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F-2009-177

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Jesse James Stout v The State Of Oklahoma

F-2009-177

Filed: Oct. 8, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jesse James Stout appealed his conviction for sexual abuse of a child and exhibition of obscene materials to minors. His conviction included a total sentence of 43 years for one count and various sentences adding up to 40, 30, and 15 years for other counts. In the decision, the court affirmed his convictions for the first eight counts but reversed the last three counts, which involved showing obscene materials to minors. Notably, Judge Lumpkin dissented in part, arguing that the trial court did not err in changing the charges mid-trial and that Stout was not materially prejudiced by this amendment.

Decision

The Judgment and Sentence of the District Court of Oklahoma County in Counts 1 through 8 is AFFIRMED. Counts 9, 10, and 11 are REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the 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 there an error in denying Appellant's motion to suppress his confession?
  • Did the trial court err in submitting eight separate counts of sexual abuse to the jury instead of three counts?
  • Did the trial court err in allowing the State to amend counts 9 through 11 at the end of trial to charge crimes not pled in the information?

Findings

  • the trial court did not err in denying Appellant's motion to suppress his confession
  • the trial court did not err in submitting eight separate counts of sexual abuse to the jury
  • the trial court erred in allowing the State to amend counts 9 through 11, and this materially prejudiced Appellant's due process rights

F-2009-177

Oct. 8, 2010

Jesse James Stout

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Jesse James Stout, Appellant, was tried by jury and found guilty of Counts 1 through 8, sexual abuse of a child, in violation of 10 O.S.Supp.2006, § 7115; and Counts 9 through 11, exhibition of obscene materials to a minor child, in violation of 21 O.S.Supp.2006, § 1123(A)(5)(d), in the District Court of Oklahoma County, Case No. CF-2006-7200. The jury sentenced Appellant to forty-three (43) years imprisonment on Count 1 and 2; forty (40) years imprisonment on Count 3, 4, 5, and 6; thirty (30) years imprisonment on Count 7 and 8; and fifteen (15) years imprisonment on Count 9, 10, and 11. The Honorable Virgil Black, District Judge, imposed judgment and sentence accordingly. Judge Black ordered sentences ran consecutively.

Mr. Stout appeals in the following propositions of error:

1. The trial court erred in denying Appellant’s motion to suppress his confession.
2. The trial court erred in submitting eight separate counts of sexual abuse to the jury instead of three counts of sexual abuse.
3. The trial court erred in allowing the State to amend counts 9 through 11 at the end of trial to allow the State to charge three 85% crimes not pled in the information and not instructing the jury on the 85% law.

Appellant first argues that the trial court erred in denying his motion to suppress his confession because he invoked his Fifth and Sixth Amendment rights to counsel prior to questioning. When ascertaining whether a suspect has invoked his right to counsel, we consider the totality of the circumstances. Dennis v. State, 1999 OK CR 23, ¶ 14, 990 P.2d 277, 284. We review the trial court’s findings of fact for clear error and conduct a de novo review of the record. Thrasher v. State, 2006 OK CR 15, ¶ 12, 134 P.3d 846, 850. [O]nce a suspect has been advised of his right to deal with police only through counsel, interrogation may continue unless the suspect invokes that right unequivocally. McHam v. State, 2005 OK CR 28, ¶ 30, 126 P.3d 662, 672. We find that Appellant’s question to the investigating officer was not an unequivocal invocation of his right to counsel. Appellant’s testimony at trial shows that he understood his right to speak with an attorney prior to questioning and to not answer questions. See McHam, 2005 OK CR 28, ¶ 29, 126 P.3d 662, 672. Appellant was not threatened or coerced to waive his rights or give his statement. Davis v. State, 2004 OK CR 36, ¶ 33, 103 P.3d 70, 80. Appellant has not shown that his waiver of the right to counsel or his subsequent statements were involuntary.

Appellant also argues that because he had been appointed counsel prior to the interrogation, the detective violated his Sixth Amendment rights. The Sixth Amendment right to counsel is offense specific and does not attach until the prosecution is commenced. Texas v. Cobb, 532 U.S. 162, 167, 121 S.Ct 1335, 1340, 149 L.Ed.2d 321, 328 (2001). Since Appellant was not charged with any offense relating to the sexual abuse of J.S. at the time of questioning, his right to counsel on these charges had not attached. Warner v. State, 2006 OK CR 40, ¶ 55, 144 P.3d 838, 866. Therefore, the detective’s questioning did not violate his constitutional rights. Proposition One is denied.

In his second proposition, Appellant argues that his eight convictions under 10 O.S.Supp.2006, § 7115 were submitted to the jury in violation of Huddleston v. State, 1985 OK CR 12, 695 P.2d 8. In Huddleston v. State, the Court said that when a child of tender years is under the exclusive domination of one parent for a definite and certain period of time and submits to sexual acts at that parent’s demand, the separate acts of abuse become one transaction within the meaning of this rule. Id., 1985 OK CR 12, ¶ 16, 695 P.2d at 10-11. The election rule referenced in Huddleston is implicated only where the State fails to specify the alleged acts that constitute the charged offenses. Cody v. State, 1961 OK CR 43, ¶¶ 35-39, 361 P.2d 307, 319-20. The record demonstrates that the State specifically set forth each allegation of abuse, and the jury was instructed to consider each of these allegations separately. The rule of election set forth in Huddleston has no application here. Proposition Two is denied.

