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F-2014-1078

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Robert Bradley Champlain v State Of Oklahoma

F-2014-1078

Filed: Aug. 11, 2016

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Robert Bradley Champlain appealed his conviction for three counts of Lewd Molestation. Conviction and sentence: life imprisonment on each count, with all sentences running one after the other. Judge Terry H. McBride was involved in the case. In the appeal, Champlain argued that: 1. The trial court violated his rights by having a policy of running sentences consecutively. 2. His prior felony convictions were incorrectly proven. 3. The evidence about his past convictions was insufficient. 4. There were issues with the evidence for one of the lewd molestation charges. 5. The prosecutor acted unfairly during the trial. 6. The jury instructions were incorrect. 7. He did not receive effective help from his lawyer. 8. His sentence was too harsh. 9. The combination of these mistakes made the trial unfair. The Oklahoma Court of Criminal Appeals looked at all the facts and decided that Champlain did not deserve a new trial. They affirmed his conviction and sentence but cancelled the part about post-imprisonment supervision. In a separate opinion, one judge noted that the prosecution should give better notice when bringing multiple charges.

Decision

The Judgment and Sentence of the district court is AFFIRMED except for the imposition of post-imprisonment supervision which is VACATED and the matter is REMANDED to the district court with instructions to MODIFY the Judgment and Sentence consistent with this opinion. The trial court is FURTHER ORDERED to correct the Judgment and Sentence nunc pro tunc to reflect that all three of Appellant's crimes were committed on or between December 24, 2012 and November 19, 2013. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was the trial court's policy of running sentences consecutively for defendants opting for a jury trial a violation of constitutional rights?
  • Were Appellant's prior felony convictions improperly proven, resulting in prejudice?
  • Did the State present insufficient evidence to prove Appellant's prior convictions were final for enhancing punishment?
  • Was there insufficient evidence to support Count 3 of lewd molestation due to a variance in the allegation and evidence?
  • Did prosecutorial misconduct deprive Appellant of a fair trial and violate his constitutional rights?
  • Did the trial court commit plain error by giving an improper general closing charge and failing to instruct on sex offender registration?
  • Was Appellant prejudiced by ineffective assistance of counsel?
  • Was the sentence imposed on Appellant excessive?
  • Did the cumulative effect of the errors deprive Appellant of a fair trial and warrant relief?

Findings

  • the trial court did not err in running sentences consecutively
  • the admission of prior felony convictions was not improperly proven
  • the evidence was sufficient to prove Appellant's prior convictions were final
  • the evidence was sufficient regarding Count 3 despite variance in the allegations
  • no prosecutorial misconduct deprived Appellant of a fair trial
  • the trial court did not commit plain error in jury instructions
  • Appellant was not prejudiced by ineffective assistance of counsel
  • the sentences were not excessive except for imposition of post-imprisonment supervision, which was vacated
  • no cumulative error warranted relief

F-2014-1078

Aug. 11, 2016

Robert Bradley Champlain

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant Robert Bradley Champlain was tried by a jury in Mayes County District Court, Case No. CF-2013-471, for three counts of Lewd Molestation, After Former Conviction of Two or More Felonies, in violation of 21 O.S.201-1, § 1123. The jury found Appellant guilty as charged and recommended a sentence of life imprisonment on each count. The Honorable Terry H. McBride, District Judge, sentenced Champlain in accordance with the jury’s verdicts and ordered the sentences for all three counts to run consecutively. Champlain now appeals and raises the following propositions of error:

I. THE TRIAL COURT’S EXPRESSED POLICY OF RUNNING SENTENCES CONSECUTIVELY IF APPELLANT ELECTED TO GO TO JURY TRIAL VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE TWO, SECTION TWENTY OF THE OKLAHOMA CONSTITUTION, AND 22 O.S.2011, § 976; Champlain is required to serve not less than eighty-five percent (85%) of his sentence of imprisonment on each count before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1(18).

