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F-2017-1149

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Justin David Moore v The State Of Oklahoma

F-2017-1149

Filed: Jul. 18, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Justin David Moore appealed his conviction for allowing underage drinking and child neglect. His conviction resulted in a sentence of five years for allowing minors to drink, three years for child neglect, and a $500 fine for transporting a loaded gun, with all sentences served at the same time. Judge John D. Hadden dissented. In the case, a 15-year-old named N.F. died from alcohol poisoning after attending a party where he drank too much. Moore was dating the mother of one of the party hosts and was accused of being responsible for the minors at the party because he allegedly lived at the house. The trial showed that Moore admitted to living with the boy's mother. Moore argued that the evidence wasn't strong enough to prove he lived there and that he didn't receive a fair trial because of his lawyer's mistakes and some witness testimonies. The court decided that the evidence did support the conviction, that Moore's lawyer did not make any major errors warranting a new trial, and that the witness testimonies did not affect the trial's fairness. Finally, Moore's request for credit for time served in jail before his trial was denied. Overall, the court upheld Moore's convictions, confirming that the jury made a correct decision based on the evidence provided.

Decision

The Judgment and Sentence of the district court is AFFIRMED. Moore's motion to supplement the record and request for evidentiary hearing on claim of ineffective assistance of trial counsel is DENIED. 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 trial evidence sufficient to support his convictions on the felony counts?
  • did he suffer a denial of a fair trial due to ineffective assistance of trial counsel?
  • did improper witness testimony deny him a fair trial and invade the province of the jury?
  • did the district court err by denying him credit for time served?

Findings

  • Evidence was sufficient to support convictions for permitting minors to possess or consume alcohol and child neglect.
  • The claim of ineffective assistance of trial counsel was denied.
  • The admission of improper witness testimony did not constitute plain error and was deemed harmless.
  • The district court did not err in denying credit for time served.

F-2017-1149

Jul. 18, 2019

Justin David Moore

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant Justin David Moore appeals his Judgment and Sentence from the District Court of Cleveland County, Case No. CF-2015-504, for Permitting Invitees Under 21 to Possess or Consume Alcohol (Count 1), in violation of 37 O.S.2011, § 8.2, Child Neglect (Count 2), in violation of 21 O.S.Supp.2014, § 843.5(C), and Transporting Loaded Firearm in Motor Vehicle, a misdemeanor (Count 3), in violation of 21 O.S.Supp.2012, § 1289.13. The Honorable Thad Balkman, District Judge, presided over Moore’s jury trial and sentenced him, in accordance with the jury’s verdict, to five years imprisonment on Count 1, three years imprisonment on Count 2, and a $500.00 fine on Count 3. Judge Balkman ordered the sentences to be served concurrently and further ordered a twelve month term of post-imprisonment supervision.

Moore appeals raising the following issues: (1) whether the trial evidence was sufficient to support his convictions on the felony counts; (2) whether he was denied a fair trial because of ineffective assistance of trial counsel; (3) whether improper witness testimony denied him a fair trial and invaded the province of the jury; and (4) whether the district court erred by denying him credit for time served. We find relief is not required and affirm the Judgment and Sentence of the district court.

Facts

On March 28, 2015, fifteen-year-old N.F. attended a party in Lexington, Oklahoma at the rural home of his sixteen-year-old friend Z.H. The home was well known among high schoolers for its bonfire parties and the underage drinking that accompanied them. N.F. consumed too much beer and alcohol and died from alcohol poisoning. Appellant Moore was in a dating relationship with Z.H.’s mother, Tonya Moss. Neither was present at the party. The issue at trial was whether Moore lived at the residence and was responsible for events occurring at the home and for the welfare of Z.H.

