Marcus Dejuan Berry v The State Of Oklahoma

F-2010-547

Filed: Jan. 24, 2012

Not for publication

Prevailing Party: Marcus Dejuan Berry

Summary

Marcus Dejuan Berry appealed his conviction for Lewd Molestation, Third Offense, and Kidnapping. His sentences included Life Without Parole and a $10,000 fine for Lewd Molestation, and Life and a $10,000 fine for Kidnapping, which were served one after the other. The Court agreed to reverse the Kidnapping conviction, stating that both charges stemmed from the same actions, which violates a law against double punishment. Judge Lumpkin disagreed, believing the conviction for Kidnapping should stand.

Decision

Berry's Count I conviction for Lewd Molestation and his sentence of imprisonment for Life Without Parole and a fine of $10,000 is AFFIRMED. Berry's conviction for Kidnapping on Count II is REVERSED and DISMISSED. In addition, this case is REMANDED for correction of the Judgment and Sentence document on Count I, through an order nunc pro tunc by the district court, to reflect that Berry was found guilty, after trial by jury, of Lewd Molestation, Third Offense. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a double punishment issue under Section 11 of Title 21 for the convictions of lewd molestation and kidnapping based on the same act?
• Did the trial court err in not providing separate verdict forms for the two theories of lewd molestation?
• Was the evidence sufficient to support the conviction for lewd molestation under both alternative theories?
• Did the actions of the defendant constitute a completed offense of lewd molestation before the act of kidnapping occurred?
• Was the State's argument regarding the intent of the defendant sufficient for the jury to find him guilty of both charges?

Findings

• The court erred in affirming the conviction for Lewd Molestation because it constituted the same act as the conviction for Kidnapping.
• The court reversed the conviction for Kidnapping under the principle of double punishment per Section 11 of Title 21.
• The court affirmed the conviction and sentence for Lewd Molestation and ordered the correction of the Judgment and Sentence documents.

F-2010-547

Jan. 24, 2012

Marcus Dejuan Berry

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE:

Marcus Dejuan Berry was tried by jury and convicted of Lewd Molestation, Third Offense, under 21 O.S.Supp.2009, § 1123(A) (Count I); and Kidnapping AFCF, under 21 O.S.Supp.2009, § 741 (Count II), in Tulsa County, Case No. CF-2009-3832. In accord with the jury’s recommendation, the Honorable William C. Kellough, District Judge, sentenced Berry to imprisonment for Life Without Parole and a fine of $10,000 on Count I, and to imprisonment for Life and a fine of $10,000 on Count II, run consecutively. Berry appeals his convictions and sentences and is properly before this Court.

FACTS

Around 8:00 p.m., on August 12, 2009, C.S., who was twenty-three months old, wandered out of her grandmother’s Tulsa home while her mother was busy out back and her grandmother was working in the home. It was Laura Gonzalez’s birthday, and she had brought her two daughters to their grandmother’s home for the evening. Although they weren’t really celebrating the birthday, Laura testified that she had dressed C.S. up and that C.S. was wearing a long, pink, eyelet-lace dress with a long-sleeve, pink shirt. Anita Gonzalez, C.S.’s grandmother, testified that C.S. and her seven-year-old sister were in the living room watching television and that by 8:00 p.m., C.S. had fallen asleep on the floor. C.S.’s uncle, Jose Fabian Gonzalez (Fabian), who was 19, testified that C.S. was asleep on the floor around 8:00 p.m. and that he moved her to the couch and then went to his room. A short time later, C.S. woke up and began wandering around. At the time, Laura was busy washing and cleaning out her car, which was parked behind the home, and Anita was busy cleaning and sorting in the home. When Fabian came back out of his room, he noticed C.S. was no longer in the living room. When he asked Anita where she was, she indicated that C.S. was in a bedroom or perhaps with her mother outside. When he asked Laura where she was, she indicated that C.S. was inside with her grandmother. At that point they all started looking all over the house for C.S. and then called 911 when they couldn’t find her.

