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F-2017-1098

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Rodger Dale Stevens v The State Of Oklahoma

F-2017-1098

Filed: May 16, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Rodger Dale Stevens appealed his conviction for Performing a Lewd Act in the Presence of a Minor. His conviction and sentence were for life imprisonment. Judge Hudson dissented. In this case, Stevens was found guilty of performing a sexual act in front of a 7-year-old boy. The jury believed that he did this for his own sexual gratification. Stevens argued that there wasn't enough evidence to prove he was trying to do something sexual in front of the child and asked for a new trial or a lesser charge. However, the court decided that the evidence was sufficient to support his conviction. Stevens also claimed that using the habitual offender law to increase his sentence was unfair and that he did not have the chance to defend himself properly. The court found that this claim was not valid because he did not show any harm from how his trial was handled. He raised other arguments, saying that evidence about his relationship with the boy's mother and comments made by the prosecutor were inappropriate, but the court disagreed and said these points did not significantly impact his trial. Finally, Stevens felt that his life sentence was too harsh. The court ruled that his actions were serious, and because he had previous convictions, the sentence was within the law. They denied all his claims and upheld the original decision.

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 the evidence sufficient to prove the elements of performing a lewd act in the presence of a child?
  • did the use of the habitual offender statute to enhance his sentence deny him a fair trial?
  • was he denied a fair trial from the admission of irrelevant and prejudicial evidence?
  • did prosecutorial misconduct deprive him of a fair trial?
  • did he receive effective assistance of trial counsel?
  • is his sentence excessive?

Findings

  • the evidence was sufficient to support the conviction for performing a lewd act in the presence of a child
  • the use of the habitual offender statute to enhance the sentence was not erroneous
  • the admission of irrelevant and prejudicial evidence did not constitute plain error
  • the prosecutorial misconduct claims did not warrant relief
  • the ineffective assistance of counsel claim was denied due to lack of demonstrated prejudice
  • the sentence was not excessive

F-2017-1098

May 16, 2019

Rodger Dale Stevens

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant Rodger Dale Stevens appeals his Judgment and Sentence from the District Court of Creek County, Case No. BCF- 2016-412, for Performing a Lewd Act in the Presence of a Minor, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2015, § 1123(A)(5). The Honorable Joe Sam Vassar, District Judge, presided over Stevens’ jury trial and sentenced him, in accordance with the jury’s verdict, to life imprisonment. Stevens appeals raising the following issues: (1) whether the evidence was sufficient to prove the elements of performing a lewd act in the presence of a child; (2) whether he was denied a fair trial from the use of the habitual offender statute, 21 O.S.2011, § 51.1(B), to enhance his sentence; (3) whether he was denied a fair trial from the admission of irrelevant and prejudicial evidence; (4) whether prosecutorial misconduct deprived him of a fair trial; (5) whether he received the effective assistance of trial counsel; and (6) whether his sentence is excessive. We find relief is not required and affirm the Judgment and Sentence of the district court.

1. Sufficiency of the Evidence
Stevens contends his conviction must be reversed because of insufficient evidence. He argues the State failed to prove beyond a reasonable doubt that the victim’s presence during his own masturbation was for sexual gratification. He maintains the sexual gratification element of the crime is directed at the act of exposing the child to the sexual act rather than the sexual act itself. He admits his conduct arguably violated the law and could support convictions for either indecent exposure or outraging public decency. Accordingly, he asks the Court either to remand his case for trial on indecent exposure and outraging public decency or to modify his conviction to the appropriate crime and remand for resentencing. Evidence is sufficient to support a conviction if, viewing the evidence and all reasonable inferences from it in the light most favorable to the State, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. This Court does not reweigh conflicting evidence or second-guess the fact-finding decisions of the jury; we accept all reasonable inferences and credibility choices that tend to support the verdict. We further recognize that the law makes no distinction between direct and circumstantial evidence and either, or any combination of the two, may be sufficient to support a conviction. Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction so long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt. The evidence showed that Stevens put lotion on his penis and masturbated in front of a seven-year-old boy who was seated on the bed a few feet away. Stevens asked the boy to disrobe while he masturbated. The victim’s testimony in this case provided compelling proof that Stevens derived sexual gratification from exposing the boy to his sex act. Moreover, Stevens’ texts to the victim’s mother evidenced a consciousness of guilt. The jury understandably rejected the notion that Stevens’ motive for masturbating in front of the boy was not for his own sexual gratification but to teach the boy to be comfortable with his own body. Based on the evidence, we find any rational jury could find the necessary elements of performing a lewd act in the presence of a child under 12. This claim is rejected.

