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F-2018-198

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Ann Sykes v State Of Oklahoma

F-2018-198

Filed: Nov. 14, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

# Ann Sykes appealed her conviction for Abuse by Caretaker (Neglect) and Abuse by Caretaker (Financial Exploitation). Conviction and sentence of eight years, with three years suspended. No justices dissented.

Decision

The JUDGMENT and SENTENCE is AFFIRMED. The Application to Supplement the Appeal Record; in the alternative, Request for Evidentiary Hearing Pursuant to Rule 3.11 on Sixth Amendment Claim of Ineffective Assistance of 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 the delivery and filing of this decision.

Issues

  • Was there a violation of Appellant's rights to a fair trial due to inadmissible hearsay?
  • Did prejudicial testimony by witnesses lacking personal knowledge deprive Appellant of her rights to due process and a fair trial?
  • Did the trial court abuse its discretion by admitting inadmissible evidence?
  • Were Appellant's convictions for both Caretaker Neglect and Caretaker Financial Exploitation in violation of her right to be free from multiple punishments?
  • Did the felony Informations filed by the State fail to plead particular facts constituting the offenses charged?
  • Was Appellant's request for appointed counsel improperly denied, violating her right to counsel?
  • Did Appellant receive ineffective assistance of counsel?
  • Did cumulative error deprive Appellant of a fair trial?

Findings

  • the court did not err regarding inadmissible hearsay as any error was harmless beyond a reasonable doubt
  • the court did not err regarding prejudicial testimony as witnesses either had personal knowledge or were properly admissible
  • the court did not abuse its discretion in admitting opinion testimony regarding nutrition effects
  • there was no violation of double punishment under 21 O.S.2011, § 11 as the crimes were separate and distinct
  • the court found no error concerning the sufficiency of the information as the objection was waived
  • the trial court did not improperly deny the request for appointed counsel as it acted within its discretion
  • Appellant received effective assistance of counsel; claims of ineffectiveness were denied
  • cumulative error did not deprive Appellant of a fair trial

F-2018-198

Nov. 14, 2019

Ann Sykes

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Ann Sykes was convicted in a non-jury trial before the Honorable Lawrence W. Parish, District Judge, of Abuse by Caretaker (Neglect) (Count I) (21 O.S.2011, § 843.1) and Abuse by Caretaker (Financial Exploitation) (Count II) (21 O.S.2011, § 843.1) in the District Court of Okfuskee County, Case No. CF-2016-56. Appellant was sentenced to imprisonment for eight (8) years with the last three (3) years suspended in each count with said sentences ordered to run concurrently. It is from this judgment and sentence that Appellant appeals. Appellant raises the following propositions of error in support of her appeal:

I. Inadmissible hearsay violated Appellant’s rights to a fair trial and confrontation under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article II, § 20 of the Oklahoma Constitution.

II. Prejudicial testimony by witnesses who lacked personal knowledge of the information about which they testified deprived Appellant of her rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, and Article II, §§ 7 & 20 of the Oklahoma Constitution.

III. The trial court abused its discretion by admitting inadmissible evidence in violation of Appellant’s rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, and Article II, §§ 7 and 20 of the Oklahoma Constitution.

IV. Convictions and sentences for both Caretaker Neglect and Caretaker Financial Neglect violated Appellant’s right to be free from multiple punishment under 21 O.S. 2011, § 11.

V. The information filed by the State failed to plead particular facts constituting the offenses charged in violation of Appellant’s right to due process under the Fifth and Fourteenth Amendments to the U.S. Constitution, and Article II, § 7 of the Oklahoma Constitution.

VI. The trial court denied Appellant’s request for appointed counsel, violating her right to counsel, appointed counsel, and effective assistance of counsel trial under the Sixth, and Fourteenth Amendments to the U.S. Constitution, and Article II, § 20 of the Oklahoma Constitution.