Eduardo Abarca, a neighbor from a few houses down, was outside throwing a ball to his dog when he noticed the pink-clad toddler kneeling in the street on Yorktown Avenue. She was throwing sticks at the dogs that were in the yard at the house across the street from her grandmother’s home. Abarca noticed a man pull up in a white truck with a red stripe, look at the little girl crouched in the street, and then make a beckoning motion for her to come to him. C.S. stood up, hesitated, and then walked over to the driver’s door and extended her arms toward the driver. The driver reached out the window, picked the little girl up, placed her on the seat next to him, and drove away. Abarca went into his house and remarked to his wife, That would be some shit if I-if what I saw just-just saw was a little girl get kidnapped. Abarca did not, however, report what he had seen to anyone until he heard the screaming and yelling of the Gonzalez family in the neighborhood, as they went door-to-door in search of C.S. Abarca identified Defendant Marcus Berry as the man driving the truck who took the little girl. Berry was 56 years old at the time.

Not long after 8:00 p.m. that same evening, Tulsa Police Officers Mark Wollmershauser, Jr., and Stephanie Blann were returning to their district after responding to a 911 call. They were driving east along West Apache-east of 33rd West Avenue, in a sparsely populated area of Tulsa-when Wollmershauser, who was driving, noticed the tail section of an older pickup truck parked 50 to 75 feet north of the road. The truck was parked on a gravel inlet, in an area of high brush and trees. Thinking that the truck might be an abandoned stolen vehicle, Wollmershauser considered doing nothing and drove a few blocks further. He testified that he then reminded himself, I’m not that kind of officer, and asked Blann if she’d seen the truck. She hadn’t. Wollmershauser then turned around and went back to check it out. When they pulled in and Wollmershauser shined his spotlight on the rear of the truck, the officers could see an adult black male, i.e., Marcus Berry, turn and look at them and then begin moving around, rocking, ducking, and looking down at his waist area. Worried that the man was retrieving a weapon, Wollmershauser ordered him to put his hands outside the truck. The man briefly showed his hands through his window, but then pulled them back in and continued moving around. As the officers approached, the truck began backing up, and the officers took out their weapons. Wollmershauser again ordered the man to show his hands and put the truck in park, which Berry then did. When Wollmershauser came up to the driver’s window, the first thing he noticed was that Berry’s khaki pants were unbuttoned, unzipped, and pulled down around his thighs and that his belt was undone. His grey boxer shorts, however, were pulled up. When asked if someone was with him, Berry responded, Yes, my daughter-in-law. The officers assumed Berry had been having sex with an adult woman, who was no longer in the truck, and began glancing around in the tall grass surrounding the truck. Wollmershauser then asked, Well, where is she? Berry then moved his right arm and revealed little C.S., sitting right next to him on the bench seat. She was still wearing the little pink dress and shirt, but was not wearing a diaper or panties. The officers immediately decided to arrest Berry for some kind of sexual crime against the child and got him out of the truck and put him in handcuffs. As Wollmershauser was walking Berry to his police car, Berry stated, Kill me. Just fucking kill me now. Wollmershauser was holding onto Berry’s shirt and pants, which were falling down, when he saw a wet spot on the shirt and asked Berry what it was. Berry indicated it was sweat, and when Wollmershauser asked if it was come, Berry responded, Uh, I don’t know. When asked who the little girl was, Berry stated that he had found her walking along the side of the road. At that point, standing next to Wollmershauser’s patrol vehicle, a dispatch came over the radio about a missing two-year-old Hispanic female wearing a pink dress. The officers knew immediately that they had found this child and informed dispatch. Around 9:15 p.m., the Gonzalez family was informed that C.S. had been found and was being taken to the hospital, where she was reunited with her mother later that night. Officers Wollmershauser and Blann both testified about how unusually unresponsive and unemotional C.S. was that night. Blann testified that she tried to comfort the child as she held her, but that C.S. didn’t smile, cry, make any vocalizations, or even look at her.

