Thomas Ray Young v The State Of Oklahoma

F-2009-407

Filed: Jun. 29, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Thomas Ray Young appealed his conviction for four counts of Sexual Abuse of a Child. His conviction and sentence were upheld, but his sentences, which were originally set to run one after the other, were changed to be served at the same time. Judge Lumpkin dissented.

Decision

The judgment of the district court is AFFIRMED, but Appellant's four sentences of life imprisonment are MODIFIED to be served concurrently. 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 there an abuse of discretion in admitting sexual propensity evidence and traditional other-crimes evidence?
• Did Appellant receive a fair trial despite incorrect and confusing jury instructions?
• Did the trial court abuse its discretion by allowing expert witnesses to vouch for the complainant's credibility?
• Was there prosecutorial misconduct that denied Appellant a fair trial?
• Did cumulative error deny Appellant a fair trial?

Findings

• The trial court did not abuse its discretion in admitting sexual propensity evidence and traditional other-crimes evidence.
• There was no error in the jury instructions concerning sexual propensity evidence.
• The expert witnesses did not improperly vouch for the complainant's credibility.
• No prosecutorial misconduct denied Appellant a fair trial.
• Cumulative error did not deny Appellant a fair trial but justified modification of the sentences.
• Appellant's sentences of life imprisonment are modified to be served concurrently.

F-2009-407

Jun. 29, 2010

Thomas Ray Young

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE:

Appellant, Thomas Ray Young, was convicted by a jury in Oklahoma County District Court, Case No. CF-2005-2138, of four counts of Sexual Abuse of a Child (10 O.S.Supp.2002, § 7115(E)), After Conviction of Two Felonies. On April 30, 2009, the Honorable Virgil C. Black, District Judge, sentenced Appellant to four terms of life imprisonment, in accordance with the jury’s recommendation, and ordered that the sentences be served consecutively. This appeal followed. Appellant raises the following propositions of error:

1. The trial court abused its discretion in admitting sexual propensity evidence and traditional other-crimes evidence.
2. Appellant was denied a fair trial by incorrect and confusing jury instructions.
3. The trial court abused its discretion by allowing expert witnesses to vouch for the complainant’s credibility.
4. Prosecutorial misconduct denied Appellant a fair trial.
5. Cumulative error denied Appellant a fair trial.

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 Appellant’s convictions but find that modification of sentence is warranted.

Appellant was charged with sexually molesting his minor daughter. In Proposition 1, Appellant claims the trial court erred in permitting (1) evidence that Appellant had beaten his daughter at some time prior to the molestation events; (2) a suggestion that Appellant had also severely beaten his minor son on one occasion; and (3) testimony that in 1979, Appellant had sexually assaulted a teenage girl. The trial court did not abuse its discretion in permitting a reference to Appellant beating the complainant; this evidence was relevant as a possible factor in the complainant’s reluctance to report the sexual abuse. Dodd v. State, 2004 OK CR 31, 51, 100 P.3d 1017, 1034-45. The prosecutor’s reference to a claim that Appellant had also beaten his son was proper impeachment of a defense witness. Jiminez v. State, 1976 OK CR 23, 10, 545 P.2d 1281, 1284.

As for the evidence that Appellant had sexually assaulted a teenage girl in 1979: While 12 O.S.Supp.2007, § 2413 permits evidence of the defendant’s propensity to commit certain sexual offenses in certain circumstances, it is still the trial court’s responsibility to carefully consider whether the State’s proffer contains information whose probative value is substantially outweighed by its unfairly prejudicial effect. 12 O.S.Supp.2003, § 2403; James v. State, 2009 OK CR 8, 9, 204 P.3d 793, 797; Horn v. State, 2009 OK CR 7, 27, 204 P.3d 777, 784.

In this case, the sexual-propensity witness testified that some thirty-two years ago, when both she and Appellant were teenagers, he threatened her with a knife, kidnapped her, robbed her, and sexually assaulted her over a period of several hours. In our view, the circumstances of this event had marginal relevance to the issue of whether Appellant sexually molested his own daughter. While portions of the witness’s testimony may have been admissible, her references to crimes not of a sexual nature were more prejudicial than probative. Although we are confident these references did not influence the jury’s verdict as to Appellant’s guilt, they might well have affected the sentences imposed. We therefore MODIFY Appellant’s four sentences to be served concurrently. Lowery v. State, 2008 OK CR 26, 21-22, 192 P.3d 1264, 1273.