VII. Appellant received ineffective assistance of counsel.

VIII. Cumulative error deprived Appellant of a fair trial.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

In Proposition I, Appellant contends she was denied her Sixth Amendment Confrontation rights under Crawford v. Washington by the prosecutor eliciting volumes of inadmissible hearsay testimony. Appellant challenges numerous statements in the testimony from four (4) of the State’s five (5) witnesses. Some of the testimony was met with contemporaneous objections, some was not. Testimony not objected to has been reviewed on appeal only for plain error. Mitchell v. State, 2016 OK CR 21, ¶ 29, 387 P.3d 934, 945. Under the test set forth in Simpson v. State, 1994 OK CR 40, ¶ 10, 26, 30, 876 P.2d 690, 694, 699, 701, this Court determines whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her 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. Id. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. See also Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121; Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395. In instances where contemporaneous objections were raised, we have reviewed the trial court’s ruling for an abuse of discretion. Marshall v. State, 2010 OK CR 8, ¶ 24, 232 P.3d 467, 474. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Id.

The Confrontation Clause of the Sixth Amendment precludes the admission of testimonial hearsay, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). For purposes of this case, the key word in this principle is hearsay. To constitute hearsay, testimony must be offered to prove the truth of the matter asserted. 12 O.S.2011, § 2801(3). The Hearsay Rule does not preclude testimony offered to show that a statement was made, or that certain actions resulted from a conversation with third persons. Greer v. State, 1988 OK CR 190, ¶ 4, 763 P.2d 106, 108 (overruled on other grounds, Mayes v. State, 1994 OK CR 44, 887 P.2d 1288). We have thoroughly reviewed Appellant’s claims of inadmissible hearsay. Much of the challenged testimony was not hearsay as it was not offered for the truth of the matter asserted. Rather, the testimony was presented to show the witnesses’ subsequent actions resulting from conversations or receipt of information from a third party. Certain hearsay statements were improperly admitted in some instances. However, any error in its admission was harmless beyond a reasonable doubt as Appellant has failed to show that the trial judge considered anything other than properly admitted evidence in reaching the verdict in this non-jury trial. We find no error, plain or otherwise in the challenged testimony. This proposition is denied.

In Proposition II, Appellant claims she was denied a fair trial by the admission of prejudicial testimony by witnesses who lacked personal knowledge of the information to which they testified. Title 12 O.S.2011, § 2602 provides [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. Some of the testimony that Appellant now challenges was met with objection at trial, other instances were not. This Court reviews the admission of evidence at trial for an abuse of discretion. Neloms v. State, 2012 OK CR 7, ¶ 25, 274 P.3d 161, 167. Where there is no objection, we review only for plain error. Mitchell, 2016 OK CR 21, ¶ 29, 387 P.3d at 945. Having thoroughly reviewed the challenged testimony, we find the State’s witnesses either testified based upon their own personal knowledge and observations or admitted they did not have any personal knowledge of the information they were relating. Appellant’s reliance on McCarty v. State, 1988 OK CR 271, 765 P.2d 1215 is not persuasive. In McCarty, the witness testified to findings from the autopsy. This Court found this testimony inadmissible hearsay under § 2602 as the witness admitted she was not at the autopsy and the medical examiner who performed the autopsy did not testify. McCarty is clearly distinguishable from the present case. Appellant’s argument that the witnesses’ reliance on the victim’s own statements was not sufficient is not persuasive. Evidence sufficient to lay a predicate of personal knowledge can come from the witnesses’ own observations and interactions. Our law does not require some evidence additional to the witnesses’ claim of personal knowledge. Appellant has failed to show any violation of § 2602. Finding no error, plain or otherwise, in the witnesses’ testimony, this proposition is denied.

In Proposition III, Appellant contends the trial court abused its discretion in admitting opinion testimony from Ms. Baker regarding the effects of a lack of nutrition on a person’s mental state. Despite the fact the prosecutor did not formally qualify Baker as an expert by requesting the court to recognize her as such, she was qualified, based upon her education and experience to testify to the effects of lack of proper nutrition on an individual. Baker’s testimony was based on reasonable inferences drawn from her specialized knowledge as a skilled and experienced social worker in Adult Protective Services. Welch v. State, 2000 OK CR 8, ¶ 22, 2 P.3d 356, 369. The trial court did not abuse its discretion in admitting Baker’s testimony in this non-jury trial. See Andrew v. State, 2007 OK CR 23, ¶ 23, 164 P.3d 176, 187. We also reject Appellant’s challenge to the admissibility of State’s Exhibit 22. The record shows that defense counsel stipulated to the admission of all of the State’s exhibits, including Exhibit 22. This stipulation has waived any error. See Pitman v. State, 1971 OK CR 189, ¶ 35, 487 P.2d 716, 721 (as a result of the defendant’s stipulation to the evidence, he could not be heard on appeal to complain to its admission). To the extent the exhibit may have lacked authentication, the information contained in the correspondence – about Appellant being the victim’s payee – was cumulative to her own testimony. Further, as this was a non-jury trial, Appellant has failed to rebut the presumption that the trial court considered only competent and admissible evidence in reaching its verdict. See Long v. State, 2003 OK CR 14, ¶ 4, 74 P.3d 105, 107 ([w]e presume, when a trial court operates as the trier of fact, that only competent and admissible evidence is considered in reaching a decision). This proposition is denied.

