Randall Duane Throneberry v State Of Oklahoma

F-2017-963

Filed: Jan. 16, 2020

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Randall Duane Throneberry appealed his conviction for Lewd Acts with a Child Under 16. Conviction and sentence were for life imprisonment without the possibility of parole. Judge Kuehn dissented. In this case, Throneberry was found guilty by a jury after evidence showed he inappropriately touched an eight-year-old girl, R.F. This happened when he was staying overnight at her home. R.F. woke up to find him doing inappropriate things to her multiple times. After telling her mother about it, the police were called. The court reviewed several points raised by Throneberry, including claims about witness testimony and sentencing procedures. However, the court found no significant mistakes were made during the trial and upheld the life sentence. The judges concluded that his actions were serious and warranted such a punishment, especially given his history of similar offenses.

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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there improper victim impact evidence admitted during the trial?
• Did the trial court err in admitting testimony regarding prior sexual abuse as propensity evidence?
• Should Throneberry's sentence been enhanced pursuant to the statute under which he was charged instead of the recidivism statute?
• Did the jury instructions violate due process by precluding the jury from determining punishment?
• Is Throneberry's sentence of life without parole grossly disproportionate to the crime committed?
• Does Throneberry's sentence violate the Eighth Amendment as excessive?

Findings

• the court did not err regarding the admission of Gloria Faudoa's testimony as it was relevant and did not constitute improper victim impact evidence
• the court did not err in admitting D.W.'s testimony regarding Throneberry's sexual abuse of her as the evidence was deemed admissible and not prejudicial
• the court did not err in enhancing Throneberry's sentence as the enhancement was in accordance with the relevant statutory provisions
• the court did not err in the jury instruction related to Throneberry's punishment as it was consistent with statutory requirements
• the court determined that Throneberry's life without parole sentence is not grossly disproportionate and does not violate the Eighth Amendment
• the court affirmed the Judgment and Sentence

F-2017-963

Jan. 16, 2020

Randall Duane Throneberry

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant, Randall Duane Throneberry, was tried by a jury and convicted in Oklahoma County District Court, Case No. CF-2015-6679, of Lewd Acts with a Child Under 16, in violation of 21 O.S.Supp.2013, § 1123(A), After Former Conviction of a Felony (Lewd Acts with a Child). In accordance with the jury’s recommendation, the Honorable Timothy R. Henderson, District Judge, sentenced Throneberry to life imprisonment without the possibility of parole.¹

¹ Throneberry’s trial was bifurcated. During the sentencing phase, the jury found that Throneberry had a prior lewd molestation conviction. As a result, as discussed infra in Proposition II, life without the possibility of parole was the only sentencing option available to the jury. 21 O.S.2011, § 51.1a. Judge Henderson also imposed various costs and fees. Throneberry now appeals.

FACTS
In August 2015, Gloria Faudoa and her daughter, R.F., who was eight years old at the time, were living with Ms. Faudoa’s niece, Elizabeth (Missy) Wiyninger, at 231 Southeast 46th Street in Oklahoma City. David Menchaca, Ms. Faudoa’s uncle and Missy’s father, his wife Lorene Menchaca, and Missy’s children also lived at the residence. Around the third week of August 2015, Throneberry, who was a friend of Mr. Menchaca, spent the weekend at Missy’s residence because he wanted to drink alcohol. Throneberry slept in the living room on the couch both nights that he stayed there. On his second night at the house, R.F. and her mother also slept in the living room—R.F. on a loveseat and her mother in a recliner. In addition, three other children staying at the house that night slept on the living room floor on a pallet.

That night, after R.F. and the other children had gone to sleep in the living room, Ms. Menchaca walked into the living room and noticed Throneberry standing by the loveseat where R.F. was sleeping. He had his hand under R.F.’s blanket. Throneberry claimed to be looking for a DVD, and Ms. Menchaca warned him to stay away from the children. Ms. Menchaca testified that R.F.’s mother was asleep in the recliner when this took place.

The next morning, August 16, 2015, R.F. awoke to find Throneberry standing at the end of the loveseat by her feet. R.F. fell back asleep and when she awoke the second time, Throneberry was still standing by the loveseat. R.F. again fell asleep, but when she awoke the third time, her leg was raised. R.F. tried to lower it, but Throneberry raised it back up. This happened four separate times. Throneberry then put his hand inside R.F.’s shorts and placed his fingers inside her vagina. Fearful Throneberry would hurt her, R.F. initially pretended to be asleep. However, wanting him to stop, R.F. began moving around and managed to roll over to her side. Throneberry stopped when this occurred and ran to the bathroom. R.F. quickly got up and retrieved her iPad after Throneberry went into the bathroom. When he came out of the bathroom, Throneberry asked R.F. if she was playing her favorite game and then asked if she wanted some gum. R.F. answered affirmatively and then tried to wake her mother by asking her to start the water in the shower. R.F. was hoping her mother would accompany her to the bathroom so R.F. could lock the bathroom door and tell her what happened. However, her mother, a heavy sleeper due to taking pain medication and a sleeping pill, directed R.F. to turn the water on herself. After R.F. took a shower, she returned to the living room and Throneberry was gone. R.F.’s mother told her that Throneberry had gone to church. R.F. then told her mother what Throneberry had done to her. Missy and the Menchacas were awakened, and the police were called. R.F. was taken to Children’s Hospital later that morning where she was examined by a member of the child protection team. She was subsequently interviewed by Kara Marts, a forensic interviewer at the CARE Center, on August 24, 2015.

