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F-2017-1029

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Timothy Brian Bussell v State Of Oklahoma

F-2017-1029

Filed: May 23, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Timothy Brian Bussell appealed his conviction for Rape in the First Degree for a victim who was unconscious. The conviction was for life imprisonment with the possibility of parole. Judge Kuehn dissented. Bussell was found guilty by a jury and his co-defendant, Willie Donnell Jackson, was also convicted of the same crime. Bussell raised ten complaints about the trial, including issues about the fairness of the trial process and the evidence against him. However, the Oklahoma Court of Criminal Appeals reviewed all the claims and found no mistakes that would change the outcome. They upheld the original decision, affirming Bussell's conviction and sentence.

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 the delivery and filing of this decision.

Issues

  • was there a denial of due process of law due to the state's failure to allege specific facts of a crime in the information?
  • did the evidence support that appellant aided and abetted the co-defendant in committing sexual relations with the victim?
  • did the state's information fail to allege a crime and put the appellant on notice of what he had to defend against?
  • was the state required to elect which claim of rape it was relying on for a conviction, and was there an improper variance in the evidence presented at trial?
  • should the case against appellant have been dismissed due to the incredible and uncorroborated testimony of the victim?
  • was there an abuse of discretion in denying the appellant's motion to sever his trial from that of the co-defendant?
  • did a state witness invade the province of the jury by testifying to whether a rape occurred?
  • was there ineffective assistance of counsel which warranted reversing the appellant's conviction?
  • was there prosecutorial misconduct that warranted a reversal of the conviction?
  • should the appellant's sentence be reversed or modified as excessive and shocking to the conscience of the court?

Findings

  • the court did not err in refusing to grant the defendant's motion to dismiss due to the state's failure to allege specific facts of a crime in the information
  • evidence was sufficient to support Bussell's conviction for first degree rape as an aider and abettor
  • the court did not err in denying the defendant's motion to dismiss based on insufficient allegations in the information
  • the state was not required to elect which claim of rape it was relying on for a conviction
  • the case against appellant was not dismissed due to the credibility of the victim’s testimony
  • the trial court did not abuse its discretion in denying Bussell's motion to sever
  • the court did not err in allowing a witness to testify as to the ultimate issue of whether or not a rape occurred
  • appellant's ineffective assistance of counsel claim was denied
  • prosecutorial misconduct was not present
  • appellant's sentence was not excessive and did not shock the conscience of the court

F-2017-1029

May 23, 2019

Timothy Brian Bussell

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN

HUDSON, JUDGE: Appellant, Timothy Brian Bussell, was convicted by a jury of Rape in the First Degree-Victim Unconscious, in violation of 21 O.S.2011, § 1114(A)(4), in the District Court of Tulsa County, Case No. CF-2015-4151. The jury recommended a sentence of life imprisonment without the possibility of parole. The Honorable William D. LaFortune, District Judge, pronounced judgment but deviated from the jury’s recommendation, instead sentencing Bussell to life imprisonment with the possibility of parole. Bussell will be required to serve not less than 85% of the sentence imposed. 21 O.S.Supp.2015, § 13.1. Bussell was tried jointly with co-defendant Willie Donnell Jackson who was also convicted of this same offense and ultimately received the same sentence, i.e., life imprisonment. A third co-defendant, Cody Lane Alexander, entered a negotiated plea of guilty to this same charge early in the case and was sentenced to a six (6) year suspended sentence. The record shows Bussell rejected the State’s plea offer of a five (5) year suspended sentence for his role in this crime. Jackson similarly rejected a plea offer of five (5) years imprisonment in this case. Jackson’s appeal is currently pending before this Court in Willie Donnell Jackson v. State of Oklahoma, No. F-2017-1099.