In Proposition IV, Appellant contends her convictions subjected her to multiple punishments in violation of 21 O.S.2011, § 11. No Section 11 objection was raised at trial. Therefore, our review is only for plain error under the standard set out above. Irwin v. State, 2018 OK CR 21, ¶ 4, 424 P.3d 675, 676; Simpson, 1994 OK CR 40, 876 P.2d 690. In Count I, Appellant was charged and convicted of the crime of Abuse by Caretaker (Neglect) under 21 O.S.2011, § 843.1 for failing to provide her son, a vulnerable adult, with adequate shelter, nutrition, health care, or clothing. In Count II, she was charged and convicted of the crime of Abuse by Caretaker (Financial Exploitation) under 21 O.S.2011, § 843.1 for negligently mismanaging the victim’s money and providing substandard care to her son despite the availability of adequate financial resources. The proper analysis of a Section 11 claim focuses on the relationship between the crimes. Sanders v. State, 2015 OK CR 11, ¶¶ 5-6, 358 P.3d 280, 283. If the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent. Id. If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma’s statutory ban on double punishment is not violated. Id. Here, the evidence shows Appellant’s failure to provide adequate shelter, nutrition, health care, or clothing to her son was a separate and distinct act from her misappropriation of the victim’s Social Security Disability Payments and other income. While the two offenses have some overlap in time, the convictions do not violate § 11 as the crimes do not arise out of one act. Finding no § 11 multiple punishment violation, we find no error and thus no plain error. This proposition is denied.

In Proposition V, Appellant contends the felony Informations failed to allege a crime under Oklahoma law and failed to allege facts constituting the offenses charged. Appellant did not raise this objection at trial. An objection to the sufficiency of the information cannot be raised for the first time on appeal unless some foundation was laid for the objection before the final judgment was rendered. Davis v. State, 1990 OK CR 20, ¶ 6, 792 P.2d 76, 80. Generally, when a defendant pleads to an information and proceeds to trial, he waives his right to attack the sufficiency of the information on appeal. Id. Here, Appellant has failed to properly challenge the felony information before the trial court and has therefore waived review of the issue on appeal. The felony informations will be reviewed under Appellant’s claim of ineffective assistance of counsel.

In Proposition VI, Appellant contends the trial court improperly denied her request for appointed counsel. She argues that the trial court’s failure to follow the procedures outlined in Smith v. State, 2007 OK CR 6, 155 P.3d 793 in denying her request for appointed counsel forced her to represent herself for a time and then retain the least expensive attorney available which led to her receiving ineffective assistance of counsel. The determination of a defendant’s indigency lies within the sole discretion of the trial court. Cleek v. State, 1987 OK CR 278, ¶ 4, 748 P.2d 39, 40, overruled on other grounds by Norton v. State, 2002 OK CR 10, 43 P.3d 404. An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law. Tucker v. State, 2016 OK CR 29, ¶ 25, 395 P.3d 1, 8. At the time of the court’s order, 22 O.S.Supp.2002, § 1355A(D) created a rebuttable presumption of non-indigency by the posting of bond. Smith, 2007 OK CR 6, ¶ 6, 155 P.3d at 795. See also 20 O.S.Supp.2002, § 55 (It is the intent of the Oklahoma Legislature that the payment of bail by a defendant or on behalf of a defendant shall be prima facie evidence that said defendant has funds to employ his own attorney and the Court shall then inquire into the financial status of the defendant prior to appointing an attorney paid for from the Court Fund). In Smith, this Court said that [i]n order to ensure that a defendant is not improperly denied counsel to which he or she is constitutionally entitled, the district court must make a record inquiring about the defendant’s financial status and reflecting that the defendant understands that the presumption of non-indigency created by the posting of bond is rebuttable and that he or she may still be entitled to court appointed counsel upon sufficient proof of indigent status. 2007 OK CR 6, ¶ 6, 155 P.3d at 795. The record shows that Appellant initially retained counsel, who represented her through Preliminary Hearing and arraignment. Counsel’s subsequent request to withdraw from the case, on the grounds of a breakdown in communications, was granted. Approximately one month later, Appellant filed an Application and Order for Appointed Counsel and Affidavit of Financial Inability to Employ Counsel. That request was denied without a hearing and with the handwritten notation defendant made bond. Appellant subsequently represented herself for approximately four (4) months before retaining counsel who appeared on Appellant’s behalf at trial. While a hearing on Appellant’s indigency is not reflected in the record, the record does show that the trial judge had before him detailed information regarding Appellant’s financial status. Appellant’s claim that her request for court appointed counsel was denied solely on the basis that she made bond is not supported by the record. Unlike Smith, the trial court’s rejection of her request for appointed counsel did not force Appellant to represent herself at trial. Appellant has failed to show that she was denied her right to counsel at any critical stage of the criminal proceedings against her. Further, she has failed to show any prejudice as she was represented at trial by counsel who provided constitutionally effective assistance. See Proposition VII. Accordingly, the trial court did not abuse its discretion in denying the request for court appointed counsel. This proposition is denied.