ANALYSIS
Proposition I. Throneberry challenges the testimony of Gloria Faudoa concerning her daughter R.F.’s demeanor and mental condition after the alleged sexual abuse occurred. Throneberry argues this evidence amounted to improper victim impact evidence. The admission of evidence lies within the sound discretion of the trial court and when the issue is properly preserved for appellate review we will not disturb the trial court’s decision absent an abuse of discretion. Coddington v. State, 2011 OK CR 17, ¶ 65, 254 P.3d 684, 710. The record shows, however, that Throneberry failed to object at trial to the now challenged testimony. He has thus waived review of this alleged error for all but plain error. Williamson v. State, 2018 OK CR 15, ¶ 12, 422 P.3d 752, 757; Davis v. State, 2018 OK CR 7, ¶ 14, 419 P.3d 271, 278. To be entitled to relief under the plain error doctrine, [Throneberry] must show the existence of an actual error (i.e., deviation from a legal rule), that is plain or obvious, and that affects his substantial rights, meaning the error affected the outcome of the proceeding. Musonda v. State, 2019 OK CR 1, ¶ 6, 435 P.3d 694, 696. If these elements are met, plain error will only be corrected if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id.; Baird v. State, 2017 OK CR 16, ¶ 25, 400 P.3d 875, 883.

Upon review, we find no error, plain or otherwise, surrounding the admission of the challenged testimony of Faudoa. Evidence concerning changes in R.F.’s demeanor and mental condition after the sexual abuse was relevant to counter the defense’s theory that R.F. was lying and supported R.F.’s credibility. See Frederick v. State, 2001 OK CR 34, ¶ 94, 37 P.3d 908, 934. Moreover, the relevance of this evidence was not substantially outweighed by the danger of unfair prejudice. 12 O.S.2011, §§ 2401, 2403. Proposition I is thus denied.

Proposition II. Throneberry challenges the trial court’s admission of D.W.’s testimony regarding Throneberry’s sexual abuse of her when she was seven years old. The trial court admitted D.W.’s testimony as sexual propensity evidence pursuant to 12 O.S.2011, § 2414. Throneberry asserts the trial court’s admission of D.W.’s testimony was more prejudicial than probative. Throneberry specifically contends the challenged propensity evidence was more prejudicial than probative because (1) the circumstances of D.W.’s abuse were different from those of R.F.; (2) D.W.’s testimony was presented prior to that of R.F.; and (3) the presentation of D.W.’s testimony precluded the jury from finding in the sentencing phase of trial that Throneberry had no prior lewd molestation conviction. Throneberry’s failure to make an objection during trial to the challenged propensity evidence limits our review to that of only plain error. Brewer v. State, 2019 OK CR 23, ¶ 4, 450 P.3d 969, 971. Throneberry fails to meet his heavy burden of demonstrating plain error on appeal.

Title 12 O.S.2011, § 2414 provides for admission of propensity evidence in child molestation cases. Propensity evidence is admissible, and may be considered for its bearing on any matter to which it is relevant. While Appellant objected to D.W.’s testimony at the close of the pre-trial hearing regarding its admissibility, he failed to renew his objection to the evidence at the time it was presented to the jury.

In the present case, the trial court properly held a pre-trial hearing to address the admissibility of D.W.’s testimony pursuant to 12 O.S.2011, § 2414. D.W. testified at the hearing. In addition, the State introduced evidence of Throneberry’s lewd molestation conviction that stemmed from his sexual abuse of D.W. At the conclusion of the hearing, the trial court found Throneberry’s prior sexual abuse of D.W. had been shown by clear and convincing evidence. The trial court further found D.W.’s testimony was very probative and the probative value of admitting this evidence [was] not substantially outweighed by the danger of unfair prejudice. In addition, the trial court found that D.W.’s testimony was admissible pursuant to 12 O.S.2011, § 2404(B) as the evidence show[ed] both a common scheme and would show an identity relationship[.] Upon review, we find the trial court committed no error, plain or otherwise, in finding the challenged propensity evidence admissible based on the clear and convincing evidence set forth by the State.

