William G. Epperly v The State Of Oklahoma

F-2018-1144

Filed: Jan. 16, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

William G. Epperly appealed his conviction for Sexual Abuse of a Child. His conviction and sentence were upheld, giving him five years in prison, three years of supervision after, and a $100 fine. Judge Cindy H. Truong was in charge of the trial. In this decision, some judges agreed with the ruling, but one judge had different views.

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 delivery and filing of this decision.

Issues

• was there an abuse of discretion when the district court allowed the admission of hearsay evidence from Darla Courtright under the excited utterance exception?
• was there an abuse of discretion when the district court allowed the admission of hearsay evidence from Erin Sutphen under the excited utterance exception?
• was there an abuse of discretion when the district court allowed a witness to read text messages she had sent to the victim's mother?
• was there an abuse of discretion when the district court admitted irrelevant evidence?
• did the district court err when it allowed a witness to read directly from his report?
• did the district court err when it allowed evidence to be admitted that was irrelevant?
• should his sentence be modified by vacating the fine imposed in the written Judgment and Sentence and by granting credit for time served?
• did the district court err by failing to instruct the jury that, if found guilty, he would receive additional punishment in the form of sex offender registration?
• did an accumulation of error deprive him of a fair trial?

Findings

• The court did not err in admitting hearsay evidence from Darla Courtright under the excited utterance exception.
• The court did not err in admitting hearsay evidence from Erin Sutphen under the excited utterance exception.
• The court did not err in allowing a witness to read text messages she had sent to the victim's mother.
• The court did not err in admitting testimony about Tiffany Epperly’s demeanor and her reunification with Epperly.
• The court did not err in allowing a witness to read directly from his report.
• The court did not err in admitting evidence of an internet search on sex laws conducted by Epperly.
• This claim is moot as the amended Judgment and Sentence reflects the appropriate corrections.
• The court did not err by failing to instruct the jury regarding sex offender registration.
• The cumulative error claim is denied as there are no individual errors that merit relief.

F-2018-1144

Jan. 16, 2020

William G. Epperly

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant William G. Epperly appeals his Judgment and Sentence from the District Court of Oklahoma County, Case No. CF-2015-7392, for Sexual Abuse of a Child, in violation of 21 O.S.Supp.2014, § 843.5. The Honorable Cindy H. Truong, District Judge, presided over Epperly’s jury trial, sentenced him in open court in accordance with the jury’s verdict to five years imprisonment and awarded him credit for time served. Judge Truong ordered three years of post-imprisonment supervision and included a $100.00 fine on the written Judgment and Sentence document.

Epperly raises the following issues on appeal:
1. whether the district court abused its discretion when it allowed the admission of hearsay evidence from Darla Courtright under the excited utterance exception;
2. whether the district court abused its discretion when it allowed the admission of hearsay evidence from Erin Sutphen under the excited utterance exception;
3. whether the district court abused its discretion when it allowed a witness to read text messages she had sent to the victim’s mother;
4. whether the district court abused its discretion when it admitted irrelevant evidence;
5. whether the district court erred when it allowed a witness to read directly from his report;
6. whether the district court erred when it allowed evidence to be admitted that was irrelevant;
7. whether his sentence should be modified by vacating the fine imposed in the written Judgment and Sentence and by granting credit for time served;
8. whether the district court erred by failing to instruct the jury that, if found guilty, he would receive additional punishment in the form of sex offender registration; and
9. whether an accumulation of error deprived him of a fair trial.

We find relief is not required and affirm the Judgment and Sentence of the district court.

1. Epperly claims the district court erred in admitting, as an excited utterance, Tiffany Epperly’s statement to Darla Courtright, where she said she had walked in on her husband going down on her daughter S.B. Epperly preserved this claim for appellate review and we review the district court’s ruling for an abuse of discretion. Hammick v. State, 2019 OK CR 21, I 15, 449 P.3d 1272, 1277. This Court will find an abuse of discretion only when the district court’s decision was unreasonable or arbitrary and was made without proper consideration of the facts and law pertaining to the issue.

In Thompson v. State, 2019 OK CR 3, I 20, 438 P.3d 373, 379, cert. denied, U.S., 140 S.Ct. 171, 205 L.Ed.2d 84 (2019), we repeated the three conditions that must be met before a statement fits within the excited utterance hearsay exception: (1) a startling event or condition; (2) a statement relating to that startling event or condition; (3) made while the declarant is under the stress of excitement caused by the startling event or condition. We examine the timing and spontaneity of a purported excited utterance on a case-by-case basis. To be admissible under the hearsay exception, however, the excited utterance need not be made contemporaneously with the startling event so long as the declarant remains under the stress of excitement at the time he or she makes the statement.

Courtright described Tiffany Epperly’s emotional state as a result of witnessing her husband having oral sex with her teenaged daughter that amply showed she was under the stress of excitement caused by this startling event when she made statements about what she had seen. The district court did not abuse its discretion in admitting the statements Epperly’s wife made to Courtright under the excited utterance hearsay exception. This claim is denied.

2. Epperly claims the district court erred in admitting, as an excited utterance, Tiffany Epperly’s statement to Erin Sutphen that mirrored her statement to Courtright. He contends the statement falls outside the hearsay exception because it was made two hours after the alleged startling event. This claim also lacks merit. Given the proximity of the statement to the event, the statement’s spontaneity, and Tiffany Epperly’s emotional demeanor described by the witness, the district court did not err in admitting Tiffany Epperly’s statements to Sutphen as an excited utterance. This claim is denied.

