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F-2010-615

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Lawrence Grant Stewart v The State of Oklahoma

F-2010-615

Filed: Sep. 1, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Lawrence Grant Stewart appealed his conviction for several crimes, including child sexual abuse. His conviction included sentences for lewd molestation and rape, resulting in a total punishment of 25 to 30 years for different counts, all to be served one after the other. A judge confirmed this sentence. Stewart argued that he did not get fair legal help during his trial, and he believed he was being punished too many times for the same actions. The court looked over his claims and decided to reverse one charge of child sexual abuse, but they upheld the other convictions and sentences. In total, the court's decision was that Count 5, Child Sexual Abuse, was reversed, but the rest of the judgments were kept the same. Judge Lumpkin disagreed with the outcome on some points.

Decision

Count 5, Child Sexual Abuse, is REVERSED WITH INSTRUCTIONS TO DISMISS. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. 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 ineffective assistance of trial counsel?
  • Did multiple convictions and sentences for Child Sexual Abuse and the acts upon which that charge is based violate protections from double jeopardy and double punishment?
  • Did multiple convictions and sentences for Lewd Molestation and Rape by Instrumentation violate protections from double jeopardy and double punishment?
  • Was the consecutive service of Appellant's sentences excessive under the circumstances?

Findings

  • The court denied the claim of ineffective assistance of trial counsel.
  • Count 5, Child Sexual Abuse, is reversed with instructions to dismiss due to double punishment.
  • The court denied the claim of double punishment for separate convictions of Lewd Molestation and Rape by Instrumentation.
  • The court denied the assertion that consecutive sentences were excessive and upheld the trial court's discretion.

F-2010-615

Sep. 1, 2011

Lawrence Grant Stewart

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Lawrence Grant Stewart, was convicted by a jury in Pontotoc County District Court, Case No. CF-2009-49, of several crimes involving child sexual abuse: Count 1, Lewd Molestation of a Minor (21 O.S.Supp.2008, § 1123); Count 2, Lewd Molestation of a Minor (21 O.S.Supp.2008, § 1123); Count 3, First Degree Rape by Instrumentation (21 O.S.Supp.2007, § 1111.1); Count 4, Forcible Oral Sodomy (21 O.S.Supp.2007, § 888); Count 5, Child Sexual Abuse (10 O.S.Supp.2008, § 7115); and Count 6, First Degree Rape (21 O.S.Supp.2008, § 1114). The jury recommended punishment as follows: Counts 1, 2, 3 and 6, twenty-five years imprisonment; Count 4, twenty years imprisonment; and Count 5, thirty years imprisonment. On June 24, 2010, the Honorable Thomas S. Landrith, District Judge, sentenced Appellant in accordance with the jury’s recommendation, ordering all sentences to be served consecutively to one another. This appeal followed. Appellant is required to serve at least 85% of his sentences before being eligible for parole. 21 O.S. § 13.1(10), (15) (18).

Appellant raises the following propositions of error:

1. Appellant was denied the effective assistance of trial counsel.
2. Multiple convictions and sentences for both Child Sexual Abuse (Count 5), and the acts upon which that charge is based (Counts 1-4 and 6), violate Appellant’s protections from double jeopardy and double punishment.
3. Multiple convictions and sentences for both Lewd Molestation (Count 1) and Rape by Instrumentation (Count 3) violate Appellant’s protections from double jeopardy and double punishment.
4. Consecutive service of Appellant’s sentences is excessive under the circumstances of the case.

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 reverse one count on double-punishment grounds, but otherwise affirm.

In Proposition 1, Appellant claims his trial counsel was ineffective for disclosing to the jury, during Appellant’s direct examination, (1) Appellant’s criminal history (all of which he claims was inadmissible for impeachment purposes) and (2) Appellant’s refusal to talk to police about the charges (thereby commenting on Appellant’s exercise of his constitutional right to silence). In evaluating counsel’s performance, we presume that counsel was competent and that his strategic choices were reasonable ones. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); Sellers v. State, 1995 OK CR 11, I 9, 889 P.2d 895, 898. Revealing the defendant’s criminal history can be a sound trial strategy, even when the admissibility of some of it is questionable. See Lamb v. State, 1988 OK CR 106, 2 IT 8, 756 P.2d 1236, 1238; Stover v. State, 1984 OK CR 14, I 12, 674 P.2d 566, 568. And a defendant’s post-arrest silence is inadmissible only if it is clearly the product of specific warnings about the right to silence – a fact that is absent from this record. Guy v. State, 1989 OK CR 35, I 14, 778 P.2d 470, 474; Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982). Trial counsel’s performance is not judged by whether another attorney might have made different strategic choices. Stover, 1984 OK CR 14 at 7, 674 P.2d at 568. We cannot say that trial counsel’s strategic decisions were so inappropriate as to undermine confidence in the outcome of Appellant’s trial. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Phillips v. State, 1999 OK CR 38, I 129, 989 P.2d 1017, 1049. Proposition 1 is denied.