Proposition III. Throneberry challenges the enhancement of his sentence pursuant to 21 O.S.2011, § 51.1a. He argues on appeal that his sentence should have been enhanced pursuant to 21 O.S.Supp.2013, § 1123(A)—the statutory provision under which he was charged. Throneberry did not raise this specific legal ground in his argument to the trial court. Our review on appeal is thus limited to plain error. We find no error, plain or otherwise, occurred.

Section 51.1a, enacted in 2002, provides: Any person convicted of rape in the first degree, forcible sodomy, lewd molestation or sexual abuse of a child after having been convicted of either rape in the first degree, forcible sodomy, lewd molestation or sexual abuse of a child shall be sentenced to life without parole. By contrast, Section 1123(A), as amended in 2013, 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.

The phrase [e]xcept as provided in Section 51.1a of this title was added in 2013, and specifically directs the State to Section 51.1a for punishment enhancement in cases where the defendant is a repeat violator of Section 1123(A). There can never be a situation where Section 51.1a does not apply if a defendant’s current and prior convictions are both for the lewd and/or indecent acts proscribed by Section 1123(A). Thus, with regard to these offenses, the enhancement provisions of Sections 1123(A) and 51.1a are irreconcilable, and the later-enacted statute controls. 75 O.S.2011, § 22; State v. District Court of Oklahoma County, 2007 OK CR 3, ¶ 18, 154 P.3d 84, 87-88.

The 2013 amendment to Section 1123 was the latest enactment and expresses the Legislature’s current intention, i.e., that punishment enhancement for repeat offenders of Section 1123 be pursuant to Section 51.1a. Throneberry’s sentence was thus properly enhanced. Proposition III is denied.

Proposition IV. At the conclusion of the sentencing stage of trial, the jury was instructed that Throneberry’s punishment must be set at life without the possibility of parole if they found Throneberry had previously been convicted of lewd molestation. The jury was further instructed that they could impose a fine not exceeding $10,000. Throneberry objected to this instruction arguing that Section 51.1a violates due process as it precludes the jury from determining punishment in violation of Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227 (1980). Throneberry reasserts this claim on appeal. Throneberry’s reliance on Hicks is misplaced.

Sentencing in Oklahoma is a matter of statute. Oklahoma’s statutory right to jury sentencing lies in 22 O.S.2011, § 926.1. The decision whether to establish, expand, or limit such a statutorily created right is purely within the authority of the Legislature. It is only when such a right has been established by the Legislature, and then is subsequently abrogated in an improper manner by state officials, that federal due process is offended.

As to the punishment for a second conviction under 21 O.S.Supp.2013, § 1123, the Legislature, by directing punishment enhancement pursuant to 21 O.S.2011, § 51.1a, has confined the scope of punishment to a sentence of life without parole. And in doing so, the Legislature decidedly limited Throneberry’s statutory right to be sentenced by a jury. Therefore, as Throneberry’s statutory right to jury sentencing was not abrogated in any manner, no due process violation occurred. Proposition IV is denied.

Propositions V and VI. In his final two propositions of error, Throneberry further challenges his mandatory life without parole sentence arguing his sentence violates the Eighth Amendment as it is: (1) grossly disproportionate to the crime that was committed; and (2) excessive.

The concept of proportionality is central to both Throneberry’s claims. In Proposition V, Throneberry specifically argues Section 51.1a erroneously removed all discretion from the jury and the court to set a proportionate sentence considering the facts and the circumstances of each particular case. He thus contends this lack of discretion renders his sentence unconstitutional. He expands upon this argument further in Proposition VI, arguing that Oklahoma’s shock the conscience standard falls short of the proportionality review guaranteed by the Eighth Amendment.

This Court has not previously addressed a claim that Section 51.1a violates the Eighth Amendment. For the reasons set forth below, we find Throneberry’s mandatory life without parole sentence pursuant to Section 51.1a is not violative of the Eighth Amendment. While his sentence is severe, it is not grossly disproportionate to the crime. Nor does it shock the conscience of this Court.

The Eighth Amendment contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences. Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003). It forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Harmelin v. Michigan, 501 U.S. 957, 996-997, 111 S. Ct. 2680 (1991).

This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks our conscience.

Having found no error, plain or otherwise, occurred, Propositions V and VI are 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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

OPINION BY: HUDSON, J.