As to Proposition 2, the trial court’s cautionary instruction on sexual-propensity evidence was not taken from the Uniform Jury Instructions (OUJI); the OUJI Commission has yet to promulgate an instruction for this type of evidence. However, the instruction used was more specifically tailored to the evidence in question than the standard OUJI instruction on other-crimes evidence. We find no error in its use.

The trial court’s limiting instructions on other bad-acts evidence, based on OUJI-CR (2nd) No. 9-9, were entirely appropriate. We find no error here. As to Proposition 3, the State presented three witnesses with expertise in various aspects of child sexual abuse. None of them improperly vouched for the credibility of the complainant. Their education and experience helped the jurors understand the pressures and motivations which can arise in such cases. Harris v. State, 2004 OK CR 1, 39, 84 P.3d 731, 748; Johnson v. State, 2004 OK CR 25, 16, 95 P.3d 1099, 1104. Proposition 3 is denied.

In Proposition 4, Appellant complains about several comments made by the prosecutor in cross-examination and closing argument. Most were not objected to, and we find no plain error in them. Simpson v. State, 2010 OK CR 6, 25-26, – P.3d – The only objectionable comments dealt with the details of Appellant’s past crimes which bore no relevance to his propensity to commit sexual assault. Appellant’s status as a convicted felon was properly placed in evidence when he testified on his own behalf; but as we explained with regard to Proposition 1, the particulars of those past crimes did not tend to make the existence of any material fact more or less probable. Dodd v. State, 2004 OK CR 31, 70, 100 P.3d 1017, 1039; Robinson v. State, 1987 OK CR 195, 7, 743 P.2d 1088, 1090-91. However, any unfair prejudice from these comments is sufficiently remedied by our resolution of Proposition 1.

As to Proposition 5, for the reasons stated above, we find any errors complained of to be sufficiently remedied by modification of Appellant’s sentences. Watts v. State, 2008 OK CR 27, 20, 194 P.3d 133, 140. No new trial is warranted.

DECISION

The judgment of the district court is AFFIRMED, but Appellant’s four sentences of life imprisonment are MODIFIED to be served concurrently. 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. 10 O.S.Supp.2002, § 7115(E)
2. Dodd v. State, 2004 OK CR 31, I 51, 100 P.3d 1017, 1034-45
3. Jiminez v. State, 1976 OK CR 23, I 10, 545 P.2d 1281, 1284
4. 12 O.S.Supp.2007, § 2413
5. 12 O.S.Supp.2003, § 2403
6. James v. State, 2009 OK CR 8, 9 9, 204 P.3d 793, 797
7. Horn v. State, 2009 OK CR 7, IT 27, 204 P.3d 777, 784
8. Lowery v. State, 2008 OK CR 26, II 21-22, 192 P.3d 1264, 1273
9. Harris v. State, 2004 OK CR 1, I 39, 84 P.3d 731, 748
10. Johnson v. State, 2004 OK CR 25, I 16, 95 P.3d 1099, 1104
11. Simpson v. State, 2010 OK CR 6, 11 25-26, - P.3d -
12. Dodd v. State, 2004 OK CR 31, I 70, 100 P.3d 1017, 1039
13. Robinson v. State, 1987 OK CR 195, IT 7, 743 P.2d 1088, 1090-91
14. Watts v. State, 2008 OK CR 27, I 20, 194 P.3d 133, 140

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 (2002) - Sexual Abuse of a Child
• Okla. Stat. tit. 12 § 2413 (2007) - Evidence of Propensity
• Okla. Stat. tit. 12 § 2403 (2003) - Exclusion of Relevant Evidence
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing and Modification
• Okla. Stat. tit. 22 § 20 (2008) - Criminal Procedure

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:

• Dodd v. State, 2004 OK CR 31, I 51, 100 P.3d 1017, 1034-45.
• Jiminez v. State, 1976 OK CR 23, I 10, 545 P.2d 1281, 1284.
• James v. State, 2009 OK CR 8, 9 9, 204 P.3d 793, 797.
• Horn v. State, 2009 OK CR 7, IT 27, 204 P.3d 777, 784.
• Lowery v. State, 2008 OK CR 26, II 21-22, 192 P.3d 1264, 1273.
• Harris v. State, 2004 OK CR 1, I 39, 84 P.3d 731, 748.
• Johnson v. State, 2004 OK CR 25, I 16, 95 P.3d 1099, 1104.
• Simpson v. State, 2010 OK CR 6, 11 25-26, - P.3d -
• Robinson v. State, 1987 OK CR 195, IT 7, 743 P.2d 1088, 1090-91.
• Watts v. State, 2008 OK CR 27, I 20, 194 P.3d 133, 140.