As to Proposition 2, the State failed to allege any specific sexual activity as the basis for the charge in Count 5, Child Sexual Abuse. The State’s theory seems to be that Oklahoma law permits a separate conviction and sentence, in addition to that for the underlying sexual abuse, when the abuser is a parent, guardian, or other custodian of the child. We find no authority supporting this position. See 10 O.S.Supp.2008, 7115(E), 10 O.S.Supp.2007, § 7102(B); OUJI- CR (2nd) No. 4-39. The conviction and sentence on Count 5 constitutes double punishment under these facts. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); McKinnon v. State, 1982 OK CR 153, 99 5-8, 651 P.2d 1066, 1067. Accordingly, Count 5 is REVERSED WITH INSTRUCTIONS TO DISMISS.

As to Proposition 3, separate convictions for fondling the complainant’s genitals, and for digital penetration of the complainant’s genitals, did not constitute double punishment for a single criminal act under the evidence presented. The complainant testified that Appellant touched her private parts while she was clothed, and digitally penetrated her after he made her undress. Evidence of discrete criminal acts supports separate convictions for each offense. Salyer v. State, 1988 OK CR 184, I 15, 761 P.2d 890, 893; Peninger v. State, 1986 OK CR 113, II 19-20, 721 P.2d 1338, 1341-42. Proposition 3 is denied.

Finally, as to Proposition 4, the decision to order consecutive or concurrent service of sentences is a matter within the trial court’s discretion, and we find that discretion was properly exercised here. 22 O.S.2001, § 976; Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534. Proposition 4 is denied.

DECISION

Count 5, Child Sexual Abuse, is REVERSED WITH INSTRUCTIONS TO DISMISS. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. 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.2008, § 1123
  2. 21 O.S.Supp.2007, § 1111.1
  3. 21 O.S.Supp.2007, § 888
  4. 10 O.S.Supp.2008, § 7115
  5. 21 O.S.Supp.2008, § 1114
  6. 21 O.S. § 13. 1(10), (15) (18)
  7. 10 O.S.Supp.2008, 7115(E)
  8. 10 O.S.Supp.2007, § 7102(B)
  9. OUJI- CR (2nd) No. 4-39
  10. Blockburger v. United States, 284 U.S. 299 (1932)
  11. Harris v. Oklahoma, 433 U.S. 682 (1977)
  12. McKinnon v. State, 1982 OK CR 153, 99 5-8, 651 P.2d 1066 (1982)
  13. 22 O.S.2001, § 976
  14. Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530 (1997)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1123 (2008) - Lewd Molestation of a Minor
  • Okla. Stat. tit. 21 § 1111.1 (2007) - First Degree Rape by Instrumentation
  • Okla. Stat. tit. 21 § 888 (2007) - Forcible Oral Sodomy
  • Okla. Stat. tit. 10 § 7115 (2008) - Child Sexual Abuse
  • Okla. Stat. tit. 21 § 1114 (2008) - First Degree Rape
  • Okla. Stat. tit. 21 § 13.1 (2011) - Parole Eligibility
  • Okla. Stat. tit. 10 § 7115(E) (2008) - Child Sexual Abuse
  • Okla. Stat. tit. 10 § 7102(B) (2007) - Definitions
  • Okla. Stat. tit. 22 § 976 (2001) - Sentences

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:

  • Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)
  • Sellers v. State, 1995 OK CR 11, I 9, 889 P.2d 895, 898
  • Lamb v. State, 1988 OK CR 106, 2 IT 8, 756 P.2d 1236, 1238
  • Stover v. State, 1984 OK CR 14, I 12, 674 P.2d 566, 568
  • Guy v. State, 1989 OK CR 35, I 14, 778 P.2d 470, 474
  • Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982)
  • Phillips v. State, 1999 OK CR 38, I 129, 989 P.2d 1017, 1049
  • Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)
  • Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977)
  • McKinnon v. State, 1982 OK CR 153, 99 5-8, 651 P.2d 1066, 1067
  • Salyer v. State, 1988 OK CR 184, I 15, 761 P.2d 890, 893
  • Peninger v. State, 1986 OK CR 113, II 19-20, 721 P.2d 1338, 1341-42
  • Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534

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