Bussell now appeals, raising ten (10) propositions of error before this Court:

I. IT WAS A DENIAL OF DUE PROCESS OF LAW TO REFUSE TO GRANT THE DEFENDANT’S MOTION TO DISMISS DUE TO THE STATE’S FAILURE TO ALLEGE SPECIFIC FACTS OF A CRIME IN THE INFORMATION;

II. THERE WAS INSUFFICIENT PROOF THAT APPELLANT DID ANYTHING TO AID AND ABET WILLIE JACKSON HAVING SEXUAL RELATIONS WITH T.M.;

III. THE STATE’S INFORMATION [SIC] FAILED TO ALLEGE A CRIME, IT DID NOT ALLEGE SUFFICIENT FACTS TO PUT APPELLANT ON NOTICE OF WHAT HE HAD TO DEFEND AGAINST AND THE DEFENDANT’S MOTION TO DISMISS AND DEMURRER SHOULD HAVE BEEN SUSTAINED;

IV. THE STATE WAS REQUIRED TO ELECT WHICH CLAIM OF RAPE IT WAS RELYING ON FOR A CONVICTION IN THIS CASE AND APPELLANT’S CONVICTION SHOULD BE REVERSED DUE TO AN IMPROPER VARIANCE IN THE EVIDENCE BETWEEN THE CRIME HE WAS CHARGED WITH AND THE EVIDENCE PRESENTED AT TRIAL;

V. THE CASE AGAINST APPELLANT SHOULD HAVE BEEN DISMISSED DUE TO THE INCREDIBLE AND UNCORROBORATED TESTIMONY OF T.M.;

VI. APPELLANT’S TRIAL SHOULD HAVE BEEN SEVERED FROM MR. JACKSON AND FAILURE TO DO SO DEPRIVED APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW;

VII. A STATE WITNESS WAS ALLOWED TO INVADE THE PROVINCE OF THE JURY AND TELL THE JURY WHAT THE LAW WAS BY TESTIFYING TO THE ULTIMATE ISSUE OF WHETHER OR NOT A RAPE OCCURRED;

VIII. APPELLANT’S CONVICTION SHOULD BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL;

IX. APPELLANT’S CONVICTION SHOULD BE REVERSED DUE TO PROSECUTORIAL MISCONDUCT;

X. APPELLANT’S SENTENCE SHOULD BE REVERSED OR MODIFIED AS EXCESSIVE AND SHOCKS [SIC] THE CONSCIENCE OF THE COURT.

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. Appellant’s judgment and sentence is AFFIRMED.

Proposition I. Bussell did not challenge the sufficiency of the amended Information, let alone argue that a fatal variance arose between the proof at trial and the allegations contained within the amended Information. Our review of this claim on appeal is thus limited to plain error. To be entitled to relief under the plain error doctrine, Bussell must show an actual error, which is plain or obvious, and which affects his substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. The information need not specifically allege that the defendant aided and abetted the offense. Additional facts need not be alleged beyond those required to charge the crime against the one aided and abetted. In the present case, the State nonetheless specifically alleged that Bussell acted in concert with his co-defendants to unlawfully, feloniously, willfully and knowingly have sexual intercourse with the unconscious victim. Bussell’s complaint that he was not charged exclusively as an aider and abettor, consistent with the State’s theory at trial, clearly fails. It cannot be said on the record before this Court that Bussell was misled by the amended Information or that conviction under it would expose him to the possibility of being put in jeopardy a second time for the same offense. The real issue here is notice and it is clear Bussell had notice of both the evidence and the State’s theory of the case well before trial and what he would be required to defend against. There is no actual or obvious error and, thus, no plain error. Proposition I is denied.

Proposition II. Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to find Bussell guilty beyond a reasonable doubt of first degree rape as alleged in this case. Bussell did more than just film this spectacle. The jury could reasonably infer based upon the video itself that Bussell lent direction, support and encouragement to co-defendant Jackson’s sexual intercourse with the unconscious victim. Thus, the evidence allowed the jury to infer Bussell was more than a mere bystander. Sufficient evidence was presented at trial to support Bussell’s conviction for first degree rape as an aider and abettor to its commission by Jackson. Proposition II is denied.