In his final proposition, Appellant argues that the trial court erred in allowing the State to amend the information on Counts 9 through 11 at the close of trial, and subsequently instructing the jury to determine Appellant’s guilt of a different crime than the original charge. [I]nformation may be amended in matter of substance or form after plea on order of the court where the same can be done without material prejudice to the right of the defendant. 22 O.S.2001 § 304. This court will thus ask whether the Information gives the Defendant notice of the charges against him and apprises him of what he must defend against at trial. Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986. Appellant was charged by information with three counts of exhibition of obscene materials to a minor child, an alleged violation of 21 O.S.Supp.2003, § 1021(B). At the close of its case-in-chief, the State moved to amend the information to allege a violation of 21 O.S.Supp.2006, § 1123(A)(5)(d), lewd or indecent acts with a child under sixteen by exhibiting obscene materials. The State argued Appellant was not prejudiced by the amendment because section 1123(A)(5)(d) was a lesser included offense of section 1021(B), which contains all the elements of 1021(B) minus some of the additional elements, so it is by definition, a lesser included and the punishment goes down from 10 to 30, to 3 to 20.

Although all of the elements of section 1123(A)(5)(d) are contained within section 1021(B), a violation of section 1123 is an 85 percent crime and is therefore not a lesser included offense of section 1021(B) in the situation presented here. 21 O.S.Supp.2006, § 13.1(11). The district court attempted to circumvent this problem by ignoring the 85 percent requirement of section 13.1(11). This was error as well. Anderson v. State, 2006 OK CR 6, ¶ 25, 130 P.3d 273, 283. A district court has no authority to ignore the penalty for crime(s) fixed by statute. Patterson v. Oklahoma, 44 Okl.Cr. 298, 303, 280 P. 862, 864 (1929).

Section 1021(B) carries a greater abstract range of punishment-ten (10) to thirty (30) years-than section 1123’s three (3) to twenty (20) year range. However, the 85 percent rule mandates that certain penalties for this offense will carry a greater term of imprisonment than a conviction under section 1021(B). Here, Appellant’s fifteen (15) year sentences in each of these three counts, subject to the 85 percent rule, are greater punishments than the same sentences under section 1021(B). We find the trial court erred in allowing amendment of the information and instructing the jury to consider whether Appellant committed lewd or indecent acts with a child under section 1123(A)(5)(d). This amendment materially prejudiced Appellant in violation of his due process rights. The convictions in Counts 9, 10, and 11 are reversed and remanded.

DECISION

The Judgment and Sentence of the District Court of Oklahoma County in Counts 1 through 8 is AFFIRMED. Counts 9, 10, and 11 are REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the 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. 10 O.S.Supp.2006, § 7115 and 21 O.S.Supp.2006, § 1123(A)(5)(d) are 85 percent offenses.
  2. 10 O.S.Supp.2006, § 7115 and 21 O.S.Supp.2006, § 1123(A)(5)(d) are 85 percent offenses.
  3. 10 O.S.Supp.2006, §§ 13.1(7), 13.1(11).
  4. Texas U. Cobb, 532 U.S. 162, 167, 121 S.Ct 1335, 1340, 149 L.Ed.2d 321, 328 (2001).
  5. Warner v. State, 2006 OK CR 40, 91 55, 144 P.3d 838, 866.
  6. Huddleston v. State, 1985 OK CR 12, 695 P.2d 8.
  7. Cody v. State, 1961 OK CR 43, II 35-39 361 P.2d 307, 319-20.
  8. 22 O.S.2001 § 304.
  9. Parker v. State, 1996 OK CR 19, I 24, 917 P.2d 980, 986.
  10. 21 O.S.Supp.2006, § 13.1(11).
  11. Anderson v. State, 2006 OK CR 6, I 25, 130 P.3d 273, 283.
  12. Patterson v. Oklahoma, 44 Okl.Cr. 298, 303, 280 P. 862, 864 (1929).
  13. 21 O.S.Supp.2006, § 1021(B).
  14. 21 O.S.Supp.2006, § 1123(A)(5)(d).
  15. 21 O.S.Supp.2006, § 1123(A)(5)(d).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 10 § 7115 (Supp. 2006) - Sexual abuse of a child
  • Okla. Stat. tit. 21 § 1123 (Supp. 2006) - Exhibition of obscene materials to a minor child
  • Okla. Stat. tit. 22 § 304 (2001) - Amendment of information
  • Okla. Stat. tit. 21 § 13.1 (Supp. 2006) - Sentencing provisions for certain offenses
  • Okla. Stat. tit. 21 § 1021 (Supp. 2003) - Exhibition of obscene materials to a minor child
  • Okla. Stat. tit. 22 § 916 (2001) - Lesser included offenses

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:

  • Dennis v. State, 1999 OK CR 23, I 14, 990 P.2d 277, 284.
  • Thrasher v. State, 2006 OK CR 15, I 12, 134 P.3d 846, 850.
  • McHam v. State, 2005 OK CR 28, I 30, 126 P.3d 662, 672.
  • Davis v. State, 2004 OK CR 36, I 33, 103 P.3d 70, 80.
  • Texas v. Cobb, 532 U.S. 162, 167, 121 S.Ct 1335, 1340, 149 L.Ed.2d 321, 328 (2001).
  • Warner v. State, 2006 OK CR 40, 91 55, 144 P.3d 838, 866.
  • Huddleston v. State, 1985 OK CR 12, 695 P.2d 8.
  • Cody v. State, 1961 OK CR 43, II 35-39, 361 P.2d 307, 319-20.
  • Parker v. State, 1996 OK CR 19, I 24, 917 P.2d 980, 986.
  • Anderson v. State, 2006 OK CR 6, I 25, 130 P.3d 273, 283.
  • Patterson v. Oklahoma, 44 Okl.Cr. 298, 303, 280 P. 862, 864 (1929).
  • Bland v. State, 2000 OK CR 11, I 56, 4 P.3d 702, 720.

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