Anthony Douglass Crisel, Jr. v State Of Oklahoma

F-2018-289

Filed: May 16, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Anthony Douglass Crisel, Jr. appealed his conviction for Lewd or Indecent Acts with a Child. Conviction and sentence: six years in prison. Judge Kuehn dissented.

Decision

The JUDGMENT and SENTENCE is AFFIRMED. The Motion to Supplement the Record on Appeal and for Evidentiary Hearing 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 ineffective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments?
• Did counsel's failure to object to the testimony of D.V. constitute ineffective assistance?
• Did counsel's failure to present testimony from C.C., the victim's brother, constitute ineffective assistance?
• Did counsel's failure to object to the testimony of expert witness Michelle Amerson constitute ineffective assistance?
• Was the Appellant denied an evidentiary hearing regarding claims of ineffective assistance of counsel?
• Did Appellant demonstrate prejudice resulting from counsel's alleged ineffective assistance?

Findings

• Appellant was not denied the effective assistance of counsel.
• The Motion to Supplement the Record on Appeal and for Evidentiary Hearing is denied.
• The judgment and sentence is affirmed.

F-2018-289

May 16, 2019

Anthony Douglass Crisel, Jr.

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Anthony Douglass Crisel, Jr., was tried by jury and convicted of Lewd or Indecent Acts with a Child (21 O.S.Supp.2010, § 1123(A)(2)) in the District Court of Comanche County, Case No. CF-2016-514. The jury recommended as punishment six (6) years in prison and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

1 Appellant will be required to serve eighty-five percent (85%) of his sentence before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1.

1 Appellant raises the following proposition of error in support of his appeal:

I. Appellant received ineffective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments.

After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we find that under the law and the evidence no relief is warranted. In his sole proposition of error, Appellant contends he was denied the effective assistance of counsel in three specific areas: 1) counsel’s failure to object to the testimony of D.V.; 2) the failure to present testimony from C.C., the older brother of the victim, A.C.; and 3) counsel’s failure to object to the testimony of expert witness Michelle Amerson.

Appellant has also filed a motion to supplement the record on appeal and for evidentiary hearing on sixth amendment grounds. 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, I 81, 236 P.3d 671, 686, citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. See also Sanders U. State, 2015 OK CR 11, I 29, 358 P.3d 280, 287.

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, 2010 OK CR 10, I 81, 236 P.3d at 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 I 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).

Affidavits supporting the first two instances of alleged ineffectiveness are included in the contemporaneously filed Motion of the Appellant to Supplement the Record on Appeal and for Evidentiary Hearing on his Claim of Ineffective Assistance of Trial Counsel. 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, IT 166, 400 P.3d 786, 826-827 overruled on other grounds, Williams v. State, 2018 OK CR 15, I 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. An affidavit from Appellant’s father and an unverified copy of a portion of a police report do not support Appellant’s claim that counsel was ineffective for failing to object to D.V.’s testimony. Information contained in these documents that allegations of D.V., made against Appellant several years prior to the current case, were investigated but not prosecuted was admitted through other evidence and was sufficiently before the jury. The remainder of Mr. Crisel, Sr.’s, affidavit contains hearsay information insufficient to meet the clear and convincing standard required for an evidentiary hearing. See Frederick, 2017 OK CR 12, I 166, 400 P.3d at 826-27.

To support his request for supplementation of the record and an evidentiary hearing regarding the claim of counsel’s ineffectiveness for failing to present testimony from the victim’s brother, C.C., Appellant offers signed affidavits from his grandfather, Charles Crisel, and his aunt, Lacey Marie Crisel. The hearsay statements allegedly made by C.C. contained in these affidavits are not sufficient to meet the clear and convincing standard required for an evidentiary hearing. Appellant does not assert a hearsay exception under which the statements would be admitted and no such reason is apparent from the record. Hearsay statements that do not fall within a firmly rooted hearsay exception are presumptively unreliable. Mitchell v. State, 2005 OK CR 15, I 33, 120 P.3d 1196, 1206; 12 O.S. 2011, § 2802. None of the information provided by Appellant warrants an evidentiary hearing as it does not provide the clear and convincing evidence that shows a strong possibility trial counsel was ineffective for failing to use the complained of evidence. In other words, the information does not adequately show that counsel’s conduct fell below reasonable standards of conduct, or that the failure to utilize this evidence prejudiced Appellant. The request for an evidentiary hearing and supplementation of the record is denied.

Reviewing Appellant’s claims in the appellate brief, he has not shown trial counsel to be ineffective under the more rigorous federal standard set forth in Strickland. The record shows defense counsel attempted to exclude D.V.’s testimony but was unsuccessful. His attempts to therefore limit and impeach her testimony were reasonable strategic decisions. Appellant has also failed to show any prejudice by counsel’s performance as he has failed to show that any further objections to D.V.’s testimony would have resulted in exclusion of the evidence, and that if D.V.’s testimony had been excluded, the result of his trial would have been different.

