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F-2014-478

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David Glen Heard v State Of Oklahoma

F-2014-478

Filed: Jun. 15, 2006

Not for publication

Prevailing Party: State Of Oklahoma

Summary

David Glen Heard appealed his conviction for two counts of Lewd Molestation. The conviction and sentence were for twenty years of imprisonment on each count, to be served one after the other (consecutively). Judge Musseman presided over the case. However, there was a dissent by a member of the court regarding the post-imprisonment supervision aspect of Heard's sentence. The case involves an incident at a Walmart where Heard, a 53-year-old man, was reported to have looked under the dresses of two young girls, T.D. and C.R. After a trial, the jury found him guilty of the charges. Although he argued that the law was vague and that some of the evidence used against him was unfairly included, the court ultimately affirmed his conviction but decided to remove the three-year post-imprisonment supervision condition. Most judges agreed with the ruling, noting that Heard's actions were clearly inappropriate and that he had a history of similar offenses. The judges found that the original sentences were justified based on the seriousness of Heard’s actions, his criminal record, and the need to protect children.

Decision

The Judgments and Sentences of the district court are 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 Judgments and Sentences consistent with this opinion.

Issues

  • Was 21 O.S.Supp.2006, § 1123(A)(2) unconstitutionally vague, in violation of the Fourteenth Amendment’s Due Process Clause?
  • Did the trial court abuse its discretion in admitting propensity evidence from T.H. regarding a prior molestation?
  • Was the jury instruction regarding post-imprisonment supervision erroneous given that it was not authorized under law when the offenses were committed?
  • Was the admission of certain redacted statements from the videotaped interview of Appellant prejudicial or inadmissible?
  • Did the prosecutor engage in misconduct during closing argument regarding Appellant's actions and subsequent thoughts?
  • Was trial counsel ineffective for failing to object to the admission of evidence regarding Appellant's admission of masturbating?
  • Did the cumulative error from all raised propositions justify relief on appeal?
  • Was Appellant's sentence excessive or did the trial court abuse its discretion in imposing consecutive sentences?

Findings

  • the court did not err in rejecting the vagueness challenge to 21 O.S.Supp.2006, § 1123(A)(2)
  • the trial court did not abuse its discretion in admitting T.H.'s testimony
  • the trial court erred by advising the jury of post-imprisonment supervision, but the error was harmless
  • the trial court did not err in admitting the portion of the interview with Appellant related to masturbation
  • the prosecutorial statements during closing argument did not amount to plain error
  • Appellant's claim of ineffective assistance of counsel lacked merit
  • the cumulative error argument lacks merit as no individual errors were sustained
  • Appellant's sentence was not excessive and the trial court did not abuse its discretion in running sentences consecutively

F-2014-478

Jun. 15, 2006

David Glen Heard

Appellant

v

State Of Oklahoma

Appellee

OPINION

HUDSON, JUDGE:

Appellant David Glen Heard was tried and convicted by a jury in Tulsa County District Court, Case No. CF-2006-2945, for two counts of Lewd Molestation, in violation of 21 O.S.Supp.2006, § 1123(A). The State sought enhancement, alleging Appellant’s convictions were after two or more prior felony convictions. However, the jury found the existence of only one prior felony conviction and sentenced Heard to twenty (20) years imprisonment on each count. The Honorable William J. Musseman, Jr., District Judge, sentenced Heard in accordance with the jury’s verdicts and ordered the sentences on both counts to run consecutive each with the other. The trial court also ordered Heard to serve a three (3) year term of post-imprisonment supervision, under conditions prescribed by the Department of Corrections. Heard now appeals.

On June 15, 2006, sometime after 11:30 p.m., Nettie Dunevant, her daughter Tabanna, and Tabanna’s two daughters, B.D. and T.D., went to the Wal Mart at 81st and Lewis in Tulsa in search of greeting cards and swimwear for the children. B.D. was two years old at the time; T.D. was seven. That night, the girls wore matching dresses sent to them by an aunt. Once inside the store, they went to the greeting card aisle. Nettie and Tabanna took turns pushing the shopping cart in which B.D. was riding. T.D. chose to walk. After Nettie, Tabanna and the children began looking at greeting cards, Appellant, a 53 year old man, got down on the floor and looked up the opening of T.D.’s dress. Nettie described Appellant as leering under T.D.’s dress. At some point, Appellant stood up. His hair—like his overall appearance—was disheveled. Appellant made the statement nice cards, an apparent reference to the Snoopy greeting cards the girls were perusing while Appellant looked up T.D.’s dress. Startled by Appellant’s actions, Tabanna and Nettie picked T.D. up and put her in the shopping cart with her sister. Nettie told her daughter that Appellant was a P, meaning pedophile. Nettie confronted Appellant, asking him [w]hy? What are you doing? Appellant flinched, chuckled and moved his shoulders trying to decide. Nettie and Tabanna tried to move away from Appellant but he followed them as they pushed the shopping cart with B.D. and T.D. toward the little girls’ swimwear.

