, 876 P.2d 690, 692
• Warner v. State, 2006 OK CR 40, I 24, 144 P.3d 838, 860-61
• Lawrence v. State, 1990 OK CR 56, I 4, 796 P.2d 1176, 1177
• Head v. State, 2006 OK CR 44, I 9, 146 P.3d 1141, 1144
• Tinney v. State, 1985 OK CR 165, I 10, 712 P.2d 65, 67
• Maloney v. State, 1975 OK CR 22, I 3, 532 P.2d 78, 79
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Pollard v. State, 1974 OK CR 63, I 3-7, 521 P.2d 400, 401-02
• Allen v. State, 1991 OK CR 35, I 20, 821 P.2d 371, 375-76
• Rowe v. State, 1989 OK CR 54, I 3, 779 P.2d 594, 595
• Lambert v. State, 1999 OK CR 17, I 60, 984 P.2d 221, 238
• Davis v. State, 1999 OK CR 16, I 24, 980 P.2d 1111, 1118
• Humphreys v. State, 1997 OK CR 59, I 18, 947 P.2d 565, 573
• Wainwright v. Sykes, 433 U.S. 72, 86, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977)
• Bland v. State, 2000 OK CR 11, I 112, 4 P.3d 702, 730-31
• Jones v. State, 2006 OK CR 5, I 39, 128 P.3d 521, 538
• Parent v. State, 2000 OK CR 27, II 18-22, 18 P.3d 348, 352-53
• Applegate v. State, 1995 OK CR 49, I 16, 904 P.2d 130, 136
• Salyer v. State, 1988 OK CR 184, I 22, 761 P.2d 890, 895
• Easlick v. State, 2004 OK CR 21, IT 15, 90 P.3d 556, 559
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Romano v. State, 1995 OK CR 74, I 54, 909 P.2d 92, 115
• Garrison v. State, 2004 OK CR 35, I 117, 103 P.3d 590, 610-11
• Short v. State, 1999 OK CR 15, I 72, 980 P.2d 1081, 1104
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149
• Freeman v. State, 1994 OK CR 37, I 38, 876 P.2d 283, 291
• Ashinsky v. State, 1989 OK CR 59, I 31, 780 P.2d 201, 209
• Bechtel v. State, 1987 OK CR 126, 738 P.2d 559, 561
• Williams v. State, 2001 OK CR 9, I 127, 22 P.3d 702, 732