Vanessa Bowmaster, the EMSA paramedic who first examined C.S., likewise described her as not making a sound, completely limp, non-responsive to stimuli (including the teddy bear they offered her), and totally non-interactive for 30-45 minutes. Bowmaster did not, however, find evidence of physical harm or trauma to C.S., other than a little bit of dried blood on her lip and an abrasion on her lower leg. C.S. was then transported to Hillcrest Hospital for a sexual assault examination. Pat Evans was the SANE (Sexual Assault Nurse Examiner) nurse who examined C.S. She testified that the results of C.S.’s sexual assault examination were normal, with no sign of trauma. Evans described C.S. as listless and just lying there during the exam, however, which was quite unusual. Both Evans and an officer who observed the exam testified that C.S. did not become interactive or start acting normal until she was reunited with her mother after the exam. DNA testing done on the swabs taken from C.S.’s fingernails, cheek, neck, navel, mouth, gluteal crease, anus, external genitalia, and vagina did not reveal any evidence of seminal fluid or any DNA material from Berry. Testing also did not reveal any seminal fluid or DNA material on Berry’s khaki pants, shirt, or underwear, or on C.S.’s clothes. Initial testing did reveal possible amylase activity, which is an enzyme concentrated in saliva, on swabs taken from C.S.’s cheek, external genitalia, and vagina, but further testing did not confirm the presence of saliva. And DNA testing done on the various swabs taken from Berry, including from his penis, did not reveal any DNA material from C.S. Ultimately, testing could not confirm the presence of either saliva or semen on any of the items or areas tested, on either Berry or C.S. Nor did testing reveal any of Berry’s DNA on C.S. or any of C.S.’s DNA on Berry.

ANALYSIS

In Proposition I, Berry raises a double punishment claim under Section 11 of Title 21. Berry argues that if the jury convicted him of lewd molestation based on the first alternative charged against him, his Count I conviction for Lewd Molestation is based upon the same act as his Count II conviction for Kidnapping. Because Berry did not raise this claim in the trial court, we review it only for plain error. This Court has consistently held that Section 11 prohibits convicting a defendant of more than one offense based upon the same act. In Davis v. State, 1999 OK CR 48, 993 P.2d 124, this Court summarized the proper approach to claims raised under Section 11 as follows: The proper analysis of a claim raised under Section 11 is [] to focus on the relationship between the crimes. If the crimes truly arise out of one act, as they did in Hale, then Section 11 prohibits prosecution for more than one crime. One act that violates two criminal provisions cannot be punished twice, absent specific legislative intent.

In Hale v. State, 1995 OK CR 7, 888 P.2d 1027, this Court overturned the defendant’s conviction for incest under Section 11, because it was based upon the same act of forced sexual intercourse with his sister as his conviction for first-degree rape. Although the Davis majority rejected the ultimate objective and primary offense analysis of the Hale majority, the Davis majority likewise clearly affirmed the result in Hale. And this Court has consistently interpreted Section 11 as prohibiting separate criminal convictions based upon the same act or series of acts.

In the Second Amended Information, Berry was charged with lewd molestation in Count I under two theories, under two separate sub-sections: (1) under 21 O.S.Supp.2009, § 1123(A)(3), that he asked, invited, enticed, or persuaded a child under age 16 to go alone with [him] to a secluded, remote, or secret place, with the unlawful and willful intent and purpose then and there to commit a crime against public decency and morality with the child; and in the alternative, (2) under 21 O.S.Supp.2009, § 1123(A)(2), that he looked upon, touched, and felt the body and private parts of a child under 16 in a lewd and lascivious manner. The jury was likewise instructed on both of these theories of lewd molestation (in reverse order) and delivered a general verdict of guilty.

Hence Berry’s jurors were instructed that they could convict him of lewd molestation if they unanimously determined: First, the defendant was at least three years older than the victim; Second, who knowingly and intentionally; Third, asked, invited, enticed, or persuaded; Fourth, any child under sixteen years of age [i.e., C.S.]; Fifth, to go alone with [him]; Sixth, to a secluded, remote, or secret place; Seventh, with the unlawful and willful intent and purpose; Eighth, to commit lewd molestation [upon her] by looking upon, touching, mauling, or feeling [her] body or private parts in a lewd or lascivious manner.

During the instructions conference, the trial court commented as follows on the difference between the two options provided in Instruction 19 for convicting the defendant of lewd molestation: In the first option, the jury has the prerogative of finding that the evidence showed that the lewd and lascivious acts actually occurred. In the second alternative, as I read it, it becomes more of an attempt crime; that is, the removal of a child to a secret or secluded place with the unlawful and willful intent and purpose. So it seems to me the legislature is providing these two alternatives that are similar, but there are rather important distinctions. The Tulsa District Attorney, who tried the case along with an assistant district attorney, confirmed that this interpretation was shared by the State.