Appellant wandered through the little girls’ clothing section where Glenda Ridenour and her nine-year old daughter, C.R., were browsing. Glenda and C.R. were in town for a scholarship pageant and went to Wal Mart because they forgot C.R.’s shoes and needed to buy a new pair. As Glenda and C.R. browsed the clothing, Appellant was squatted down in the aisle, fumbling with socks on a store display. He was blocking Glenda and C.R.’s path. When Glenda attempted to pass through the narrow aisle with her shopping cart, she told Appellant excuse me, but he ignored her. Glenda repeated this three times before Appellant moved. Glenda and C.R. moved on to the shoe department at the back of the store where they browsed the footwear. Eventually, C.R. sat down on the floor and tried on a pair of tennis shoes. About this time, Glenda noticed Appellant at the end of the shoe aisle kind of fumbling around again, mumbling words. Appellant was wearing a large ACE bandage on his left knee and his right arm. Glenda became alarmed because she believed Appellant was following her. At some point, Appellant told Glenda that he was looking for shoes for his daughter but it was hard to determine what she likes. C.R. couldn’t help but notice that Appellant did not have a little girl with him that night. Glenda simply shrugged her shoulders and ignored him. Glenda noticed Appellant had Polly Pocket dolls and other little girl toys in his shopping cart. Glenda kept an eye on Appellant while C.R., who was wearing a skirt and t-shirt, was sitting on the ground with her knees pulled up and her legs apart, trying on shoes. Glenda eventually noticed Appellant on the ground, leaned over with his face touching the floor while looking up C.R.’s skirt. Appellant’s arms were on the ground and he slid on the floor using his ACE bandages. Glenda felt very violated by what she saw and spoke with store employees, some of whom also noticed Appellant’s unusual behavior.

Shortly thereafter, Appellant was intercepted in the store parking lot by an off-duty police officer who was working store security. The officer observed a pornographic magazine depicting sexually explicit material in a bag Appellant retrieved from his car. A records check showed Appellant was a registered sex offender. Appellant was on supervised probation at the time for felony convictions from Creek County for Performing Sexual Acts in the Presence of a Child Under Sixteen and Taking a Child to a Secluded Place for Immoral Purposes. Appellant was later arrested and interviewed by Detective Scott Murphy. Appellant acknowledged during that interview, which was videotaped, to being on supervised probation for child sex crimes and to seeing T.D. and C.R. in different parts of Wal Mart that night. He admitted seeing the little girls’ panties and vaginal area (their stuff) but portrayed the whole affair as mere casual glances that lasted only a few seconds. Appellant agreed with Detective Murphy’s statement that the pornographic magazine found in his car, and seeing the little girl in the shopping cart with her legs spread and panties exposed, got you going and took control of you. But Appellant denied following the children and their mothers around the store. Appellant said he left the store because he knew he was not supposed to be looking at a private spot, that the girls were not the appropriate age for him and that he would feel violated if someone were looking at him that way. Appellant discussed throughout the interview the difficulty he had using the interventions he learned during counseling to stop looking at the little girls in the store. Appellant said too that he did not know what could happen if he stayed in the store, that it was possible he could return to his pattern and start having sexual thoughts. That would put Appellant in a cycle allowing him to go where kids hang out which, he admits, is not right, and who knows where it could go from there. I mean, it could escalate. Anywhere.

Appellant raises eight propositions of error on appeal. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that under the law and evidence Appellant’s judgments and sentences should be AFFIRMED except for the imposition of post-imprisonment supervision which should be VACATED and the matter REMANDED to the trial court with instructions to MODIFY the judgments and sentences consistent with the analysis in this opinion.

In Proposition I, Appellant complains that 21 O.S.Supp.2006, § 1123(A)(2) is unconstitutionally vague, in violation of the Fourteenth Amendment’s Due Process Clause. Appellant targets use of the words [l]ook upon in § 1123(A)(2) as being void for vagueness. Appellant argues this language allows arbitrary and discriminatory enforcement of the statute if a police officer perceives more than a casual glance at a child. Aplt. Br. at 9. Appellant tells us this is true despite this Court’s interpretation of § 1123(A)(2) in resolving his previous state post-conviction proceedings. Appellant raised this claim below and the district court rejected it. This claim is therefore preserved for appellate review. We review a claim concerning the constitutionality of a statute de novo. Leftwich v. State, 2015 OK CR 5, II 37, 350 P.3d. 149.

