Timmy Howard Dickey v The State Of Oklahoma

F-2011-1019

Filed: Apr. 24, 2013

Not for publication

Prevailing Party: Timmy Howard Dickey

Summary

Timmy Howard Dickey appealed his conviction for Child Sexual Abuse. Conviction and sentence upheld for 5 years in prison. Judge Lewis dissented.

Decision

Dickey's COUNT I CONVICTION for child sexual abuse is MODIFIED TO A CONVICTION FOR INCEST, under 21 O.S.Supp.2007, § 885, and Dickey's SENTENCE of imprisonment for 5 years is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there error in the trial court overruling defendant's demurrer and failing to direct a verdict in defendant's favor regarding the charge of sexual abuse due to lack of evidence that defendant was a person responsible for the health, safety or welfare of [B.D.]?
• Did the trial court err in failing to instruct the jury concerning the definition of a person responsible for a child's health, safety, and welfare?
• Did the court err in failing to instruct the jury that the term custodian means "an individual other than a parent, legal guardian or Indian custodian, to whom legal custody of the child has been awarded by the court"?

Findings

• the court erred
• the court erred
• the court erred
• the evidence was not sufficient
• the conviction was modified to incest
• the sentence was affirmed

F-2011-1019

Apr. 24, 2013

Timmy Howard Dickey

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE SMITH, VICE PRESIDING JUDGE:

Timmy Howard Dickey, Appellant, was tried by jury and convicted of Child Sexual Abuse, in violation of 21 O.S.Supp.2010, § 843.5(E) (Count I), in the District Court of Caddo County, Case No. CF-2010-279. In accord with the jury verdict, the Honorable S. Wyatt Hill, Associate District Judge, sentenced Dickey to imprisonment for 5 years. Dickey is properly before this Court on direct appeal. Dickey raises the following propositions of error:

I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S DEMURRER AND IN FAILING TO DIRECT A VERDICT IN DEFENDANT’S FAVOR AS TO THE CHARGE OF SEXUAL ABUSE SINCE THE STATE FAILED TO PRESENT ANY EVIDENCE THAT DEFENDANT WAS A PERSON RESPONSIBLE FOR THE HEALTH, SAFETY OR WELFARE OF [B.D.] AS THAT TERM IS DEFINED IN 10A O.S. § 1-1-105(50).

II. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY CONCERNING THE DEFINITION OF A PERSON RESPONSIBLE FOR A CHILD’S HEALTH, SAFETY, AND WELFARE, WHICH IS SET OUT IN OKLAHOMA UNIFORM JURY INSTRUCTION CR-4-40D.

III. THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT A CUSTODIAN AS THAT TERM IS USED IN 10A O.S. § 1-1-105(50) AND AS THAT TERM IS DEFINED IN 10A O.S. § 1-1-105(16), MEANS AN INDIVIDUAL OTHER THAN A PARENT, LEGAL GUARDIAN OR INDIAN CUSTODIAN, TO WHOM LEGAL CUSTODY OF THE CHILD HAS BEEN AWARDED BY THE COURT. AS USED IN THIS TITLE, THE TERM CUSTODIAN SHALL NOT MEAN THE OKLAHOMA DEPARTMENT OF HUMAN SERVICES.

Dickey was also ordered to pay costs, a Victim’s Compensation Assessment of $500, and restitution in the amount of $2,675. On December 6, 2010, Dickey was charged by Information with one count of Child Sexual Abuse, under 21 O.S.Supp.2010, § 843.5(E). The Information charged that Dickey committed this crime on or about the 4th day of December, 2010, by willfully and/or maliciously sexually abusing [B.D.], a minor child, who was 17 years of age at that time, by having sex with [B.D.] when he was a person responsible for her health & safety. The Affidavit of Probable Cause filed with the Information stated as follows: On December 5, 2010, 17-year-old B.D. reported she had been raped by her uncle, TIMMY HOWARD DICKEY. DICKEY is B.D.’s biological uncle. B.D.’s mother is DICKEY’S sister.

The propositions in this appeal are all premised on the same basic claim, i.e., that Dickey was not, in fact, a person responsible for the health, safety, or welfare of B.D., as is required for a conviction of child sexual abuse, under 21 O.S.Supp.2010, § 843.5(E). This Court agrees that the crime of child sexual abuse under § 843.5(E) requires, as an element, that the defendant be a person responsible for the health, safety, or welfare of the child victim. See 21 O.S.Supp.2010, § 843.5(E) (explicitly incorporating definition of sexual abuse found at 10A O.S., § 1-1-105(2)(b)); 10A O.S.Supp.2009, § 1-1-105(2)(b) (defining sexual abuse as requiring that abuse be by a person responsible for the health, safety, or welfare of the child); see also OUJI-CR 4-39 (listing person responsible for the child’s healthy, safety or welfare as first element of child sexual abuse under § 843.5(E)).