Proposition III. Bussell did not challenge the sufficiency of the probable cause affidavit below by filing a motion to suppress his arrest. He has therefore waived review on appeal of all but plain error. Bussell fails to show actual or obvious error. An arrest warrant may issue only upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense. The purpose being, of course, to protect the accused from an unreasonable seizure. We have held that [t]he existence of probable cause is a common sense standard requiring facts sufficient to warrant a man of reasonable caution in the belief that an offense has or is being committed. Review of the probable cause affidavit in this case shows that the Magistrate had a substantial basis for concluding that probable cause existed to support Bussell’s arrest on the first degree rape charge alleged in the Information. Proposition III is denied.

Proposition IV. Bussell did not complain below that the State was required to elect which theory of the case it was relying upon for Bussell’s conviction. Nor did he challenge the trial court’s instructions based on this complaint. He has therefore waived review of this claim for all but plain error. Bussell fails to show actual or obvious error with this claim and, thus, there is no plain error. We have held that [w]here the information charges a single offense in one count and the proof develops that the accused may have been guilty of another like offense, the [S]tate should be required to elect as to which transaction it will rely upon for a conviction. The record shows that the prosecutor effectively elected the sexual act upon which it was proceeding in the case by charging Bussell with raping the unconscious victim while acting in concert each with the other of his co-defendants; advancing this factual theory of guilt during closing argument as the one upon which the State sought a conviction; and distinguishing during closing argument the victim’s testimony concerning Bussell’s earlier act of sexual intercourse with her when she blacked out as being important to support the charged offense. Furthermore, the written instructions were specifically directed towards this particular act by repeating the charge contained within the amended Information and by fully instructing on the accomplice liability of aiders and abettors. Proposition IV is denied.

Proposition V. We have held that a rape conviction may be sustained upon the uncorroborated testimony of the victim unless such testimony appears incredible or so unsubstantial as to make it unworthy of belief. In the present case, the victim’s testimony was corroborated by the video filmed by Bussell showing Jackson having sex with the obviously unconscious victim as well as the still photographs introduced into evidence. Proposition V is denied.

Proposition VI. We review the trial court’s denial of a defendant’s motion to sever for abuse of discretion. An abuse of discretion is defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. The trial court did not abuse its discretion in denying Bussell’s motion to sever. This is not a case where one defendant sought to inculpate the other in an effort at exoneration. Rather, the record shows both defendants pursued the common defense of attacking the victim with her prior inconsistent statements and the nature of her allegations in an attempt to characterize the entire affair between her and the defendants as consensual. The issue is neither whether defendants disagree about facts nor whether one defendant claims the other should bear greater responsibility. Conflicting defenses or cases in which both defendants admit to presence and some participation in the crimes do not require severance. In the present case, Bussell admitted to filming the video featuring Jackson having sex with the unconscious victim. The defenses presented were remarkably united in their attempts to secure an acquittal by attacking the victim’s credibility. Severance was unwarranted based on this record. Proposition VI is denied.

Proposition VII. Bussell’s challenge to Corporal Leverington’s testimony is, with one exception, waived for all but plain error review. Bussell fails to show actual or obvious error affecting his substantial rights from either of the two portions of Leverington’s testimony which drew no objection. Bussell also fails to show error from the admission of that portion of Leverington’s challenged testimony which drew an objection. The only improper opinion testimony presented in these various passages was Leverington’s characterization of what he saw on the video as a rape. Nonetheless, there was no prejudice because the jury was presented with the video and was able to reach its own conclusions concerning whether a rape occurred in light of the law given in the instructions. Proposition VII is denied.

Proposition VIII. 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. Bussell fails to show deficient performance or prejudice based upon counsel’s performance with any of his ineffectiveness claims. Proposition VIII is denied.