1. Moore argues his convictions for permitting minors to possess or consume alcohol (Count 1) and child neglect (Count 2) must be reversed because of insufficient evidence. He argues the State failed to prove beyond a reasonable doubt the residency element related to each crime, namely for Count 1 that the crime occurred at his residence or on land occupied by him and for Count 2 that he was a person responsible for Z.H.’s health, safety, or welfare because he lived with him and his mother. 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. Moore’s fate on the two felony charges hinged on whether he resided in the home or cohabitated with Tonya Moss when the victim died at one of her son’s underage drinking parties. The issue was litigated at trial with both sides offering competing evidence on the issue. The matter was decided as a question of fact by the jury against Moore. The trial evidence was sufficient to support the jury’s verdicts and included, inter alia, Moore’s admission that he resided with Moss in his post-arrest interview as well as the fact that his driver’s license listed her address as his residence. Based on this record, the jury reasonably found that Moore permitted minor invitees to consume alcohol at his residence and that he was responsible for Z.H. by way of residing with him and cohabitating with his mother. We reject Moore’s sufficiency of the evidence challenge and deny this claim.

2. Moore argues he was denied a fair trial because of ineffective assistance of trial counsel. He faults defense counsel for failing to object to improper testimony from Christi Williams, the child protective services investigator with the Department of Human Services (DHS). He also faults defense counsel for failing to present available evidence to show he did not live with Moss and Z.H. when the victim died. In conjunction with this claim, Moore submits a motion to supplement the record on appeal and request for evidentiary hearing on his extra-record ineffective assistance of trial counsel claim. 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. We begin our analysis with the strong presumption that defense counsel’s conduct fell within the wide range of reasonable professional assistance. To overcome this presumption, Moore must show that defense counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Moore must also affirmatively prove prejudice resulting from his attorney’s actions. To accomplish this, 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. Moreover, this Court will order an evidentiary hearing only if the application and affidavits contain sufficient information to show this Court by clear and convincing evidence [that] there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Moore’s claim faulting defense counsel for not objecting to Williams’ testimony is without merit because, as discussed infra, he has not shown the necessary prejudice from admission of the testimony. Nor has he shown that he is entitled to an evidentiary hearing to further develop his extra-record claim faulting defense counsel for not presenting available evidence to counter the State’s evidence that he lived with Moss and Z.H. Considering the record as a whole, we are unable to find that Moore has satisfied his burden. Defense counsel presented the defense theory that Moore resided elsewhere not only through cross-examination of prosecution witnesses but also through the testimony of three defense witnesses, including Moore himself. Indeed, defense counsel may have simply decided not to present the facts concerning Moore’s residence in the detail now considered more effective by appellate counsel. Because the record fails to establish clear and convincing evidence of a strong possibility that defense counsel was ineffective for failing to utilize the extra-record evidence, Moore’s motion to supplement the record and request for an evidentiary hearing, as well as his ineffective assistance of counsel claim, are denied.

