Dre Edward Barham v The State Of Oklahoma

F-2012-633

Filed: Apr. 25, 2014

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Dre Edward Barham appealed his conviction for lewd molestation and forcible sodomy. The court affirmed his conviction for forcible sodomy and modified the sentence but reversed the conviction for lewd molestation, ordering it to be dismissed. Judge Lumpkin dissented.

Decision

The Judgment of the district court and his twelve year sentence on Count 3 is AFFIRMED. The $5000.00 fine imposed on Count 3 is VACATED. Barham's conviction on Count 2 is REVERSED with Instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there a violation of double jeopardy and double punishment due to simultaneous convictions for Lewd Molestation and Forcible Sodomy?
• did the evidence sufficiently support the conviction for Lewd Molestation?
• did the admission of other crimes evidence deprive the appellant of a fair trial?
• did the trial court abuse its discretion by refusing to consider concurrent sentences because he exercised his right to a jury trial?
• was the jury erroneously instructed regarding the range of punishment for fines in Counts 1 and 2?
• did prosecutorial misconduct deprive the appellant of a fair trial and lead to excessive sentences?
• are the sentences imposed on the appellant excessive?
• did the cumulative effect of all errors raised deprive the appellant of a fair trial?

Findings

• Barham's conviction for lewd molestation must be reversed with instructions to dismiss.
• The judgment of the district court on Count 3 - Forcible Sodomy is affirmed.
• Barham's sentence for Forcible Sodomy must be modified due to erroneous instruction on the range of punishment regarding a fine.
• The admission of other crimes evidence did not deprive Barham of a fair trial.
• Prosecutorial misconduct did not deprive Barham of a fair trial.
• Barham's twelve-year sentence for forcible sodomy does not meet the excessive standard and no further relief is warranted.
• Other than the multiple punishment and instructional error, there are no cumulative errors that merit additional relief.
• The $5,000.00 fine imposed on Count 3 is vacated.

F-2012-633

Apr. 25, 2014

Dre Edward Barham

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Dre Edward Barham was tried by jury in the District Court of Nowata County, Case No. CF-2010-64, and convicted of Lewd Molestation (Count 2), in violation of 21 O.S.Supp.2009, § 1123, and Forcible Sodomy (Count 3), in violation of 21 O.S.Supp.2009, § 888. The jury set punishment at five years imprisonment and a $5,000.00 fine on Count 2 and twelve years imprisonment and a $5,000.00 fine on Count 3. The Honorable Curtis L. DeLapp, who presided at trial, sentenced Barham accordingly and ordered the sentences to be served consecutively. From this Judgment and Sentence Barham appeals, raising the following issues: (1) whether his simultaneous convictions for Lewd Molestation and Forcible Sodomy violated the prohibitions against double jeopardy and double punishment; (2) whether the evidence was sufficient to convict him of Lewd Molestation; (3) whether the admission of other crimes evidence deprived him of a fair trial; (4) whether the trial court abused its discretion by refusing to consider concurrent sentences because he exercised his right to a jury trial; (5) whether the jury was erroneously instructed as to the range of punishment for fines in Counts 1 and 2; (6) whether prosecutorial misconduct deprived him of a fair trial and caused the jury to render excessive sentences; (7) whether his sentences are excessive; and (8) whether the cumulative effect of all the errors raised deprived him of a fair trial.

We affirm the Judgment of the District Court on Count 3 – Forcible Sodomy. Modification of Barham’s sentence on this conviction, however, is required. Furthermore, we find that Barham’s conviction for Lewd Molestation (Count 2) must be reversed with instructions to dismiss for the reasons discussed below.

1. Multiple Punishment
Barham’s claim that his convictions for lewd molestation and forcible sodomy violate the prohibitions against multiple punishment for a single offense has merit and requires relief. Barham raised the multiple punishment issue before trial but renewed neither his constitutional double jeopardy claim nor his statutory multiple punishment claim at trial. Review is for plain error only. To be entitled to relief under the plain error doctrine, the appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. If these elements are proven, this Court will correct plain error only if the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Section 11 provides in relevant part that:

[A]n act or omission which is made punishable in different ways by different provisions of this title may be punished under any such provisions, but in no case can a criminal act or omission be punished under more than one section of law; and an acquittal or conviction and sentence under one section of law bars the prosecution for the same act or omission under any other section of law.

Based on the evidence presented and the State’s theory of the case, we find these actions cannot be parsed into two crimes and that multiple convictions is prohibited by Section 11 and our case law. Therefore, Barham’s conviction for lewd molestation must be reversed with instructions to dismiss. The resolution of this claim renders the claims raised in Propositions 2 and 4 moot.

2. Other Crimes Evidence
Reviewing for plain error only, we find Barham has not shown that admission of evidence about him mixing cough syrup with the victim’s Sprite and being present when his friends plied her with alcohol was error. The evidence was inextricably intertwined with the charged offense and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. The challenged evidence was directly connected to the factual circumstances of the crime and provided necessary contextual and background information to the jury. There was no error in the admission of this evidence and this claim is denied.