This Court recognizes that the record in this case is inadequate to establish that Dickey was, at the time he was alleged to have raped his niece, a person responsible for [B.D.’s] health, safety, or welfare. See 10A O.S.Supp.2009, § 1-1-105(50) (listing categories of persons who can qualify as a [p]erson responsible in this context); OUJI-CR 4-41 (defining person responsible element according to categories listed in 10A O.S., § 1-1-105(50)). The only person responsible category even potentially applicable to Dickey is that of custodian. However, the record in this case clearly establishes that Dickey cannot qualify as a custodian, either as this Court interpreted the term in Townsend v. State, 2006 OK CR 39, II 5-6, 144 P.3d 170, 172 (defining custodian to include a babysitter who voluntarily accepts responsibility for a child, for a significant period of time), or as it was more recently defined at 10A O.S.Supp.2010 § 1-1-105(16) (requiring that a custodian be someone granted legal custody by a court). Thus Dickey is correct that this Court cannot affirm his conviction for child sexual abuse under § 843.5(E).

Nevertheless, the record in this case leaves no real doubt regarding the fact that Dickey committed a serious sexual crime against his niece, B.D., just days before her 18th birthday. Furthermore, the Information clearly alleged that Dickey’s crime consisted of having sex with B.D., and there has never been any question in this case that B.D. is the biological niece of Dickey. The current case is one in which justice clearly calls for a modification of the crime upon which Dickey was convicted. The State has proposed that Dickey’s conviction be modified to either First-Degree Rape, under 21 O.S.Supp.2008, § 1114(A)(5), or Incest, under 21 O.S.Supp.2007, § 885. Although the Affidavit of Probable Cause put Dickey on notice that he was accused of raping B.D.—and the testimony of B.D. at trial would certainly support a conviction for first-degree rape—this Court finds that it is more appropriate to modify Dickey’s conviction to incest. During an afternoon interview on December 5, 2010, Dickey admitted to O.S.B.I. Agent Dannie Sanders that he had had consensual sex with B.D.—after repeatedly denying having any sexual encounter with his niece. Since Dickey admitted to having sexual intercourse with his niece (though not to raping her), and this act constitutes the crime of incest, under § 885, this Court finds that Dickey’s conviction in Count I should be modified to one for Incest. Dickey’s sentence shall remain the same as given by the jury, i.e., imprisonment for 5 years.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits, we find that Dickey’s conviction should be modified to one for Incest and that his sentence should be affirmed.

DECISION

Dickey’s COUNT I CONVICTION for child sexual abuse is MODIFIED TO A CONVICTION FOR INCEST, under 21 O.S.Supp.2007, § 885, and Dickey’s SENTENCE of imprisonment for 5 years is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 10A O.S. § 1-1-105(50)
2. Oklahoma Uniform Jury Instruction CR-4-40D
3. 10A O.S. § 1-1-105(16)
4. 10A O.S. § 1-1-105(51)
5. 21 O.S. § 843.5(E)
6. 10A O.S. § 1-1-105(2)(b)
7. 10A O.S.Supp.2009 § 1-1-105(50)
8. 21 O.S.Supp.2008 § 1114(A)(5)
9. 21 O.S.Supp.2007 § 885
10. 28 U.S.C. § 2106
11. 21 O.S.Supp.2007 § 885
12. 21 O.S. § 1066
13. 10A O.S. § 1-1-105(50)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5 (2010) - Child Sexual Abuse
• Okla. Stat. tit. 10A § 1-1-105(50) - Definition of a Person Responsible for a Child's Health, Safety, and Welfare
• Okla. Stat. tit. 10A § 1-1-105(16) - Definition of Custodian
• Okla. Stat. tit. 22 § 1066 (2011) - Modification of Conviction
• Okla. Stat. tit. 21 § 1114(A)(5) (2008) - First-Degree Rape
• Okla. Stat. tit. 21 § 885 (2007) - Incest

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:

• Cox v. State, 2006 OK CR 51, I 24, 152 P.3d 244, 253
• Huskey v. State, 1999 OK CR 3, I 12, 989 P.2d 1, 7
• Townsend v. State, 2006 OK CR 39, II 5-6, 144 P.3d 170, 172
• Brewer v. State, 2006 OK CR 16, 9 18, 133 P.3d 892, 895
• McArthur v. State, 1993 OK CR 48, I 10, 862 P.2d 482, 484-85
• Cox v. State, 1961 OK CR 46, II 8-9, 361 P.2d 506, 508
• Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
• Lozoya v. State, 1996 OK CR 55, I 17, 932 P.2d 22, 28
• State v. Ramsey, 1993 OK CR 54, I 7, 868 P.2d 709, 711
• Wallace v. State, 1997 OK CR 18, I 4, 935 P.2d 366, 369-370
• Virgin v. State, 1990 OK CR 27, I 7, 792 P.2d 1186, 1188
• State v. Young, 1999 OK CR 14, I 27, 989 P.2d 949, 955
• State v. Doak, 2007 OK CR 3, I 17, 154 P.3d 84, 87
• State ex. rel. Mashburn v. Stice, 2012 OK CR 14, I 11, 288 P.3d 247, 250