During closing argument, the State repeatedly emphasized its theory of the case, namely, that Berry kidnapped C.S. with the sole purpose of sexually molesting her. The Assistant District Attorney began his initial closing argument by arguing, Ladies and gentlemen, there’s no doubt about it: Marcus Berry kidnapped [C.S.] on April [sic] the 12th, 2009, with the only intent of sexually molesting her. He argued that [c]hild molesters are opportunists, that Berry was a child molester, and that [C.S.] was Mr. Berry’s opportunity on August the 12th, 2009, as he was driving through that neighborhood. As far as the kidnapping count, the prosecutor emphasized that [i]t doesn’t matter for what period of time, i.e., for how long, Berry intended to confine C.S., and that [h]e intended to confine her when he took her from her home. He then pointed out the two theories of lewd molestation that were contained in the instruction for lewd molestation and summarized them.

This Court finds that in this particular case, any Count I conviction of lewd molestation under the asked, invited, enticed, or persuaded theory would be based upon the same act as Berry’s Count II conviction for kidnapping. Under this theory of lewd molestation, Berry committed the crime of lewd molestation when he beckoned C.S. over to his truck and then picked her up and placed her on the seat next to him, with the intent to take her to some secluded place and molest her. This is the same act (or series of acts) by which Berry kidnapped C.S., i.e., when he beckoned her over to his truck and then picked her up and placed her on the seat next to him, with the intent to confine her (in order to molest her). Under this theory of lewd molestation, Berry’s crimes of lewd molestation and kidnapping were committed by the same acts, over exactly the same time period, and against the same victim.

This Court notes that the crime of lewd molestation under § 1123(A)(3) is for asking/inviting/enticing/persuading the child victim to go alone with [the defendant] to a secluded, remote, or secret place, with the intent to molest that child. The focus of the statute is on defendants who approach children and attempt to seclude and isolate them, by tempting them to go alone with the defendant, to a secret place, away from the gaze and protection of others, in order to molest them.

Hence the asking, inviting, enticing, or persuading of the child victim must have a certain content, i.e., it must be to go alone with [the defendant] to a secluded, remote, or secret place. This particular crime was not complete in the current case until Berry actually picked up little C.S. and placed her on the seat next to him. Successfully beckoning C.S. over to his truck, which was within a public roadway, did not constitute enticing or persuading C.S. to go alone with him to a secluded, remote, or secret place. Merely beckoning this (not-quite) two-year-old Hispanic child over to the side of Berry’s truck, by itself, did not communicate the required content under § 1123(A)(3). It is only when C.S. is actually lifted up into Berry’s truck and placed on the seat next to him that the forbidden content of what Berry is enticing and persuading C.S. to do becomes apparent and is accomplished.

It is only at this point that Berry has actually enticed or persuaded C.S., to go alone with him, to a secluded, remote, or secret place, where he intends to molest her. This Court notes that although Berry’s later actions and how he and C.S. are found provide evidence of Berry’s intent to molest C.S., the enticing/persuading crime of lewd molestation was accomplished when C.S. was taken into Berry’s truck.

It must be emphasized that this Court does not conclude that a victim must be actually seized by the defendant (as C.S. was) or that specific words must be used to convey the prohibited asking, invitation, enticement, or persuasion under § 1123(A)(3). In fact, as in the current case, evidence of actual words being used is not even required. Rather, the entire circumstances of the encounter must be evaluated by the fact-finder to determine if the prohibited type of asking, inviting, enticing, or persuading occurred. When Berry successfully gets C.S. into his truck, with the intent to molest her, he has completed the crime of § 1123(A)(3) lewd molestation. And it is at this same moment and by exactly the same act(s) that Berry kidnaps little C.S. Hence the crime of asked/invited/enticed/persuaded lewd molestation and the crime of kidnapping were committed by the same act(s) in this case. Thus it violates Oklahoma’s Section 11 prohibition against double punishment to separately convict and punish Berry for both of these crimes.