Proposition IX. Bussell failed to object to any of the comments by the prosecutor now challenged on appeal, thus waiving review of all but plain error. There is no actual or obvious error from any of these challenges. Taken in context, the prosecutor’s challenged comments describing Bussell and his co-defendants as sexual predators and likening them to big game hunters that bagged a trophy amounted to reasonable comment on the evidence and was responsive to defense argument. The prosecutor’s comparison of this case with the movie The Accused was mere argument that fell within the parameters of appropriate advocacy. Bussell was not deprived of a fundamentally fair trial in violation of due process from the challenged comments. Proposition IX is denied.

Proposition X. This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. In judging whether a defendant’s sentence is excessive, we do not conduct a proportionality review on appeal. The sentence imposed in this case is factually substantiated, does not shock the conscience and is not excessive. The record shows that Bussell participated with his codefendants in videotaping the rape of the unconscious victim. The video too shows that all three codefendants achieved maximum sexual degradation of the victim during this episode. Under these circumstances, we cannot say that the sentence imposed was excessive. Proposition X 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 the delivery and filing of this decision.

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Footnotes:

  1. Bussell will be required to serve not less than 85% of the sentence imposed. 21 O.S.Supp.2015, § 13.1.
  2. See Romano v. State, 1995 OK CR 74, I 18, 909 P.2d 92, 109.
  3. Baird U. State, 3 2017 OK CR 16, I 25, 400 P.3d. 875, 883; Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395; 20 O.S.2011, § 3001.1.
  4. See Miles U. State, 1996 OK CR 24, I 4, 922 P.2d 629, 630; Sims v. State, 1988 OK CR 193, I 10, 762 P.2d 270, 272.
  5. 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.2011, § 1114(A)(4).
  6. Simpson, 1994 OK CR 40, IT 12, 876 P.2d at 695.
  7. Mollett v. State, 1997 OK CR 28, I 11, 939 P.2d 1, 6.
  8. Id., 1997 OK CR 28, 14, 939 P.2d at 7 (internal quotation omitted).
  9. Bland v. State, 2000 OK CR 11, "I 45, 4 P.3d 702, 717.
  10. Lee U. State, 1925 OK CR 499, 32 Okl.Cr. 117, 121, 240 P. 148, 149.
  11. To the extent Bussell complains that the trial court erred in failing to grant his demurrer to the evidence at the conclusion of the State's case, he has waived review of this claim.
  12. Collins v. State, 2009 OK CR 32, I 32, 223 P.3d 1014, 1023.
  13. Cody U. State, 1961 OK CR 43, II 37-38, 361 P.2d 307, 320; McManus v. State, 1931 OK CR 110, 50 Okl.Cr. 354, 358, 297 P. 830, 831; Gracy U. State, 1917 OK CR 145, 13 Okl.Cr. 643, 649-51, 166 P. 442, 444-45.
  14. Colbert v. State, 1986 OK CR 15, I 12, 714 P.2d 209, 211.
  15. Jones U. State, 1988 OK CR 281, II 10, 765 P.2d 800, 802.
  16. Chance U. State, 1975 OK CR 119, I 20, 539 P.2d 412, 416-17.
  17. Pullen U. State, 2016 OK CR 9 18, I 4, 387 P.3d 922, 925.
  18. Fowler v. State, 1994 OK CR 27, I 4 n.2, 873 P.2d 1053, 1055 n.2.
  19. Littlejohn U. State, 2004 OK CR 6, I 34, 85 P.3d 287, 299.
  20. Romano, 1995 OK CR 74, I 21, 909 P.2d at 109.
  21. Strickland U. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
  22. Harrington U. Richter, 562 U.S. 86, 104-05, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011).
  23. Bramlett U. State, 2018 OK CR 19, IT 36, 422 P.3d 788, 799.
  24. Darden U. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986); Matricia v. State, 1986 OK CR 152, I 15, 726 P.2d 900, 904.
  25. Baird, 2017 OK CR 16, I 40, 400 P.3d at 886; Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149.
  26. Rea, 2001 OK CR 28, I 5, 34 P.3d at 149.
  27. Logan v. State, 2013 OK CR 2, IT 2, 293 P.3d 969, 980 (Lumpkin, J., concurring in part/dissenting in part).
  28. Coddington v. State, 2011 OK CR 17, I 89, 254 P.3d 684, 716; Berget v. State, 1995 OK CR 66, I 30, 907 P.2d 1078, 1086; Perez v. State, 1980 OK CR 59, I 11, 614 P.2d 1112, 1115.
  29. Postelle v. State, 2011 OK CR 30, I 90, 267 P.3d 114, 146.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1114(A)(4) (2011) - Rape in the First Degree-Victim Unconscious
  • Okla. Stat. tit. 21 § 13.1 (2015) - Sentence for Crimes
  • Okla. Stat. tit. 22 § 432 (2011) - Information Required
  • Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 17 U.S.C. § 107 - Copyright - Limitations on exclusive rights: Fair use
  • 466 U.S. § 668 - Criminal Procedure - Effect of convicted defendant's sentence
  • 477 U.S. § 168 - Criminal Procedure - Effect of accused's statement on presence of error