3. Moore argues he was denied a fair trial from the admission of improper opinion testimony that invaded the province of the jury. He did not object to the challenged evidence at trial. We review the admission of testimony not met with objection for plain error only. Moore has the burden in plain error review to demonstrate that an error, plain or obvious under current law, adversely affected his substantial rights. Only if he does so will this Court entertain correcting the error provided the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or represented a miscarriage of justice. Moore challenges the testimony of Christi Williams, the child protective services worker who performed the DHS investigation involving the allegation Z.H. was a victim of child neglect. Moore contends Williams’ testimony was impermissible because: 1) she offered an expert opinion yet was not qualified as an expert witness; 2) she relied upon hearsay statements from Moss, a non-testifying co-defendant, in violation of his right of confrontation under Bruton v. United States; 3) she relied on out-of-court statements from collateral witnesses which constituted inadmissible hearsay; and 4) the probative value of her testimony was substantially outweighed by the danger of unfair prejudice. Williams testified that she worked for DHS and that her job duties entailed investigating allegations of child abuse and neglect to determine their validity. Although the prosecution did not explore her training, education and experience, her job responsibilities with DHS suggested she had some expertise in child neglect investigations either through knowledge, training, education, or experience. Regardless, the prosecution did not qualify Williams as an expert witness. The prosecution offered Williams as a fact witness and elicited an account of her knowledge and involvement in the DHS child neglect investigation of Z.H. Based on information she acquired during her investigation, however, she drew conclusions concerning the validity of the allegation that Z.H. was a neglected child and that Moore was a person responsible for Z.H.’s health, safety or welfare. She acknowledged on cross-examination that the burden to substantiate an allegation of child neglect in a DHS investigation was nowhere near the beyond a reasonable doubt standard of proof. Opinion evidence consists of what a witness thinks, believes or infers as opposed to his or her personal knowledge of facts. The rules of evidence place restrictions on opinion evidence. Witnesses who, by education, training or experience, have become expert in some area, may state their opinion on the relevant and material matter in which they possess expertise, and may also state their reasons for the opinion. If a witness is not testifying in the capacity of an expert and is a lay witness, he or she may offer an opinion but that opinion is limited to those inferences or opinions which are rationally based on the perception of the witness, are helpful to a clear understanding of his or her testimony or the determination of a fact in issue and are not based on scientific, technical or other specialized knowledge. Williams’ statements that child neglect had been substantiated by DHS and that Moore was by statute a person responsible for Z.H. constituted her opinion based upon conclusions drawn from information acquired during her investigation. Her opinion cannot be cast as an expert opinion in this case because she was not qualified as an expert either by knowledge, skill, experience, training or education. The question is whether Williams’ opinion falls within those opinions permitted by lay witnesses, namely opinions rationally based on the perception of the witness. Williams’ opinion does not qualify under the relevant statute as a lay opinion because her opinion was not based on personal knowledge. Lay witnesses may base their opinions only on information they personally observe. Williams’ opinions were based on information amassed during her investigation through personal interviews and her review of police reports rather than personal observation. Her opinions were inadmissible under the relevant statute and should have been excluded. Moore has shown the commission of a plain error. We must now determine whether relief is warranted. In the case of evidentiary error, the Court considers whether there are grave doubts that the outcome of the trial would have been materially affected had the error not occurred. Based on our review of the record, Williams’ testimony concerning the DHS investigation neither unfairly invaded the province of the jury nor told the jury what result to reach. As previously noted, Williams never repeated any of his co-defendant’s statements made during her interview or any statements made by Z.H. or other collateral witnesses. Although Williams relied, in part, on information imparted from these witnesses, she did not testify about any specific statements. Her lay opinions were inadmissible because they were not based on personal knowledge. Because there was no admission of hearsay through Williams’ testimony, there was no violation of the Confrontation Clause or the rules against hearsay. Under these circumstances, including the other evidence of Moore’s residency, we harbor no grave doubt that had Williams’ opinions not been presented, the jury still would have returned a guilty verdict on both Counts 1 and 2. Accordingly, we find that the admission of Williams’ opinions were harmless and that no relief is required. This claim is denied.