2. Sentence Enhancement
Stevens argues using the general habitual offender statute, 21 O.S.2011, § 51.1(B), to enhance his sentence resulted in the State’s erroneous presentation of aggravating evidence of his prior convictions in the sentencing stage of his bifurcated trial without the defense having the concomitant right to present mitigating evidence, resulting in a grossly inflated sentence. He contends Section 1123(A) provides the specific enhancement provision applicable to his case that controls over Section 51.1. He maintains Section 51.1 was misused in this case because: (1) application of Section 51.1 created a clearly unintended anomaly that the minimum sentence for an offender with prior convictions was five years less than for a first time offender of Section 1123(A); and (2) there was no enhancement of sentence based on prior convictions because the maximum sentence was the same under both Section 1123(A) and Section 51.1(B) and, as noted previously, the minimum sentence was less for a former felon under Section 51.1. According to Stevens, he should have been tried in a single stage proceeding without presentation of his prior convictions and his jury instructed the range of punishment was not less than twenty-five years imprisonment. Because Stevens neither objected to the bifurcation of his trial nor to the admission of his prior convictions for sentence enhancement, review is for plain error only. Stevens has the burden in plain error review to demonstrate that an error, plain or obvious under current law, adversely affected his substantial rights. The Legislature set the range of punishment for a violation of Section 1123(A) of a child under 12 at not less than twenty-five (25) years and the range of punishment for an offender convicted of an enumerated offense with two or more previous convictions at twenty years to life imprisonment. Stevens claims the range of punishment instruction of 20 years to life imprisonment was wrong, but the error concerning the minimum sentence inured to his benefit. The Legislature established a specific penalty for three or more convictions of offenses under Section 1123(A) as well as a specific penalty for a conviction under Section 1123(A) that was preceded by two convictions of certain other sex offenses. The Legislature, however, did not address sentence enhancement in Section 1123(A) for those offenders with prior convictions that fall outside of Section 1123’s specific enhancement provisions. In interpreting statutory provisions we must avoid any construction which would make any part of the statutes superfluous or useless. The text of the statutes must guide our decision. In order to give effect to the Legislature’s expressed intentions we construe statutes using the plain and ordinary meaning of their language. Specific statutes control over general ones. Where possible, this Court will interpret conflicting statutory language to reconcile the provisions, make them consistent and give each provision effect. If the Legislature enacts a statute for a specific situation, we should give effect to that intent. Some criminal offenses, such as lewd or indecent acts committed against children under 12, are so reprehensible under society’s standards that the Legislature provided lengthy sentences with higher minimum sentences for a first violation. The State elected, as is its right, to enhance Stevens’ sentence under Section 51.1 and Stevens’ jury was properly instructed on the range of punishment. Contrary to Stevens’ claim, the State’s presentation of so-called aggravating evidence of his prior convictions in the sentencing stage of his bifurcated trial did not deny him a fair trial because of an inability by the defense to present mitigating evidence. That is all the law requires. The fact that enhancement under Section 51.1(B) did not result in Stevens’ exposure to a greater punishment range does not make the habitual offender statute inapplicable. Based on this record, Stevens has not shown it was error to hold a bifurcated trial and admit his prior convictions. This claim is denied.