In Proposition VII, Appellant contends she was denied the effective assistance of counsel by counsel’s failure to object to inadmissible evidence, a Section 11 double punishment violation, and defective Informations. She also finds counsel ineffective for stipulating to the State’s Exhibits and for failing to investigate, call witnesses, or present evidence. We review Appellant’s claims under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Goode v. State, 2010 OK CR 10, ¶ 81, 236 P.3d 671, 686 citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. See also Marshall v. State, 2010 OK CR 8, ¶ 61, 232 P.3d 467, 481. In Strickland, the Supreme Court said there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Goode v. State, 2010 OK CR 10, ¶ 81, 236 P.3d 671, 686. To establish prejudice, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id., at 82, 236 P.3d at 686. See also Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 791-792, 178 L.Ed.2d 624 (2011). In this appeal, we have addressed Appellant’s allegations of inadmissible hearsay testimony (Proposition I), witnesses testifying despite a lack of personal knowledge (Proposition II), and admission of the State’s Exhibits (Proposition III). We found the challenged testimony and exhibits properly admissible, and no Section 11 violation. As none of Appellant’s allegations of error warrant relief, any contemporaneous objections raised to the above issues by trial counsel would have been overruled. We will not find trial counsel ineffective for failing to raise objections which would have been overruled. Eizember v. State, 2007 OK CR 29, ¶ 155, 164 P.3d 208, 244; Phillips v. State, 1999 OK CR 38, ¶ 104, 989 P.2d 1017, 1044. Regarding the felony informations, the question to be answered when looking at a felony Information is whether the Information gives the defendant notice of the charges against him and apprises him of what he must defend against at trial. Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986. See also Primeaux v. State, 2004 OK CR 16, ¶ 68, 88 P.3d 893, 906. The statutory language used in the felony Informations in this case is sufficient to charge a violation of § 843.1. Further, when combined with evidence presented at the Preliminary Hearing, the Felony Informations sufficiently placed Appellant on notice of the charges against her and what she must defend against. Any objections by trial counsel would have been overruled.

In support of her claim that counsel was ineffective for failing to investigate and call witnesses or present evidence, Appellant has filed contemporaneously with her appellate brief an Application to Supplement the Appeal Record; in the alternative, Request for Evidentiary Hearing Pursuant to Rule 3.11 on Sixth Amendment Claim of Ineffective Assistance of Counsel and supporting affidavits. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to utilize available evidence which could have been made available during the course of trial. Frederick v. State, 2017 OK CR 12, 166, 400 P.3d 786, 826-827 overruled on other grounds, Williamson v. State, 2018 OK CR 15, ¶ 51, n.1., 422 P.3d 752, 762, n. 1. Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Id. We have thoroughly reviewed Appellant’s application and accompanying affidavits and find that none of the information provided warrants supplementation of the record or remand for an evidentiary hearing. The information does not provide the required clear and convincing evidence that shows a strong possibility trial counsel was ineffective for failing to use the complained of evidence. Most of the information included in the affidavits is cumulative to Appellant’s testimony. Further, none of the information provided by Appellant is relevant to the time period of the charges on trial. Appellant was charged with neglecting the victim from March 9 through March 16, 2016. None of the information contained in the request for the evidentiary hearing covers that time period. Except for Appellant’s medical records, the information provided by Appellant covers the time period of 2014 through February 2016. While Appellant may have provided for the victim in previous years, she was not doing so in March 2016 when the victim was found living out of the SUV and begging for food and money on the streets of Boley. Trial counsel’s decision not to use the additional information contained in the application was viable trial strategy in this non-jury trial. Appellant has not shown that counsel’s performance fell below reasonable standards of professional conduct by the failure to use the information contained in the Application or that she suffered any prejudice by counsel’s conduct. The Application to Supplement the Appeal Record; in the alternative, Request for Evidentiary Hearing Pursuant to Rule 3.11 on Sixth Amendment Claim of Ineffective Assistance of Counsel is hereby denied.

