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F-2017-1019

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Leslie Kevin Johnson v State Of Oklahoma

F-2017-1019

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Leslie Kevin Johnson appealed his conviction for Child Sexual Abuse. The conviction and sentence were for twenty-five years in prison and a $5,000 fine. Judge Marion Fry dissented.

Decision

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. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was there insufficient evidence to convict appellant of child sexual abuse?
  • Did the trial court err when it failed to instruct the jury regarding appellant's post-imprisonment supervision?
  • Was appellant prejudiced by ineffective assistance of counsel?
  • Did the trial court fail to properly instruct the jury that appellant would receive additional punishment of sex offender registration if found guilty?
  • Did the cumulative effect of all these errors deprive appellant of a fair and impartial proceeding?

Findings

  • the court found sufficient evidence to convict appellant of child sexual abuse
  • the trial court did not err in instructing the jury regarding post-imprisonment supervision
  • the court denied the ineffective assistance of counsel claim
  • the trial court did not err in failing to instruct the jury regarding sex offender registration
  • the cumulative error claim was denied as there were no substantive errors affecting trial rights

F-2017-1019

Sep. 19, 2019

Leslie Kevin Johnson

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN HUDSON, JUDGE:

Appellant, Leslie Kevin Johnson, was tried and convicted at a jury trial in LeFlore County District Court, Case No. CF-2016-312, of Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E). The jury recommended a sentence of twenty-five years imprisonment and a $5,000.00 fine. The Honorable Marion Fry, Associate District Judge, presided at trial and sentenced Johnson in accordance with the jury’s verdict. Judge Fry also imposed a three year term of post-imprisonment supervision. Judge Fry further imposed various costs and fees. Johnson now appeals.

Under 21 O.S.Supp.2015, § 13.1, Johnson must serve not less than eighty-five (85) percent of his sentence before becoming eligible for parole. Johnson alleges the following propositions of error on appeal:

I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF CHILD SEXUAL ABUSE;

II. THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY REGARDING APPELLANT’S POST-IMPRISONMENT SUPERVISION;

III. APPELLANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL;

IV. THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY THAT APPELLANT WOULD RECEIVE ADDITIONAL PUNISHMENT OF SEX OFFENDER REGISTRATION IF FOUND GUILTY; and

V. THE CUMULATIVE EFFECT OF ALL THESE ERRORS DEPRIVED APPELLANT OF A FAIR AND IMPARTIAL PROCEEDING.

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. Johnson’s judgment and sentence is AFFIRMED.

**Proposition I.** Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to find Johnson willfully raped H.J. and was thus guilty beyond a reasonable doubt of child sexual abuse. Jackson U. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Davis U. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111; Lockett U. State, 2002 OK CR 30, I 13, 53 P.3d 418, 423; Glossip U. State, 2007 OK CR 12, I 39, 157 P.3d 143, 151; 21 O.S.Supp. 2014, § 843.5(E). Despite Johnson’s contention that his actions were not willful because he did not intend to rape H.J., but rather the incident was the result of an erotic dream, the jury’s resolution of this issue was clearly within the bounds of reason and this Court will not interfere with their verdict. Day U. State, 2013 OK CR 8, IT 12, 303 P.3d 291, 298 (Jurors decide what weight and credibility to give to conflicting evidence.); Gilson v. State, 2000 OK CR 14, I 77, 8 P.3d 883, 910 (Although there may be conflicts in the evidence and different inferences drawn therefrom, if there is competent evidence to support the verdict, we will not interfere on appeal.). Proposition I is denied.

**Proposition II.** Contrary to Johnson’s assertion on appeal, the record shows the jury in fact was instructed that Johnson would be required to serve a term of post-imprisonment supervision upon conviction. Proposition II is denied.

**Proposition III.** To prevail on an ineffective assistance of counsel claim, Johnson must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland U. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Harrington U. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011) (discussing Strickland, supra). Johnson argues that his trial counsel was constitutionally ineffective for failing to request a jury instruction on the defense of unconsciousness or automatism. [A] defendant is entitled to have an instruction on his or her theory of defense if it is supported by the evidence and is tenable as a matter of law. Miller U. State, 2013 OK CR 11, 9 139, 313, P.3d 934, 981. However, [a] theory of defense instruction is properly refused if there is insufficient evidence to support it. Davis, 2011 OK CR 29, I 94, 268 P.3d at 114. Furthermore, self-serving statements alone are not sufficient to require the trial court to give an instruction. Ross U. State, 1986 OK CR 49, IT 15, 717 P.2d 117, 122. To support an instruction on the defense of unconsciousness or automatism, prima facie evidence must be presented to prove the defendant committed the act charged without being conscious thereof. 21 O.S.2011, § 152(6). The defense may be used in situations where the otherwise criminal conduct of an individual is the result of an involuntary act which is completely beyond the individual’s knowledge and control. Sellers v. State, 1991 OK CR 41, I 32, 809 P.2d 676, 686. [A] person who acts automatically does so without intent, exercise of free will, or knowledge of the act. Id., 1991 OK CR 41, II 33, 809 P.2d at 686 (emphasis added). Examples of automatic conduct are blackouts and epileptic seizures where the individual is deemed not to have acted at all. Id., 1991 OK CR 41, I 36, 809 P.2d at 687. Upon review, we find the only evidence to support the defense of unconsciousness or automatism was Johnson’s own self-serving statements which alone were insufficient to support the giving of an instruction on the defense. Ross, 1986 OK CR 49, I 15, 717 P.2d at 122. Johnson thus fails to show either deficient performance or prejudice from trial counsel’s failure to request an instruction on the defense of unconsciousness or automatism. Proposition III is denied.