Regarding his claim of counsel ineffectiveness for failing to present testimony from C.C., A.C.’s older brother, the record indicates that counsel’s decision not to call C.C. to the witness stand has all the hallmarks of a strategic decision. Jones v. State, 2009 OK CR 1, I 91, 201 P.3d 869, 891. Numerous strategic reasons exist for not calling C.C. to the witness stand. This Court will not second-guess matters concerning trial strategy if there is a reasonable basis for counsel’s actions. Roberts v. State, 1996 OK CR 7, I 20, 910 P.2d 1071, 1080.

Further, Appellant has failed to show any prejudice from C.C.’s absence on the witness stand as he has provided nothing showing that C.C. would have testified favorably for the defense or that the outcome of the trial would have been different if C.C. had testified. Contrary to Appellant’s claim, the record shows trial counsel sufficiently contested the testimony of the State’s expert, Ms. Amerson through cross-examination. That appellate counsel seemingly would have more vigorously challenged the witness’s credentials as an expert is not the standard of review. [T]he fact that another lawyer would have followed a different course during the trial is not grounds for branding the appointed attorney with the opprobrium of ineffectiveness, or infidelity, or incompetency. Absent a showing of incompetence, the Appellant is bound by the decisions of his counsel and mistakes in tactic and trial strategy do not provide grounds for subsequent attack. Lee U. State, 2018 OK CR 14, I 15, 422 P.3d 782, 786-787 citing Shultz v. State, 1991 OK CR 57, I 9, 811 P.2d 1322, 1327.

We will not find counsel ineffective for pursuing strategies different than what appellate counsel might have followed.

Counsel must act as an advocate and subject the State’s case to adversarial testing. Malicoat v. State, 2000 OK CR 1, II 48, 992 P.2d 383, 405. However, Appellant has the burden to overcome the strong presumption that counsel’s conduct fell within a wide range of reasonable professional assistance and equaled sound trial strategy. Id. Appellant has failed to overcome this presumption. After thoroughly reviewing the record, and Appellant’s allegations of ineffectiveness, we have considered counsel’s challenged conduct on the facts of the case as viewed at the time and have asked if the conduct was professionally unreasonable and, if so, whether the error affected the jury’s judgment. Warner v. State, 2006 OK CR 40, I 206, 144 P.3d 838, 893, overruled on other grounds, Taylor v State, 2018 OK CR 6, 419 P.3d 265. Defense counsel’s performance in this case did not so undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id, quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

Appellant has failed to meet his burden of showing a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different. Appellant was not denied the effective assistance of counsel.

This appeal is denied.

DECISION

The JUDGMENT and SENTENCE is AFFIRMED. The Motion to Supplement the Record on Appeal and for Evidentiary Hearing 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.

AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY

THE HONORABLE GERALD NEUWIRTH, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

MARK BAILEY
1001 N.W. 63RD ST., STE. 280
OKLAHOMA CITY, OK 73116
COUNSEL FOR DEFENDANT

JAMES L. HANKINS
929 N.W. 164TH ST.
EDMOND, OK 73013
COUNSEL FOR APPELLANT

FRED C. SMITH
DISTRICT ATTORNEY

MIKE HUNTER
ATTY GENERAL OF OKLA

KYLE CABELKA
JENNIFER J. DICKSON
ASST. DISTRICT ATTORNEY
COMANCHE CO. COURTHOUSE
315 S.W. 5TH ST., STE. 504
LAWTON, OK 73501
COUNSEL FOR THE STATE

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Footnotes:

1. 21 O.S.Supp.2010, § 1123(A)(2)
2. 21 O.S.2011, § 13.1
3. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
4. Goode v. State, 2010 OK CR 10, I 81, 236 P.3d 671, 686
5. Sanders v. State, 2015 OK CR 11, I 29, 358 P.3d 280, 287
6. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 791-792, 178 L.Ed.2d 624 (2011)
7. Frederick v. State, 2017 OK CR 12, I 166, 400 P.3d 786, 826-827
8. Williams v. State, 2018 OK CR 15, I 51, n. 1, 422 P.3d 752, 762, n. 1
9. Mitchell v. State, 2005 OK CR 15, I 33, 120 P.3d 1196, 1206
10. 12 O.S. 2011, § 2802
11. Jones v. State, 2009 OK CR 1, I 91, 201 P.3d 869, 891
12. Roberts v. State, 1996 OK CR 7, I 20, 910 P.2d 1071, 1080
13. Lee v. State, 2018 OK CR 14, I 15, 422 P.3d 782, 786-787
14. Davenport v. State, 1991 OK CR 14, 806 P.2d 655
15. Malicoat v. State, 2000 OK CR 1, II 48, 992 P.2d 383, 405
16. Warner v. State, 2006 OK CR 40, I 206, 144 P.3d 838, 893
17. Taylor v. State, 2018 OK CR 6, 419 P.3d 265
18. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019)
19. Rule 3.5(A)(5), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2019)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123(A)(2) - Lewd or Indecent Acts with a Child
• Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
• Okla. Stat. tit. 12 § 2802 - Hearsay; Exceptions
• Okla. Stat. tit. 22 § 3.11(B)(3)(b) - Evidentiary Hearing for Ineffective Assistance of Counsel
• Okla. Stat. tit. 22 § 3.15 - Mandate Issuance

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.