3. Evidentiary Issues
Stevens argues admission of details about the nature of his relationship with the victim’s mother amounted to plain error. Specifically, he complains that her testimony, admitted without objection, involving Stevens’ proposal of a sugar daddy relationship and offer of financial support in exchange for sex was irrelevant. He also claims her testimony concerning his alleged threats and pressure not to end the relationship lest she receive no more money was also irrelevant and prejudicial. Because Stevens did not object to the testimony, review is for plain error only. Stevens concedes that the existence of his sexual relationship with the victim’s mother was not in itself unfairly prejudicial and was arguable admissible as part of the res gestae to explain why the victim was left alone with him. He contends, however, that evidence of the illicit details of the relationship and the alleged threats he made about ending the relationship were unnecessary to the State’s proof and that the evidence was more prejudicial than probative. The evidence is considered part of the res gestae when: a) it is so closely connected to the charged offense as to form part of the entire transaction; b) it is necessary to give the jury a complete understanding of the crime; or c) when it is central to the chain of events. The Evidence Code permits the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. The influence Stevens had over the victim’s mother put in context other evidence and explained why she continued to allow Stevens to have contact with her son. Nor was the probative value of the challenged evidence substantially outweighed by the danger of unfair prejudice. Because the challenged evidence gave the jury a complete understanding of the crime and was not unfairly prejudicial, this claim is rejected.

4. Prosecutorial Misconduct
Stevens argues he was denied a fair trial because of prosecutorial misconduct. He challenges three statements made by the prosecutor, two during first stage closing argument and one during second stage closing argument. Only one of the challenged statements drew an objection. A prosecutor’s conduct not met with objection is reviewed for plain error only. Both parties have wide latitude in closing argument to argue the evidence and reasonable inferences from it. This Court will not grant relief on a claim of prosecutorial misconduct unless improper argument effectively deprived the defendant of a fair trial or a fair and reliable sentencing proceeding. We evaluate the prosecutor’s comments within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. It is the rare instance when a prosecutor’s misconduct during closing argument was so egregiously detrimental to a defendant’s right to a fair trial that reversal is required. There is nothing in any of the challenged comments, individually or cumulatively, that exceeds the wide latitude parties have to discuss the evidence and reasonable inferences from it. Based on the record, Stevens has not shown the existence of an error. Because the remarks fall within the latitude of argument permitted by this Court, no relief is warranted. This claim is denied.

5. Ineffective Assistance of Counsel
Stevens argues he was denied a fair trial because of ineffective assistance of counsel. Stevens faults defense counsel for failing to object to use of the habitual offender statute for sentence enhancement and to the presentation of his prior convictions, for failing to object to admission of details about the nature of his relationship with the victim’s mother and for failing to object to the alleged prosecutorial misconduct. This claim is without merit. This Court reviews claims of ineffective assistance of counsel to determine: (1) whether counsel’s performance was constitutionally deficient; and (2) whether counsel’s performance prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Under this test, Stevens must affirmatively prove prejudice resulting from his attorney’s actions. It is not enough to show the failure had some conceivable effect on the outcome of the proceeding. Rather, he must show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. This Court need not determine whether counsel’s performance was deficient if there is no showing of harm. Stevens’ claims concerning sentence enhancement, testimony, and allegations of prosecutorial misconduct have been rejected in the preceding propositions. He cannot show on this record that, but for counsel’s actions, the result of his trial would have been different. Because he has failed to establish the necessary prejudice from his attorney’s actions, his ineffective assistance of counsel claim is denied.