II. APPELLANT’S PRIOR FELONY CONVICTIONS WERE IMPROPERLY PROVEN, RESULTING IN PREJUDICE TO APPELLANT;

III. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO PROVE APPELLANT’S PRIOR CONVICTIONS WERE FINAL FOR PURPOSES OF ENHANCING PUNISHMENT IN THE SECOND STAGE OF TRIAL;

IV. THE STATE PRESENTED INSUFFICIENT EVIDENCE AS TO COUNT 3, LEWD MOLESTATION, OCCURRING ON OR ABOUT THE 24TH DAY OF DECEMBER, 2012, BASED ON A VARIANCE IN THE ALLEGATION AND THE EVIDENCE;

V. PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL, VIOLATED HIS CONSTITUTIONAL RIGHTS, AND CREATED FUNDAMENTAL ERROR IN THIS CASE;

VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPROPERLY GIVING OUJI-CR 10-3, THE GENERAL CLOSING CHARGE, AND BY FAILING TO INSTRUCT THE JURY REGARDING SEX OFFENDER REGISTRATION;

VII. APPELLANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL;

VIII. APPELLANT RECEIVED AN EXCESSIVE SENTENCE IN THIS CASE; and

IX. THE CUMULATIVE EFFECT OF ALL THESE ERRORS DEPRIVED APPELLANT OF A FAIR TRIAL AND WARRANT RELIEF FOR APPELLANT.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence and Appellant’s judgment and sentence should be AFFIRMED except for the imposition of post-imprisonment supervision which is VACATED. The trial court is also ORDERED to correct the Judgment and Sentence nunc pro tunc to reflect that all three of Appellant’s crimes were committed on or between December 24, 2012, and November 19, 2013.

1. The determination of consecutive and concurrent sentences is left to the sound discretion of the trial court. 22 O.S.2011, § 976; Riley v. State, 1997 OK CR 51, ¶ 20, 947 P.2d 530, 534. Before we can modify a sentence imposed by the trial court, it must be shown that the trial court abused its discretion in assessing punishment. Id. We have defined an abuse of discretion by the trial court as any unreasonable, unconscionable and arbitrary action taken without proper consideration of the facts and law pertaining to the matter submitted. Id., 1997 OK CR 51, ¶ 20, 947 P.2d at 534-35. It is Appellant’s burden to show that the trial court abused its discretion. See, e.g., Knighton v. State, 1996 OK CR 2, ¶ 42, 912 P.2d 878, 890; Akins v. State, 1950 OK CR 28, 91 Okl.Cr. 47, 58, 215 P.2d 569, 575. The record does not show that the trial court had a policy of running sentences consecutively solely because a defendant requests a jury trial, let alone that the trial court ran Appellant’s sentences consecutively because of such a policy. At the pre-trial hearing, the trial court correctly advised Appellant of the governing Oklahoma law which dictates that sentences are to be served consecutively unless otherwise ordered by the Court. 21 O.S.2011, § 61.1; 22 O.S.2011, § 976; Warnick v. Booher, 2006 OK CR 41, ¶ 11, 144 P.3d 897, 900. This was part of the trial court’s overall attempt to advise Appellant of the potential consequences of rejecting the State’s plea offer and going to trial. The record of formal sentencing is consistent with the trial court exercising its discretion in choosing to run Appellant’s sentences consecutively. Riley, 1997 OK CR 51, ¶ 21, 947 P.2d at 535. Relief is denied for Proposition I.

2. Appellant objected at trial to the admission during sentencing of State’s Exhibits 4 and 5, the judgment and sentence documents showing his prior felony convictions, solely on grounds that they were not properly authenticated because the court clerk was not present to sponsor either exhibit. Appellant has therefore waived all but plain error review of this claim. Stewart v. State, 2016 OK CR 9, ¶ 12, __ P.3d __. Under the plain error test, Appellant must show an actual error, which is plain or obvious, and which affects his substantial rights, meaning the error affected the outcome of the proceeding. Id. We will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. The longstanding rule is that parties are not to encourage jurors to speculate about probation, pardon or parole policies. Id., 2016 OK CR 9, ¶ 14, __ P.3d __. To show error, Appellant must show in light of the totality of the circumstances, the prosecution made such an unmistakable reference to the pardon and parole system of Oklahoma to result in prejudice to the defendant. Id. The prosecutor did not expressly refer to the rules and conditions of probation made part of State’s Exhibit 4 or otherwise claim that Appellant had received a suspended sentence. Because there is no error associated with the admission of State’s Exhibit 4, there is no plain error. Id., 2016 OK CR 9, ¶ 18, __ P.3d __. The prosecutor erred by reading that portion of the Page Two allegation relating to Appellant’s stipulation to the motion to revoke suspended sentence as reflected in State’s Exhibit 5. Hunter v. State, 2009 OK CR 17, ¶ 9, 208 P.3d 931, 933. However, the prosecutor did not argue that Appellant deserved a longer sentence because of the suspended sentence or its subsequent revocation. Thus, while the prosecutor’s error was plain or obvious, the error was harmless and did not affect Appellant’s substantial rights. Barnard v. State, 2012 OK CR 15, ¶ 13, 290 P.3d 759, 764; Simpson v. State, 1994 OK CR 40, ¶ 36, 876 P.2d 690, 702. Relief is denied for Proposition II.