Regarding the claim of ineffectiveness raised in the appellate brief concerning counsel’s failure to investigate and present the above evidence, we find Appellant has not shown trial counsel to be ineffective under the more rigorous federal standard set forth in Strickland for ineffective assistance of counsel. See Grissom v. State, 2011 OK CR 3, ¶ 81, 253 P.3d 969, 995 (citing Simpson v. State, 2010 OK CR 6, ¶ 53, 230 P.3d 888, 905-906). Therefore, his claim of ineffective assistance of counsel is denied.

In Proposition VIII, we find Appellant was not denied a fair trial by the accumulation of errors at trial. Any errors found in this case did not require relief, and when considered cumulatively, do not require reversal or modification of the sentence. See Sanders v. State, 2015 OK CR 11, ¶ 32, 258 P.3d 280, 288; Williams v. State, 2001 OK CR 9, ¶ 127, 22 P.3d 702, 732. This proposition is denied.

Accordingly, this appeal is denied.

DECISION

The JUDGMENT and SENTENCE is AFFIRMED. The Application to Supplement the Appeal Record; in the alternative, Request for Evidentiary Hearing Pursuant to Rule 3.11 on Sixth Amendment Claim of Ineffective Assistance of 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 the delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.2011, § 843.1
  2. 21 O.S. 2011, § 11
  3. 12 O.S.2011, § 2602
  4. 12 O.S.2011, § 2801(3)
  5. 22 O.S.Supp.2002, § 1355A(D)
  6. 20 O.S.Supp.2002, § 55
  7. 22 O.S.Supp.2018, § 1355 (A)
  8. Smith v. State, 2007 OK CR 6, 155 P.3d 793
  9. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)
  10. Mitchell v. State, 2016 OK CR 21, 387 P.3d 934
  11. Hogan v. State, 2006 OK CR 19, 139 P.3d 907
  12. Jackson v. State, 2016 OK CR 5, 371 P.3d 1120
  13. Levering v. State, 2013 OK CR 19, 315 P.3d 392
  14. Marshall v. State, 2010 OK CR 8, 232 P.3d 467
  15. Neloms v. State, 2012 OK CR 7, 274 P.3d 161
  16. McCarty v. State, 1988 OK CR 271, 765 P.2d 1215
  17. Goode v. State, 2010 OK CR 10, 236 P.3d 671
  18. Grissom v. State, 2011 OK CR 3, 253 P.3d 969
  19. Sanders v. State, 2015 OK CR 11, 258 P.3d 280
  20. Williams v. State, 2001 OK CR 9, 22 P.3d 702
  21. Frederick v. State, 2017 OK CR 12, 400 P.3d 786
  22. Eizember v. State, 2007 OK CR 29, 164 P.3d 208
  23. Parker v. State, 1996 OK CR 19, 917 P.2d 980
  24. Primeaux v. State, 2004 OK CR 16, 88 P.3d 893

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.1 - Abuse by Caretaker (Neglect and Financial Exploitation)
  • Okla. Stat. tit. 21 § 11 - Multiple Punishments
  • Okla. Stat. tit. 12 § 2602 - Personal Knowledge of Witness
  • Okla. Stat. tit. 12 § 2801 - Hearsay Rule
  • Okla. Stat. tit. 22 § 1355 - Indigency and Counsel
  • Okla. Stat. tit. 20 § 55 - Prima Facie Evidence of Financial Status

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:

No case citations found.

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