Other citations:

No other rule citations found.

Case citations:

  • Romano v. State, 1995 OK CR 74, I 18, 909 P.2d 92, 109
  • Baird v. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883
  • Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 690, 701
  • Rounds v. State, 1984 OK CR 49, I 20, 679 P.2d 283, 287
  • 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, I 74, 268 P.3d 86, 111
  • Lockett v. State, 2002 OK CR 30, I 13, 53 P.3d 418, 423
  • Glossip v. State, 2007 OK CR 12, I 39, 157 P.3d 143, 151
  • Miles v. State, 1996 OK CR 24, I 4, 922 P.2d 629, 630
  • Sims v. State, 1988 OK CR 193, I 10, 762 P.2d 270, 272
  • Mollett v. State, 1997 OK CR 28, I 11, 939 P.2d 1, 6
  • Bland v. State, 2000 OK CR 11, I 45, 4 P.3d 702, 717
  • Lee v. State, 1925 OK CR 499, 32 Okl.Cr. 117, 121, 240 P. 148, 149
  • Louis v. State, 1950 OK CR 102, 92 Okl.Cr. 156, 160, 222 P.2d 160, 162
  • Cooper v. State, 1925 OK CR 384, 31 Okl.Cr. 217, 221, 238 P. 503, 504
  • Cody v. State, 1961 OK CR 43, II 37-38, 361 P.2d 307, 320
  • McManus v. State, 1931 OK CR 110, 50 Okl.Cr. 354, 358, 297 P. 830, 831
  • Gracy v. State, 1917 OK CR 145, 13 Okl.Cr. 643, 649-51, 166 P. 442, 444-45
  • Colbert v. State, 1986 OK CR 15, I 12, 714 P.2d 209, 211
  • Jones v. State, 1988 OK CR 281, II 10, 765 P.2d 800, 802
  • Chance v. State, 1975 OK CR 119, I 20, 539 P.2d 412, 416-17
  • Pullen v. State, 2016 OK CR 18, I 4, 387 P.3d 922, 925
  • Fowler v. State, 1994 OK CR 27, I 4 n.2, 873 P.2d 1053, 1055 n.2
  • Littlejohn v. State, 2004 OK CR 6, I 34, 85 P.3d 287, 299
  • Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)
  • Harrington v. Richter, 562 U.S. 86, 104-05, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011)
  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799
  • Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986)
  • Matricia v. State, 1986 OK CR 152, I 15, 726 P.2d 900, 904
  • Baird v. State, 2017 OK CR 16, I 40, 400 P.3d at 886
  • Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149

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