3. Appellant’s prior felony convictions arose from guilty pleas and were 11 and 14 years old at the time of his trial in the present case. Additionally, the defense presented no rebutting evidence showing Appellant’s convictions were not final. This represented sufficient circumstantial evidence to submit the question of Appellant’s prior felony convictions to the jury. Hendricks v. State, 1985 OK CR 39, ¶ 17, 698 P.2d 477, 481 (overruled on other grounds by Cleary v. State, 1997 OK CR 35, ¶ 9, 942 P.2d 736, 745 and Parker v. State, 1996 OK CR 19, ¶ 23 n.4, 917 P.2d 980, 986 n.4 (internal citations omitted)); Cervantes v. State, 1976 OK CR 278, ¶ 19, 556 P.2d 622, 627. Because there is no error, there is no plain error. See Bosse v. State, 2015 OK CR 14, ¶ 43, 360 P.3d 1203, 1223; Kirkendall v. State, 1986 OK CR 143, ¶ 7, 725 P.2d 882, 884.

4. Appellant’s challenge to the sufficiency of the evidence supporting Count 3 is actually a challenge to the sufficiency of the Information. Appellant did not object below to the sufficiency of the Information thus waiving review on appeal of all but plain error. Jackson v. State, 2016 OK CR 5, ¶ 4, __ P.3d __; Conover v. State, 1997 OK CR 6, ¶ 10, 933 P.2d 904, 909. There is no plain error. The State is not required to plead a specific date in the information for the charged offenses unless time is a material element of the offense. 22 O.S.2011, § 405; Lemmon v. State, 1975 OK CR 147, ¶ 22, 538 P.2d 596, 601. Moreover, the State is not required to prove an offense took place on the exact date charged. Robedeaux v. State, 1995 OK CR 73, ¶ 8, 908 P.2d 804, 806. The defendant may be convicted upon proof of the commission of the offense at any time within the Statute of Limitations and prior to the date of the filing of said Information. State v. Holloway, 1973 OK CR 440, ¶ 4, 516 P.2d 1346, 1347. The question whether there is a material variance between the allegations charging Appellant with lewd molestation in Count 3 and the proof submitted to the court which bars a conviction depend[s] greatly on whether it may later expose the defendant to being placed in jeopardy for the same offense or tend to mislead him in answering the charges against him. McCoy v. State, 1975 OK CR 117, ¶ 9, 536 P.2d 1309, 1312. The test for the sufficiency of an information must be determined on the basis of practical rather than technical considerations; hairsplitting is to be avoided. Nealy v. State, 1981 OK CR 142, ¶ 5, 636 P.2d 378, 380. Time was not a material element of the charged offenses in this case. B.B. was 13 years old at the time of trial so everything she testified about occurred when she was under 16 years of age as required by 21 O.S.2011, § 1123(A)(2). Appellant does not show unfair surprise which prejudiced his defense based on the date listed in the Count 3 charge and the proof submitted at trial. Indeed, Appellant was advised orally by the magistrate of the additional Count 3 charge which was added at preliminary hearing and its corresponding date range. Also, the State proved at trial the commission of the Count 3 charge well within the statute of limitations governing this offense, see 22 O.S.2011, § 152(C)(1), and prior to the date of the filing of the Information in this case. Appellant is also not in danger of being placed in jeopardy for the same offense. The trial court’s instructions had the effect of conforming the Count 3 allegations—and the jury’s consideration of same—to the proof at trial. See Blueford v. Arkansas, U.S., 132 S. Ct. 2044, 2051, 182 L. Ed. 2d 937 (2012) (jurors are presumed to follow their instructions). By telling the jury in Instruction No. 3 that the date range for the allegations in all three counts was on or between December 24, 2012 and November 19, 2013, the written charge had the same effect as if the trial court granted an oral motion by the prosecutor to amend the information during the trial so the date listed conformed to the proof.²

²The Judgment and Sentence erroneously states that all three counts in this case were committed on or about the 24th day of December, 2012. The trial court is ORDERED to correct the Judgment and Sentence nunc pro tunc to reflect that all three of Appellant’s crimes were committed on or between December 24, 2012 and November 19, 2013.

