John Wesley Hart v The State Of Oklahoma

F-2018-290

Filed: Aug. 15, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

John Wesley Hart appealed his conviction for child sexual abuse. Conviction and sentence of 60 years imprisonment. Kuehn dissented. In this case, John Wesley Hart was found guilty by a jury of three counts of child sexual abuse. The jury decided that he should serve 20 years for each count, meaning he has to spend a total of 60 years in prison. Hart questioned the way the jury was instructed about the law during his trial and said that his sentence was too harsh. The court found that the instructions given to the jury were correct. The judges explained that it is okay for someone to be convicted of different counts, as long as the jury agrees that he committed the crime of child sexual abuse, even if the specific acts might be described in different ways. They also said that his sentence was not too extreme based on what he did. The decision to keep Hart in prison for 60 years was upheld, and the court did not agree with his claim that his sentence should be shorter.

Decision

The judgment and sentence is AFFIRMED. 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 the trial court's jury instruction regarding the elements of child sexual abuse in Count 1 a violation of Mr. Hart's right to due process under the Fourteenth Amendment and applicable case law?
• Was the trial court's jury instruction regarding the elements of child sexual abuse in Count 6 a violation of Mr. Hart's right to due process under the Fourteenth Amendment and applicable case law?
• Is Mr. Hart's sentence totaling 60 years imprisonment excessive and should it be modified?

Findings

• the trial court did not err in instructing the jury regarding the elements of child sexual abuse in Count 1
• the trial court did not err in instructing the jury regarding the elements of child sexual abuse in Count 6
• Mr. Hart's sentence is not excessive and is affirmed

F-2018-290

Aug. 15, 2019

John Wesley Hart

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: John Wesley Hart, Appellant, was tried by jury and convicted of Counts 1, 3 and 6, child sexual abuse, in violation of 21 O.S.Supp.2014 § 843.5, in the District Court of Tulsa County, Case No. CF-2017-2491. The jury set punishment at twenty (20) years imprisonment on each count. The Honorable William J. Musseman, Jr., District Judge, pronounced judgment and sentence accordingly and ordered the sentences served consecutively. Hart appeals in the following propositions of error:

1. The trial court incorrectly instructed the jury regarding the elements of child sexual abuse in Count 1 in violation of Mr. Hart’s right to due process under the Fourteenth Amendment and the State and Federal Constitution and case law.
2. The trial court incorrectly instructed the jury regarding the elements of child sexual abuse in Count 6 in violation of Mr. Hart’s right to due process under the Fourteenth Amendment and the State and Federal Constitution and case law.
3. Mr. Hart’s sentence totaling 60 years imprisonment is excessive and should be modified.

In Propositions One and Two, Appellant challenges the jury instructions given relative to Counts 1 and 6. Instructions are within the discretion of the trial court. Tucker v. State, 2016 OK CR 29, 25, 395 P. 3d 1, 8. The trial judge should instruct jurors on the applicable law, including the elements of the offense and the law applying to that case’s evidence. Day v. State, 2013 OK CR 8, 14, 303 P.3d 291, 298. Appellant was convicted of three counts of child sexual abuse occurring within the same time period. The corresponding counts in the Information charged Appellant with different and distinct acts constituting the abuse. The evidence at trial showed that these acts occurred at different occasions separated by significant time periods. See Salyer v. State, 1988 OK CR 184, 16, 761 P.2d 890, 893-94 (convictions for sexual abuse crimes separated by a significate lapse of time do not constitute double jeopardy).

The trial court instructed the jury correctly on the elements of child sexual abuse, then defined element two of child sexual abuse – lewd or indecent acts. Appellant claims that these optional behaviors constituting lewd or indecent acts could have caused him to have convictions based on non-unanimous verdicts. The evidence showed that Appellant committed all of the acts described in the definitions of lewd or indecent acts at different times during his lengthy period of sexual abuse of the victim. Appellant placed her in a position on the bed and put his penis between her thighs without penetrating her vagina more than one time. Appellant licked her vagina and breasts. Appellant put his penis in the victim’s mouth several times. The victim remembered that Appellant once ejaculated into her mouth. Appellant made the victim touch his penis with her own hands. She couldn’t remember if that happened more than once. Due process requires a unanimous jury verdict only on the ultimate issue of an appellant’s guilt of the crime charged, not the means by which the crime was committed. Gilson v. State, 2000 OK CR 14, 38, 8 P.3d 883, 903; see also Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). The definitions are not independent elements of the crime, but are means of completing a single element. Gilson, 2000 OK CR 14, 27, 8 P.3d at 900-901. The definitions define different factual conditions under which child sexual abuse occurs. They do not define different legal principles or crimes. The finding of the commission of child sexual abuse by alternative means does not cause a constitutional error. This proposition is denied.

In Proposition Three, Appellant claims his sentence is excessive. Appellant’s sentence is supported by the facts and circumstances of the case and is within the range of punishment provided by law. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Pullen v. State, 2016 OK CR 18, 16, 387 P.3d 922, 928. Appellant’s sentence does not meet that test. Appellant mentions that the jury recommended the sentences be served concurrently and asks this Court to modify accordingly. The trial court, however, has the discretion to run sentences consecutively or concurrently and this Court will not reverse that decision unless the trial court has abused its discretion. Neloms v. State, 2012 OK CR 7, 35, 274 P.3d 161, 170; 22 O.S.2011, § 976. There was no abuse of discretion here. Appellant’s sentences are affirmed.

DECISION

The judgment and sentence is AFFIRMED. 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. Appellant must serve 85% of his sentence before being eligible for consideration for parole. 22 O.S.Supp.2015, § 13.1(14).
2. The finding of the commission of child sexual abuse by alternative means does not cause a constitutional error. Gilson v. State, 2000 OK CR 14, I 27, 8 P.3d at 900-901.
3. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928.
4. There was no abuse of discretion here. Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170; 22 O.S.2011, § 976.
5. I continue to believe that the crime of child sexual abuse, as found in 21 O.S. §§ 843.5(E) and (F), is unconstitutional. A.O. v. State, 2019 OK CR 18, P.3d (Kuehn, V.P.J., dissenting).
6. The trial court ultimately crafted an instruction which avoided that concern, by omitting specific evidence from the jury's consideration.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5 (2014) - Child sexual abuse
• Okla. Stat. tit. 22 § 13.1(14) (2015) - Parole eligibility
• Okla. Stat. tit. 22 § 976 (2011) - Sentencing

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 14th Amendment - Due Process

Other citations:

No other rule citations found.

Case citations:

• Tucker v. State, 2016 OK CR 29, I 25, 395 P.3d 1, 8
• Day v. State, 2013 OK CR 8, I 14, 303 P.3d 291, 298
• Salyer v. State, 1988 OK CR 184, I 16, 761 P.2d 890, 893-94
• Gilson v. State, 2000 OK CR 14, I 38, 8 P.3d 883, 903
• Gilson v. State, 2000 OK CR 14, I 27, 8 P.3d 883, 900-901
• Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991)
• Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• A.O. v. State, 2019 OK CR 18, P.3d