6. Excessive Sentence
Stevens contends his life sentence for masturbating in the presence of a young boy with no evidence of inappropriate touching is excessive, barbaric and grossly disproportionate. To support his excessive sentence claim, he notes the prosecutor offered five in, ten out prior to trial. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it shocks the conscience of the Court. This conviction was Stevens’ fourth felony conviction. His jury heard all the evidence and chose to impose the maximum punishment and the district court imposed that verdict. The crime committed was indefensible with the very real potential of lasting emotional harm for the victim. The sentence is within the range of punishment and does not meet this Court’s shock the conscience test. This claim 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, Stevens must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.
  2. Coddington U. State, 2006 OK CR 34, IT 70, 142 P.3d 437, 456; Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04.
  3. Day U. State, 2013 OK CR 8, I 12, 303 P.3d 291, 298; Coddington, 2006 OK CR 34, 9 70, 142 P.3d at 456.
  4. Miller U. State, 2013 OK CR 11, I 84, 313 P.3d 934, 965.
  5. Matthews v. State, 2002 OK CR 16, I 35, 45 P.3d 907, 919-20.
  6. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
  7. 57 O.S.Supp.2015, § 571.
  8. Section 571 provides a list of violent crimes, including lewd or indecent proposition or lewd or indecent acts with a child under sixteen (16) years of age, as provided in Section 1123 of Title 21.
  9. King U. State, 2008 OK CR 13, I 7, 182 P.3d 842, 844.
  10. Section 1123 provides in pertinent part: Except as provided in Section 51.1a of this title, any person convicted of a second or subsequent violation of this subsection shall be guilty of a felony punishable as provided in this subsection and shall not be eligible for probation, suspended or deferred sentence.
  11. Hogan, 2006 OK CR 19, I 39, 139 P.3d at 923.
  12. 12 O.S.2011, § 2403; Harmon v. State, 2011 OK CR 6, I 48, 248 P.3d 918, 936-37.
  13. Pullen v. State, 2016 OK CR 18, I 13, 387 P.3d 922, 927.
  14. Thompson v. State, 2018 OK CR 32, I 16, 429 P.3d 690, 694.
  15. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Malone U. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206.
  16. Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148.
  17. Head, 2006 OK CR 44, I 23, 146 P.3d at 1148.
  18. Malone, 2013 OK CR 1, I 16, 293 P.3d at 207.
  19. M.A. I W. v. State, 2008 OK CR 16, I 15, 185 P.3d 388, 392.
  20. Pullen, 2016 OK CR 18, I 13, 387 P.3d at 927.
  21. Hogan, 2006 OK CR 19, I 39, 139 P.3d at 923.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1123 (2015) - Performing a lewd act in the presence of a minor
  • Okla. Stat. tit. 21 § 13.1 (2015) - Parole eligibility
  • Okla. Stat. tit. 21 § 51.1(B) (2011) - Habitual offender statute
  • Okla. Stat. tit. 57 § 571 (2015) - Sentence enhancement for prior convictions
  • Okla. Stat. tit. 12 § 2403 (2011) - Exclusion of relevant evidence
  • Strickland v. Washington, 466 U.S. 668 (1984) - Ineffective assistance of counsel standard
  • Thompson v. State, 2018 OK CR 32 - Excessive sentence review standard

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:

  • Coddington v. State, 2006 OK CR 34, I 70, 142 P.3d 437, 456
  • Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
  • Day v. State, 2013 OK CR 8, I 12, 303 P.3d 291, 298
  • Miller v. State, 2013 OK CR 11, I 84, 313 P.3d 934, 965
  • Matthews v. State, 2002 OK CR 16, I 35, 45 P.3d 907, 919-20
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • King v. State, 2008 OK CR 13, I 7, 182 P.3d 842, 844
  • M.A. I W. v. State, 2008 OK CR 16, I 15, 185 P.3d 388, 392
  • Vanderpool v. State, 2018 OK CR 39, I 24, 434 P.3d 318, 324
  • Harmon v. State, 2011 OK CR 6, I 48, 248 P.3d 918, 936-37
  • Pryor v. State, 2011 OK CR 18, 4, 254 P.3d 721, 722
  • Mitchell v. State, 2018 OK CR 24, I 30, 424 P.3d 677, 686
  • Pullen v. State, 2016 OK CR 18, I 13, 387 P.3d 922, 927
  • Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
  • Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206

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