The State argues in its brief that Berry did actually molest C.S. and that this act was separate and distinct from his act of kidnapping her. This Court agrees that if Berry had been charged only with lewd molestation by looking upon, touching, mauling, or feeling the private parts of C.S., there would be no Section 11 double punishment issue in this case, since the crime of kidnapping would be totally separate and prior to the crime of lewd molestation. In addition, if Berry’s jury had been provided with separate verdict forms for the two theories of lewd molestation charged against him, and the jury had found him guilty under both theories, this would likewise avoid the Section 11 double punishment problem in this case.

Hence this Court finds plain error in the current case in this regard. Because it is entirely possible that Berry’s jury convicted him of lewd molestation under the asked, invited, enticed, or persuaded theory, and did not also unanimously conclude that he had actually molested C.S., i.e., did not also find him guilty under the looked upon, touched, mauled, felt theory, this Court cannot uphold Berry’s separate conviction for kidnapping. Under Section 11 and the specific facts and circumstances of this case, this Court cannot affirm both Berry’s Count I lewd molestation conviction and his Count II kidnapping conviction. Thus we reverse his kidnapping conviction.

This Court notes that this decision is not a finding that little C.S. was not actually kidnapped. She undoubtedly was kidnapped. Nor is this decision a finding that C.S. was not actually molested by Berry. She may have been actually molested (looked upon, touched, mauled, or felt)-and if not actually molested, she was almost certainly about to be molested-and Berry does not challenge the sufficiency of the evidence on either theory of lewd molestation charged against him. Hence this Court need not and does not decide this issue. Rather, because it is possible and perhaps even likely that Berry’s jury convicted him of lewd molestation based upon the same act as the act of kidnapping C.S.-when he successfully enticed her over to his truck and then lifted her up into the truck with him-this Court must reverse Berry’s kidnapping conviction (which carries a lesser sentence) under Oklahoma law.

This Court notes that Berry’s jury convicted him upon both counts charged in only 47 minutes and that the evidence on the asked, invited, enticed, or persuaded theory of lewd molestation was overwhelming.

In Proposition II, Berry raises a number of errors made within the Judgment and Sentence documents in this case. The State acknowledges that these documents are inaccurate and should be corrected. Regarding Count II, this claim is rendered moot by this Court’s decision on Proposition I that this conviction must be reversed. Regarding Count I, however, this Court orders that the Judgment and Sentence for Berry’s Count I conviction for Lewd Molestation should be corrected to accurately reflect what occurred in this case. Hence, after thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, this Court affirms Berry’s Count I conviction and sentence for lewd molestation, but finds that his Count II conviction for kidnapping must be reversed and that the Judgment and Sentence on Count I must be corrected.

DECISION

Berry’s Count I conviction for Lewd Molestation and his sentence of imprisonment for Life Without Parole and a fine of $10,000 is AFFIRMED. Berry’s conviction for Kidnapping on Count II is REVERSED and DISMISSED. In addition, this case is REMANDED for correction of the Judgment and Sentence document on Count I, through an order nunc pro tunc by the district court, to reflect that Berry was found guilty, after trial by jury, of Lewd Molestation, Third Offense. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Footnotes:

1. 21 O.S.Supp.2009, § 1123(A)(5)
2. 21 O.S.Supp.2009, § 741
3. 21 O.S.2001, § 11
4. 21 O.S.2001, § 1123(A)(2)
5. 21 O.S.Supp.2009, § 1123(A)(3)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123(A) - Lewd Molestation
• Okla. Stat. tit. 21 § 741 - Kidnapping
• Okla. Stat. tit. 21 § 11 - Prohibition against Double Punishment

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:

• Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126
• Hale v. State, 1995 OK CR 7, 888 P.2d 1027, 1030
• Logsdon v. State, 2010 OK CR 7, 231 P.3d 1156, 1164
• Wilson v. State, 1998 OK CR 73, 983 P.2d 448, 463
• Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520-521
• Browning v. State, 2006 OK CR 8, 134 P.3d 816, 838
• Ziegler v. State, 1980 OK CR 23, 610 P.2d 251, 254
• King v. State, 1971 OK CR 364, 489 P.2d 493, 493-494
• Munn v. State, 1969 OK CR 245, 459 P.2d 628, 631
• Young v. State, 1999 OK CR 14, 989 P.2d 949, 955