3. Epperly complains that it was error to allow Sutphen to read text messages she sent to Tiffany Epperly because the messages constituted inadmissible hearsay. The statements challenged here do not meet the definition of hearsay because the text statements were not admitted to prove the truth of the matter asserted. The texts were introduced to call into question Tiffany Epperly’s credibility and trial testimony by showing that she initially believed that Epperly was guilty but soon changed her position, siding with him and supporting his claims of innocence. Because the statements were not hearsay, the district court did not abuse its discretion in admitting the texts. This claim is denied.

4. Epperly claims the district court erred in admitting Sutphen’s testimony concerning: (1) Tiffany Epperly’s changes in demeanor from being outgoing to more private; (2) Tiffany Epperly’s reunification with Epperly; and (3) Tiffany Epperly’s feelings of being judged and grouped into the same category as Epperly. The court did not abuse its discretion in admitting the testimony. This claim is denied.

5. Epperly contends the district court erred by allowing former Edmond Police Officer Matthew Richardson, now an active military officer, to read from his police report. The statement in the report was not inadmissible hearsay because it was not offered for the truth of the matter asserted, but to impeach Tiffany Epperly’s trial testimony. Because the district court did not err in admitting the challenged evidence, this claim is denied.

6. Epperly claims the district court erred in admitting evidence that he conducted an internet search of the sex laws in Oklahoma because the evidence was irrelevant. Epperly can show no error, plain or otherwise, in the admission of the results of the detective’s forensic exam of his laptop. Evidence of Epperly’s internet search was susceptible to different interpretations. Viewed through that lens, the evidence, when taken with the prosecution’s other evidence, tended to establish a material fact in issue, making the evidence relevant. Because the evidence was not erroneously admitted, this claim must be denied.

7. Epperly argues his written Judgment and Sentence should be corrected to reflect the district court’s oral pronouncement of punishment imposed at the formal sentencing hearing. The amended Judgment and Sentence has since been made a part of the record on appeal and the sentence reflected on the amended Judgment and Sentence conforms to the district court’s oral pronouncement of punishment. Because any error has been corrected, this claim is moot.

8. Epperly argues relief is required because the district court failed to instruct the jury that, if convicted, he would have to register as a sex offender. Based on Reed, he has failed to show the existence of an error and this claim is denied.

9. Epperly claims that even if no individual error in his case merits relief, the cumulative effect of the errors committed requires reversal of his conviction for a new trial, dismissal, or other favorable relief. There are no errors, considered individually or cumulatively, that merit relief in this case. 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. (2020), 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, Epperly must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.
2. 12 O.S.2011, § 2803(2).
3. Hammick v. State, 2019 OK CR 21, I 15, 449 P.3d 1272, 1277.
4. Thompson v. State, 2019 OK CR 3, I 20, 438 P.3d 373, 379, cert. denied, U.S. , 140 S.Ct. 171, 205 L.Ed.2d 84 (2019).
5. Conley U. State, 1983 OK CR 133, I 7, 669 P.2d 304, 307.
6. Miller v. State, 2004 OK CR 29, IT 50, 98 P.3d 738, 748.
7. Bramlett U. State, 2018 OK CR 19, I 16, 422 P.3d 788, 794.
8. Martinez v. State, 2016 OK CR 3, I 37, 371 P.3d 1100, 1111.
9. Vanderpool U. State, 2018 OK CR 39, I 34, 434 P.3d 318, 326.
10. 12 O.S.2011, § 2612.
11. 12 O.S.2011, § 2613(B).
12. Hawkins U. State, 1989 OK CR 72, I 18, 782 P.2d 139, 142.
13. Hogan v. State, 2006 OK CR 19, "I 38, 139 P.3d 907, 923.
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, 446 P.3d 1248, 1263.

Oklahoma Statutes citations:

• 21 O.S. Supp. 2014 § 843.5 - Sexual Abuse of a Child
• 12 O.S. 2011 § 2803(2) - Hearsay Exceptions
• 12 O.S. 2011 § 2801 - Definition of Hearsay
• 12 O.S. 2011 § 2612 - Refreshing Memory
• 12 O.S. 2011 § 2613(B) - Prior Inconsistent Statements

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 17 U.S.C. § 107 - Limitations on Exclusive Rights: Fair Use

Other citations:

No other rule citations found.

Case citations:

• Hammick v. State, 2019 OK CR 21, I 15, 449 P.3d 1272, 1277
• Thompson v. State, 2019 OK CR 3, I 20, 438 P.3d 373, 379, cert. denied, U.S., 140 S.Ct. 171, 205 L.Ed.2d 84 (2019)
• Bramlett v. State, 2018 OK CR 19, I 16, 422 P.3d 788, 794
• Martinez v. State, 2016 OK CR 3, I 37, 371 P.3d 1100, 1111
• Vanderpool v. State, 2018 OK CR 39, I 34, 434 P.3d 318, 326
• Miller v. State, 2004 OK CR 29, I 50, 98 P.3d 738, 748
• Conley v. State, 1983 OK CR 133, I 7, 669 P.2d 304, 307
• Hawkins v. State, 1989 OK CR 72, I 18, 782 P.2d 139, 142
• Reed v. State, 2016 OK CR 10, II 14-19, 373 P.3d 118, 122-23
• Tafolla v. State, 2019 OK CR 15, I 45, 446 P.3d 1248, 1263
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923