[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). This Court previously held that [u]nder the plain wording of the statute, Heard committed the felony when he followed two underage girls into a store and positioned himself to see under their dresses and see their panties, his admitted intent. The evidence presented at Appellant’s jury trial showed the same. Basically, Appellant followed two underage girls around Wal Mart and positioned himself so he could look under their dresses and see their vaginal area. Appellant admitted during his videotaped interview to looking at each victim’s private spot and realizing that it was wrong. Appellant’s conduct in this case is prohibited by the plain language of § 1123(A)(2).

Appellant argues that the vagueness claim is not applicable because he believes he should not have been convicted since his victims were wearing panties. This Court, however, rejected this interpretation based on the plain language of the statute, particularly § 1123(A)(2)’s requirement that the looking upon be done in a lewd and lascivious manner. This phrase provides further definition of the conduct prohibited by § 1123(A)(2). Notably, Appellant argued during pre-trial proceedings before the trial court that he was not challenging the phrase lewd or lascivious as being unconstitutionally vague.

The record evidence in this case does not support this approach. Appellant’s assertion that § 1123(A)(2) authorizes or encourages arbitrary or discriminatory enforcement lacks merit. The plain language of § 1123(A)(2), along with our holding in Heard, eliminates the possibility of the indiscriminate investigative detentions imagined by Appellant on appeal. Moreover, speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications.

All things considered, relief for Proposition I is denied.

In Proposition II, Appellant challenges the admission of trial testimony by T.H. that Appellant molested her in 1998. Appellant argues that this propensity evidence was inadmissible under 12 O.S.2011, § 2414. We hold that the trial court did not abuse its discretion in admitting T.H.’s testimony. This evidence was relevant to show motive, intent and absence of mistake or accident and met all of the factors required for admissibility under § 2414. The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of issues or its tendency to mislead the jury.

Relief for Proposition II is therefore denied.

In Proposition III, Appellant challenges Instruction No. 33 which told the jury: You are advised that if you recommend a sentence of imprisonment for two years or more, David Glen Heard shall be required to serve a term of post-imprisonment community supervision under conditions determined by the Department of Corrections, in addition to the actual imprisonment. Appellant’s argument on appeal is simply that post-imprisonment supervision was not authorized under Oklahoma law when he committed the two counts of lewd molestation charged in this case. The State acknowledges that Appellant’s crimes occurred on June 15, 2006, before the post-imprisonment supervision law went into effect on November 1, 2007, and that Instruction No. 33 was erroneously given.

However, the trial court’s erroneous instruction was harmless. The jury did not impose post-imprisonment supervision and Appellant does not claim that Instruction No. 33 in any way influenced the jury’s verdict to his detriment. Absent a showing of prejudice resulting from the trial court’s use of Instruction No. 33, the instructional error here was harmless.

However, Appellant’s claimed error based on the trial court’s imposition of a three year period of post-imprisonment supervision does require relief. The trial court erred in imposing post-imprisonment supervision in this case and relief is warranted on Proposition III.

In Proposition IV, Appellant alleges reversible error based on the admission at trial of a portion of State’s Exhibit 4, the DVD depicting Detective Murphy’s interview of Appellant. The challenged evidence here was admissible as res gestae evidence. Appellant’s statement that he went home and masturbated to mental images and thoughts he had of the children he encountered at Wal Mart was relevant to show Appellant’s motive, intent and absence of mistake or accident.

Relief for Proposition IV is denied.

In Proposition V, Appellant claims prosecutorial misconduct based on the prosecutor’s statement during closing argument that Appellant should be held accountable because he looked at the children and then went home and masturbated to the thought of them. Appellant says this argument was grossly unwarranted and affected [his] rights to a fair trial. The challenged comments do not amount to error, let alone plain error. Here, the State could reasonably argue that Appellant’s actions at Wal Mart were part of a plan to satisfy his sexual urges and compulsion for young girls.

Relief is therefore unwarranted for Proposition V.

In Proposition VI, Appellant argues that his trial counsel was ineffective for failing to object to the portion of his videotaped interview in which he admitted masturbating. As discussed in Proposition IV, the evidence Appellant says trial counsel should have challenged was admissible. Thus, trial counsel was not ineffective for failing to make meritless objections.

Relief is unwarranted for Proposition VI.