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Footnotes:

1. Throneberry's trial was bifurcated. During the sentencing phase, the jury found that Throneberry had a prior lewd molestation conviction. As a result, as discussed infrain Proposition II, life without the possibility of parole was the only sentencing option available to the jury. 21 O.S.2011, § 51.1a.
2. Ms. Menchaca testified this took place around 11 p.m. Ms. Faudoa, however, testified that she stayed up until three or four in the morning talking with Throneberry.
3. While Appellant objected to D.W.'s testimony at the close of the pre-trial hearing regarding its admissibility, he failed to renew his objection to the evidence at the time it was presented to the jury. See Lowery U. State, 2008 OK CR 26, II 9, 192 P.3d 1264, 1268 (reviewing for plain error where defense counsel challenged the evidence during a hearing but "failed to renew his objection at the time it was actually offered at trial").
4. The trial court additionally found D.W.'s testimony was admissible pursuant to 12 O.S.2011, § 2404(B) as other crimes evidence showing a common scheme.
5. Title 12 O.S.2011, § 2414 provides for admission of propensity evidence in child molestation cases. Propensity evidence "is admissible, and may be considered for its bearing on any matter to which it is relevant."
6. Notably, D.W. never testified that Throneberry was charged with any crime or that he had a felony conviction stemming from his abuse of her. Moreover, the jury was properly instructed pursuant to OUJI-CR (2d) No. 10-21 that "[t]he law presumes that the defendant has NOT been previously convicted" and that the jury "may consider the previous conviction only if the State has proved [the alleged conviction] beyond a reasonable doubt." (O.R. 188).
7. Section 22 provides: If the provisions of any code, title, chapter or article conflict with or contravene the provisions of any former code, title, chapter or article, the provisions of the latter code, title, chapter or article must prevail as to all matter and questions arising thereunder out of the same subject matter.
8. Title 22 O.S.2011, § 926.1 provides: In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.
9. The entire penalty provision in section 1123(A) reads as follows, with the language most pertinent to this discussion in boldface type: Any person convicted of any violation of this subsection shall be punished by imprisonment in the custody of the Department of Corrections for not less than three (3) years nor more than twenty (20) years, except when the child is under twelve (12) years of age at the time the offense is committed, and in such case the person shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections for not less than twenty-five (25) years. The provisions of this subsection shall not apply unless the accused is at least three (3) years older than the victim, except when accomplished by the use of force or fear. 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.
10. The specific "violation of this subsection" in this last sentence therefore means the crime of lewd or indecent proposal, when committed after two or more convictions of any combination of first degree rape, forcible sodomy, or sexual abuse; and is here made punishable by "life or life without parole."

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2013) - Lewd Acts with a Child Under 16
• Okla. Stat. tit. 21 § 51.1a (2011) - Sentencing enhancement for repeat offenders
• Okla. Stat. tit. 12 § 2401 (2011) - General relevance of evidence
• Okla. Stat. tit. 12 § 2403 (2011) - Exclusion of relevant evidence on grounds of prejudice
• Okla. Stat. tit. 12 § 2414 (2011) - Admission of propensity evidence in child molestation cases
• Okla. Stat. tit. 22 § 926.1 (2011) - Right to jury sentencing
• Okla. Stat. tit. 75 § 22 (2011) - Rule on conflict between statutes

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, 2011 OK CR 17, II 65, 254 P.3d 684, 710.
• Williamson v. State, 2018 OK CR 15, II 12, 422 P.3d 752, 757.
• Davis v. State, 2018 OK CR 7, II 14, 419 P.3d 271, 278.
• Musonda v. State, 2019 OK CR 1, II 6, 435 P.3d 694, 696.
• Frederick v. State, 2001 OK CR 34, II 94, 37 P.3d 908, 934.
• Brewer v. State, 2019 OK CR 23, II 4, 450 P.3d 969, 971.
• Lamar v. State, 2018 OK CR 8, II 41, 419 P.3d 283, 294.
• Horn v. State, 2009 OK CR 7, II 40, 204 P.3d 777, 786.
• Lowery v. State, 2008 OK CR 26, II 9, 192 P.3d 1264, 1268.
• Sanders v. State, 2015 OK CR 11, II 15, 358 P.3d 280, 285.
• State v. District Court of Oklahoma County, 2007 OK CR 3, II 18, 154 P.3d 84, 87-88.
• Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227 (1980).
• Swart v. State, 1986 OK CR 92, II 7, 720 P.2d 1265, 1268.
• Luna v. State, 2016 OK CR 27, II 17, 387 P.3d 956, 961.
• Clemons v. Mississippi, 494 U.S. 738, 746, 110 S. Ct. 1441, 1447 (1990).
• Dodd v. State, 1994 OK CR 51, II 12-17, 879 P.2d 822, 826.
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149.
• Applegate v. State, 1995 OK CR 49, II 9, 904 P.2d 130, 134.
• Maxwell v. State, 1989 OK CR 22, II 11, 775 P.2d 818, 820.
• Mckune v. Lile, 536 U.S. 24, 32, 122 S. Ct. 2017, 2024 (2002).
• Rummel v. Estelle, 445 U.S. 263, 274, 100 S. Ct. 1133, 1139 (1980).