Appellant fails to show a plain or obvious error which affects his substantial rights. 22 O.S.2011, § 410; Kimbro v. State, 1990 OK CR 4, ¶ 8, 857 P.2d 798, 800; Jones v. State, 1969 OK CR 151, ¶ 9-12, 453 P.2d 393, 396-97; Sweden v. State, 1946 OK CR 81, 83 Okl.Cr. 1, 5-6, 172 P.2d 432, 434-35. Relief is denied for Proposition IV.

5. Both parties have wide latitude in closing argument to argue the evidence and reasonable inferences from it. We will not grant relief for improper argument unless, viewed in the context of the whole trial, the statements rendered the trial fundamentally unfair, so that the jury’s verdicts are unreliable. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Bosse, 2015 OK CR 14, ¶ 75, 360 P.3d at 1232. Appellant made timely objections in some instances, thus preserving his prosecutorial misconduct claims for appellate review. Some of the alleged instances of prosecutorial misconduct, however, drew no objection from Appellant thus waiving on appeal all but plain error. Barnett v. State, 2011 OK CR 28, ¶ 8, 263 P.3d 959, 962. Regardless, Appellant has not shown based on the challenged comments that the prosecutor’s tactics or argument were fundamentally unfair. Appellant also challenges the admission of B.B.’s testimony that Appellant attempted to look at her naked while she was in the shower. By combining multiple issues in a single proposition, however, this claim is waived from review. See Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015); Collins v. State, 2009 OK CR 32, ¶ 32, 223 P.3d 1014, 1023. Relief is denied for Proposition V.

6. Appellant has waived on appeal all but plain error review of his instructional challenges. Jackson, 2016 OK CR 5, ¶ 4. There is no abuse of discretion from a trial court’s failure to instruct on registration pursuant to the Sex Offenders Registration Act. Reed v. State, 2016 OK CR 10, ¶¶ 14-19, __ P.3d __. The trial court’s failure to include in the general closing charge language that Appellant had entered a plea of not guilty to the charged offenses was plain or obvious error. 12 O.S.2011, § 577.2; OUJI-CR 10-3. However, the jury was repeatedly informed that Appellant had entered a plea of not guilty to the charges against him, including during the trial court’s opening instructions. Appellant’s substantial rights were thus not affected by this instructional error as it did not affect the outcome of the proceedings. Levering, 2013 OK CR 19, ¶ 6, 315 P.3d at 395 (discussing three-part plain error test). Appellant’s challenge to the date range listed in Instruction No. 3 for the Count 3 charge also does not reveal plain error. Appellant never alleged unfair surprise from the State’s charges and he provides no coherent theory on appeal showing prejudice to his defense. Moreover, the trial court did not abuse its discretion because the date listed in the general closing charge for Count 3 was consistent with the evidence presented at trial and Appellant never objected to the instructions. Relief is denied for Proposition VI.

7. To prevail on an ineffective assistance of counsel claim, the defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Appellant does not show deficient performance and prejudice with any of his ineffective assistance of counsel claims. Proposition VII is denied.

8. This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Neloms v. State, 2012 OK CR 7, ¶ 39, 274 P.3d 161, 171 (quoting Rea v. State, 2001 OK CR 28, ¶ 5 n.3, 34 P.3d 148, 149 n.3). Appellant’s sentences are within the statutory sentencing range. His sentences are also factually substantiated and supported by the record evidence and are not excessive. Relief for this part of Proposition VIII is denied. However, Appellant’s challenge to the imposition of post-imprisonment supervision at formal sentencing warrants relief. Title 21 O.S.2011, § 1123(F) provides that post-imprisonment supervision does not apply to defendants sentenced to life or life without parole. The trial court therefore erred in imposing post-imprisonment supervision for Appellant.³

³We decline the State’s invitation to take judicial notice of a certified copy of the amended judgment and sentence attached to its response brief. This document is not part of the record on appeal before the Court in this case.