**Proposition IV.** Johnson claims the trial court erred in failing to sua sponte instruct the jury that if convicted, Johnson would be required to register as a convicted sex offender under Oklahoma law. As Johnson failed to request an instruction at trial concerning sex offender registration, our review of this claim is limited to plain error review. Bivens U. State, 2018 OK CR 33, I 27, 431 P.3d 985, 995. Johnson fails to demonstrate actual or obvious error. See Musonda U. State, 2019 OK CR 1, I 6, 435 P.3d 694, 696 (outlining the plain error doctrine). This Court rejected Appellant’s claim that instruction on sex offender registration was required in Reed v. State, 2016 OK CR 10, II 14-19, 373 P.3d 118, 122-23. Proposition IV is denied.

**Proposition V.** We deny Johnson’s cumulative error claim because we have found no substantive errors on appeal that affected Johnson’s trial rights. Tafolla U. State, 2019 OK CR 15, I 45,_P.3d_. Proposition V is denied.

DECISION
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. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. Under 21 O.S.Supp.2015, § 13.1, Johnson must serve not less than eighty-five (85) percent of his sentence before becoming eligible for parole.
  2. Jackson U. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Davis U. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111; Lockett U. State, 2002 OK CR 30, I 13, 53 P.3d 418, 423; Glossip U. State, 2007 OK CR 12, I 39, 157 P.3d 143, 151; 21 O.S.Supp. 2014, § 843.5(E).
  3. Strickland U. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Harrington U. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011) (discussing Strickland, supra).
  4. Miller U. State, 2013 OK CR 11, 9 139, 313, P.3d 934, 981.
  5. Davis, 2011 OK CR 29, I 94, 268 P.3d at 114.
  6. Ross U. State, 1986 OK CR 49, IT 15, 717 P.2d 117, 122.
  7. 21 O.S.2011, § 152(6).
  8. Sellers v. State, 1991 OK CR 41, I 32, 809 P.2d 676, 686.
  9. Id., 1991 OK CR 41, II 33, 809 P.2d at 686.
  10. Id., 1991 OK CR 41, I 36, 809 P.2d at 687.
  11. Ross, 1986 OK CR 49, I 15, 717 P.2d at 122.
  12. Bivens U. State, 2018 OK CR 33, I 27, 431 P.3d 985, 995.
  13. Musonda U. State, 2019 OK CR 1, I 6, 435 P.3d 694, 696.
  14. Reed v. State, 2016 OK CR 10, II 14-19, 373 P.3d 118, 122-23.
  15. Tafolla U. State, 2019 OK CR 15, I 45, P.3d.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.5 - Child Sexual Abuse
  • Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
  • Okla. Stat. tit. 21 § 152(6) - Definition of Unconsciousness

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:

  • Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)
  • Davis v. State, 2011 OK CR 29, ¶ 74, 268 P.3d 86, 111
  • Lockett v. State, 2002 OK CR 30, ¶ 13, 53 P.3d 418, 423
  • Glossip v. State, 2007 OK CR 12, ¶ 39, 157 P.3d 143, 151
  • Miller v. State, 2013 OK CR 11, ¶ 139, 313 P.3d 934, 981
  • Ross v. State, 1986 OK CR 49, ¶ 15, 717 P.2d 117, 122
  • Sellers v. State, 1991 OK CR 41, ¶ 32, 809 P.2d 676, 686
  • Bivens v. State, 2018 OK CR 33, ¶ 27, 431 P.3d 985, 995
  • Musonda v. State, 2019 OK CR 1, ¶ 6, 435 P.3d 694, 696
  • Reed v. State, 2016 OK CR 10, ¶¶ 14-19, 373 P.3d 118, 122-23
  • Tafolla v. State, 2019 OK CR 15, ¶ 45, P.3d

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