3. Jury Instruction on Range of Punishment
The forcible sodomy statute (21 O.S.Supp.2009, § 888) does not provide for a fine upon conviction. When a statute does not prescribe a fine upon conviction, Title 21 O.S.Supp.2010, § 64 applies. Any fine under Section 64 is optional rather than mandatory. Both the court’s instruction on the range of punishment for forcible sodomy and its response to the jury’s question during deliberations about a fine were erroneous because each conveyed that some amount of fine up to $10,000.00 was mandatory. To remedy this plain error, we vacate Barham’s $5,000.00 fine on Count 3.

4. Prosecutorial Misconduct
Prosecutorial misconduct did not deprive Barham of a fair trial. The record shows that the prosecutor did not invoke societal alarm during closing argument. Nor did the prosecutor commit misconduct by presenting evidence of alleged other crimes because the evidence was inextricably intertwined with and directly connected to the factual circumstances of the charged crimes.

5. Excessive Sentence
Barham’s multiple punishment claim has merit and requires dismissal of his lewd molestation conviction. His sentence for forcible sodomy must be modified based on an erroneous instruction on the range of punishment concerning a fine. The other claims of error he contends wrongly affected his sentence have been rejected. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Barham’s twelve year sentence for forcible sodomy does not meet that test and no further relief is warranted.

6. Cumulative Error
Other than the multiple punishment error and instructional error discussed above, there are no other errors that merit additional relief in this case based on a cumulative error analysis. This claim is denied.

DECISION

The Judgment of the district court and his twelve year sentence on Count 3 is AFFIRMED. The $5,000.00 fine imposed on Count 3 is VACATED. Barham’s conviction on Count 2 is REVERSED with Instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF NOWATA COUNTY
THE HONORABLE CURTIS L. DELAPP, DISTRICT JUDGE

APPEARANCES AT TRIAL
GERALD J. LOVOI
616 S. BOSTON, STE. 403
TULSA, OK 74119
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
KATRINA CONRAD-LEGLER
P. O. BOX 926
NORMAN, OK 73080
ATTORNEY FOR APPELLANT

VIRGIL L. SMITH
E. SCOTT PRUITT
JEROD P. SIGLER
OKLAHOMA ATTORNEY GENERAL
ASSISTANT DISTRICT ATTORNEYS

LORI S. CARTER
NOWATA COUNTY COURTHOUSE
229 N. MAPLE STREET
NOWATA, OK 74048
ATTORNEYS FOR STATE

OPINION BY: A. JOHNSON, J.
LEWIS, P.J.: Concur
SMITH, V.P.J.: Concur
LUMPKIN, J.: Concur in Results
C. JOHNSON, J.: Concur

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Footnotes:

1. 21 O.S.Supp.2009, § 1123
2. 21 O.S.Supp.2009, § 888
3. 21 O.S.Supp.2011, § 13.1
4. 21 O.S.2001, § 11(A)
5. 12 O.S. § 2404 (B)
6. 21 O.S.Supp.2010, § 64
7. Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146
8. Rea v. State, 2001 OK CR 28, I 5 n.3, 34 P.3d 148, 149 n.3
9. Jones v. State, 2009 OK CR 1, I 104, 201 P.3d 869, 894
10. DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157
11. Postelle v. State, 2011 OK CR 30, "I 30, 267 P.3d 114, 131
12. McElmurry v. State, 2002 OK CR 40, 151, 60 P.3d 4, 34
13. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
14. Head v. State, 2006 OK CR 44, I 11, 146 P.3d 1141, 1144
15. Davis v. State, 1999 OK CR 48, 13, 993 P.2d 124, 126
16. Davis, 1999 OK CR 48, I 13, 993 P.2d at 127

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2009) - Lewd Molestation
• Okla. Stat. tit. 21 § 888 (2009) - Forcible Sodomy
• Okla. Stat. tit. 21 § 13.1 (2011) - Sentence Eligibility for Parole
• Okla. Stat. tit. 21 § 11 (2001) - Multiple Punishments
• Okla. Stat. tit. 21 § 64 (2010) - Optional Fines
• Okla. Stat. tit. 12 § 2404 (B) - Admissibility of Other Crimes Evidence

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:

• Barnard v. State, 2012 OK CR 15, I 25, 290 P.3d 759, 767
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Head v. State, 2006 OK CR 44, I 11, 146 P.3d 1141, 1144
• Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126
• Jones v. State, 2006 OK CR 5, I 63, 128 P.3d 521, 543
• Postelle v. State, 2011 OK CR 30, "I 30, 267 P.3d 114, 131
• Hiler v. State, 1990 OK CR 54, I 6, 796 P.2d 346, 348-49
• Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146
• Rea v. State, 2001 OK CR 28, I 5 n.3, 34 P.3d 148, 149 n.3
• Jones v. State, 2009 OK CR 1, I 104, 201 P.3d 869, 894
• DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157
• McElmurry v. State, 2002 OK CR 40, 151, 60 P.3d 4, 34