9. Appellant is not entitled to relief for alleged cumulative error. Postelle v. State, 2011 OK CR 30, ¶ 94, 267 P.3d 114, 146; Pavatt v. State, 2007 OK CR 19, ¶ 85, 159 P.3d 272, 296. Relief for Proposition IX is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED except for the imposition of post-imprisonment supervision which is VACATED and the matter is REMANDED to the district court with instructions to MODIFY the Judgment and Sentence consistent with this opinion. The trial court is FURTHER ORDERED to correct the Judgment and Sentence nunc pro tunc to reflect that all three of Appellant’s crimes were committed on or between December 24, 2012, and November 19, 2013. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 22 § 976
  2. Okla. Stat. tit. 21 § 13.1(18)
  3. Okla. Stat. tit. 21 § 61.1
  4. Okla. Stat. tit. 22 § 976
  5. Okla. Stat. tit. 21 § 1123(A)(2)
  6. Okla. Stat. tit. 22 § 152(C)(1)
  7. Okla. Stat. tit. 22 § 410
  8. Okla. Stat. tit. 12 § 577.2
  9. Okla. Stat. tit. 21 § 1123(F)
  10. Okla. Stat. tit. 21 § 11
  11. Okla. Stat. tit. 22 § 405

Oklahoma Statutes citations:

  • Okla. Stat. tit. 22 § 976
  • Okla. Stat. tit. 21 § 13.1(18)
  • Okla. Stat. tit. 21 § 61.1
  • Okla. Stat. tit. 22 § 976
  • Okla. Stat. tit. 21 § 1123(A)(2)
  • Okla. Stat. tit. 22 § 152(C)(1)
  • Okla. Stat. tit. 22 § 410
  • Okla. Stat. tit. 12 § 577.2
  • Okla. Stat. tit. 21 § 1123(F)
  • Okla. Stat. tit. 21 § 11
  • Okla. Stat. tit. 22 § 405

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:

  • Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534
  • Knighton v. State, 1996 OK CR 2, I 42, 912 P.2d 878, 890
  • Akins v. State, 1950 OK CR 28, 91 Okl.Cr. 47, 58, 215 P.2d 569, 575
  • Warnick v. Booher, 2006 OK CR 41, II 11, 144 P.3d 897, 900
  • Stewart v. State, 2016 OK CR 9, IT 12
  • Hunter v. State, 2009 OK CR 17, I 9, 208 P.3d 931, 933
  • Barnard v. State, 2012 OK CR 15, IT 13, 290 P.3d 759, 764
  • Simpson v. State, 1994 OK CR 40, IT 36, 876 P.2d 690, 702
  • Hendricks v. State, 1985 OK CR 39, I 17, 698 P.2d 477, 481
  • Cleary v. State, 1997 OK CR 35, IT 942 P.2d 736, 745
  • Parker v. State, 1996 OK CR 19, I 23 n.4, 917 P.2d 980, 986 n.4
  • Cervantes v. State, 1976 OK CR 278, I 19, 556 P.2d 622, 627
  • Bosse v. State, 2015 OK CR 14, IT 43, 360 P.3d 1203, 1223
  • Kirkendall v. State, 1986 OK CR 143, IT 7, 725 P.2d 882, 884
  • Jackson v. State, 2016 OK CR 5, I 4
  • Conover v. State, 1997 OK CR 6, II 10, 933 P.2d 904, 909
  • Lemmon V. State, 1975 OK CR 147, I 22, 538 P.2d 596, 601
  • Robedeaux v. State, 1995 OK CR 73, I 8, 908 P.2d 804, 806
  • State v. Holloway, 1973 OK CR 440, I 4, 516 P.2d 1346, 1347
  • McCoy v. State, 1975 OK CR 117, IT 9, 536 P.2d 1309, 1312
  • Nealy v. State, 1981 OK CR 142, II 5, 636 P.2d 378, 380
  • Kimbro v. State, 1990 OK CR 4, II 5, 857 P.2d 798, 800
  • Neloms v. State, 2012 OK CR 7, I 39, 274 P.3d 161, 171
  • Rea v. State, 2001 OK CR 28, I 5 n.3, 34 P.3d 148, 149 n.3
  • Postelle v. State, 2011 OK CR 30, I 94, 267 P.3d 114, 146
  • Pavatt v. State, 2007 OK CR 19, I 85, 159 P.3d 272, 296
  • Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)
  • Levering, 2013 OK CR 19, I 6, 315 P.3d at 395
  • Childress v. State, 2000 OK CR 10, IT 18, 1 P.3d 1006, 1011
  • Sanders v. State, 2015 OK CR 11, II 6, 358 P.3d 280, 283
  • Franks v. State, 2006 OK CR 31, I 6, 140 P.3d 557, 558
  • Curtis v. State, 86 Okla. Crim. 332, 193 P.2d 309, 343 (1948)

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