Petitioner’s cumulative error argument in Proposition VII likewise does not warrant relief. A cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant.

Finally, we deny relief for Appellant’s excessive sentence claim in Proposition VIII. Appellant was convicted of two counts of Lewd Molestation After One Prior Felony Conviction. The twenty year sentences imposed by the jury for each count balances the fact that Appellant did not actually touch the victims with his outrageous behavior.

The trial court’s sentencing decision is affirmed. Relief for Proposition VIII is denied.

DECISION

The Judgments and Sentences of the district court are 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 Judgments and Sentences consistent with this opinion.

Footnotes:

  1. Heard is required to serve not less than eighty-five percent (85%) of his sentence of imprisonment before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1 (18).
  2. Heard v. State, 2009 OK CR 2, 201 P.3d 182 (order denying post-conviction relief), but reversed by the Tenth Circuit based on its finding that plea counsel was ineffective in advising Heard to plead guilty. See Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013).
  3. Title 21, O.S.Supp.2006, § 1123(A)(2) provides: "[i]t is a felony for any person to knowingly and intentionally [l]ook upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any lewd or lascivious manner by any acts against public decency and morality, as defined by law" where "the accused is at least three (3) years older than the victim."
  4. See Johnson v. State, 2010 OK CR 28, 250 P.3d 901, 903-04; Horn v. State, 2009 OK CR 7, 204 P.3d at 786-87.
  5. Barnard v. State, 2012 OK CR 15, 290 P.3d 759, 769-70.
  6. 12 O.S.2011, § 2414.
  7. 12 O.S.2011, § 2404(B).
  8. Harrall v. State, 1984 OK CR 20, 674 P.2d 581, 583.
  9. 20 O.S.2011, § 3001.1.
  10. Neloms v. State, 2012 OK CR 7, 274 P.3d 161, 167.
  11. Grissom v. State, 2011 OK CR 3, 253 P.3d 969, 980.
  12. Powell v. State, 423 U.S. 87, 92, 96 S. Ct. 316, 46 L. Ed. 2d 228 (1975).
  13. Logan v. State, 2013 OK CR 2, 293 P.3d 969, 975.
  14. Pavatt v. State, 2007 OK CR 19, 159 P.3d 272, 292.
  15. Andrew v. State, 2007 OK CR 23, 164 P.3d 176, 202.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1123(A) (Supp. 2006) - Lewd Molestation
  • Okla. Stat. tit. 21 § 13.1 (2011) - Post-imprisonment supervision
  • Okla. Stat. tit. 12 § 2414 (2011) - Admissibility of character evidence
  • Okla. Stat. tit. 12 § 2404(B) (2011) - Other crimes, wrongs, or acts
  • Okla. Stat. tit. 20 § 3001.1 (2011) - Harmless error
  • Okla. Stat. tit. 21 § 51.1(A)(1) (Supp. 2002) - Habitual criminal sentence
  • Okla. Stat. tit. 21 § 1123(F) (Supp. 2007) - Post-imprisonment supervision for lewd molestation

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:

  • Heard v. State, 2009 OK CR 2, 201 P.3d 182
  • Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013)
  • Leftwich v. State, 2015 OK CR 5, 350 P.3d 149
  • Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855
  • Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480
  • Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853
  • State v. Johnson, 1992 OK CR 72, 877 P.2d 1136
  • United States v. Cardenas-Alatorre, 485 F.3d 1111
  • Chapman v. United States, 500 U.S. 453, 111 S. Ct. 1919
  • Barnard v. State, 2012 OK CR 15, 290 P.3d 759
  • Neloms v. State, 2012 OK CR 7, 274 P.3d 161
  • Hooley v. State, 2012 OK CR 3, 269 P.3d 949
  • Head v. State, 2006 OK CR 44, 146 P.3d 1141
  • Robinson v. State, 1986 OK CR 86, 721 P.2d 419
  • McElmurry v. State, 2002 OK CR 40, 60 P.3d 4
  • Jackson v. State, 2007 OK CR 24, 163 P.3d 596
  • Spradling v. State, 1951 OK CR 31, 229 P.2d 212
  • Warner v. State, 2006 OK CR 40, 144 P.3d 838
  • Pavatt v. State, 2007 OK CR 19, 159 P.3d 272
  • Andrew v. State, 2007 OK CR 23, 164 P.3d 176
  • Logan v. State, 2013 OK CR 2, 293 P.3d 969
  • Grissom v. State, 2011 OK CR 3, 253 P.3d 969
  • Harrall v. State, 1984 OK CR 20, 674 P.2d 581
  • Rea v. State, 2001 OK CR 28, 34 P.3d 148

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