4. Moore contends the district court erred by denying him credit for time served to which he was statutorily entitled. He asserts he was entitled to credit for the nearly ten days he spent in jail from his arrest until his release on bond and for the nearly sixty days he served in jail after conviction but before formal sentencing. He argues the statute governing credit for time served is mandatory and that the district court committed an error of law in denying him credit. We disagree. The sentencing judge in Oklahoma has discretion in awarding credit for time served in jail before sentencing. An abuse of discretion is any unreasonable or arbitrary ruling made without proper consideration of the facts and law pertaining to the issue. The only exception is that a court may not require an indigent defendant to serve a sentence greater than the maximum provided by statute solely by reason of his or her indigency. Thus to comport with the Equal Protection Clause, a court must grant full credit toward the maximum term for time spent incarcerated prior to sentencing due to the accused’s inability to post bond. Moore received the maximum sentence on Count 1. The record shows he bonded out of jail within twenty days after his arrest. Although he first requested and was appointed counsel based on indigency, he subsequently retained counsel. The rule regarding discretion for time served is not applicable here and Moore does not assert any equal protection violation. The question is whether credit for time served was mandatory or discretionary under the statute. The governing statute provides that [t]he length of any jail term served by an inmate before being transported to a state correctional institution pursuant to a judgment and sentence of incarceration shall be deducted from the term of imprisonment at the state correctional institution. Moore relies on an earlier case for relief. The earlier court rejected a claim that the district court violated the appellant’s right to mitigate punishment by disallowing evidence showing the amount of time he served in jail while awaiting trial, noting [t]his argument is without merit, since the appellant will automatically receive credit for time served prior to trial. The former statute and the present statute simply require the Department of Corrections (DOC) to credit inmates for time served in the county jail after formal sentencing until the inmate is transported to a DOC facility. The Court erroneously interpreted the former statute because it did not require giving an inmate credit for time served prior to trial automatically. The earlier ruling is an outlier and has not been cited again by this Court. We find that the district court appropriately exercised its discretion in pronouncing sentence in this matter. We find Moore is not entitled to credit for time served and deny this claim.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. Moore’s motion to supplement the record and request for evidentiary hearing on claim of ineffective assistance of trial counsel is DENIED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. 1 Under 21 O.S.Supp.2014, § 13.1, Moore must serve 85% of his sentence of imprisonment on Count 2 before he is eligible for parole consideration.
  2. 2 Moore does not contest his misdemeanor conviction on appeal.
  3. 3 Specifically, Moore challenges Williams' testimony that: 1) her job was to determine whether allegations of abuse and neglect were true; 2) a judge had reviewed the pickup order taking Z.H. into protective custody and found it to be lawful; 3) state law mandates a finding that an adult living in the home of a child under 18 is responsible for that child; and 4) that Moore was a person responsible for Z.H. because he lived in the home with Z.H. and his mother.
  4. 4 Section 2702 provides: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case.
  5. 5 Moore also claims that Williams' testimony violated his right to confrontation because she relied in part on information acquired from his non-testifying co-defendant. He further claims that Williams' reliance upon statements made by Z.H., his father and other collateral witnesses violated the rule barring hearsay.
  6. 6 The State points out that the time Moore spent in jail during these two time periods was actually 82 days. Appellee's Brief at 37 n. 8.
  7. 7 Moore received the maximum sentence on Count 1.
  8. 8 The sentencing judge in Oklahoma has discretion in awarding credit for time served in jail before sentencing. Holloway U. State, 2008 OK CR 14, I 8, 182 P.3d 845, 847; Shephard U. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602.
  9. 9 Id.
  10. 10 Lloyd v. State, 1981 OK CR 5, I 8, 624 P.2d 74, 75.
  11. 11 57 O.S.Supp.2015, § 138(G), provides in relevant part that "[t]he length of any jail term served by an inmate before being transported to a state correctional institution pursuant to a judgment and sentence of incarceration shall be deducted from the term of imprisonment at the state correctional institution."
  12. 12 The former Section 138 (C) and the present Section 138 (G) simply require the Department of Corrections (DOC) to credit inmates for time served in the county jail after formal sentencing until the inmate is transported to a DOC facility.
  13. 13 Lloyd is an outlier and has not been cited again by this Court.
  14. 14 Moore's motion to supplement the record and request for evidentiary hearing on claim of ineffective assistance of trial counsel is DENIED.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 37 § 8.2 (2011) - Permitting Minors to Possess or Consume Alcohol
  • Okla. Stat. tit. 21 § 843.5 (2014) - Child Neglect
  • Okla. Stat. tit. 21 § 1289.13 (2012) - Transporting Loaded Firearm in Motor Vehicle
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Misdemeanor
  • Okla. Stat. tit. 12 § 2702 (2011) - Testimony by Experts
  • Okla. Stat. tit. 12 § 2403 (2011) - Exclusion of Relevant Evidence
  • Okla. Stat. tit. 12 § 2701 (2011) - Opinion Testimony by Lay Witnesses
  • Okla. Stat. tit. 57 § 138 (G) (2015) - Credit for Time Served

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
  • 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
  • Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148
  • Sanchez v. State, 2009 OK CR 31, I 104, 223 P.3d 980, 1013
  • Martinez v. State, 2016 OK CR 3, I 64, 371 P.3d 1100, 1115
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Neloms v. State, 2012 OK CR 7, I 33, 274 P.3d 161, 169
  • Holloway v. State, 2008 OK CR 14, I 8, 182 P.3d 845, 847
  • Shephard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602
  • Lloyd v. State, 1981 OK CR 5, I 8, 624 P.2d 74, 75
  • Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)
  • Howell v. State, 2006 OK CR 28, I 13, 138 P.3d 549, 556

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