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F-2018-302

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Jorge R. Medina v State Of Oklahoma

F-2018-302

Filed: Oct. 24, 2019

Not for publication

Prevailing Party: State of Oklahoma

Summary

Jorge R. Medina appealed his conviction for Lewd or Indecent Acts to a Child Under 16. Conviction and sentence: 40 years imprisonment. Judge Kuehn dissented regarding a failure to hold a hearing on the reliability of certain evidence.

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. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was there prosecutorial misconduct when the prosecutor misstated the law on the lesser included charge of assault and battery as well as encouraged the juror to assume rather than find an element?
  • Did the appellant properly understand his Miranda rights, and should his confession have been suppressed?
  • Was the appellant prejudiced by the introduction of other bad acts evidence without a proper Burks hearing?
  • Was the appellant prejudiced by the introduction of hearsay testimony during various testimonies?
  • Was the appellant denied constitutionally effective assistance of counsel based on trial counsel's failure to object to several issues?
  • Did the accumulation of error in this case deprive the appellant of due process of law in violation of constitutional rights?

Findings

  • the court erred, there was no actual or obvious error in the prosecutor's closing argument
  • the court erred, the confession was made voluntarily and properly admitted
  • the court erred, evidence of prior molestation was admissible and properly admitted
  • the court erred, no pretrial hearing was necessary due to invited error
  • the court erred, no ineffective assistance of counsel occurred
  • the court erred, cumulative error did not deprive the appellant of a fair trial

F-2018-302

Oct. 24, 2019

Jorge R. Medina

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Jorge R. Medina, was tried and convicted by a jury in the District Court of Comanche County, Case No. CF-2015-658, for the crime of Lewd or Indecent Acts to a Child Under 16, in violation of 21 O.S.Supp.2015, § 1123(A)(2). The jury recommended a sentence of forty years imprisonment. The Honorable Emmit Tayloe, District Judge, sentenced Medina in accordance with the jury’s verdict, imposed various costs and fees and ordered credit for time served. Medina now appeals.

Medina alleges the following propositions of error on appeal:

I. APPELLANT WAS PREJUDICED BY PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR MISSTATED THE LAW ON THE LESSER INCLUDED CHARGE OF ASSAULT AND BATTERY AS WELL AS ENCOURAGING THE JUROR TO ASSUME RATHER THAN FIND AN ELEMENT;

II. APPELLANT DID NOT PROPERLY UNDERSTAND HIS MIRANDA RIGHTS AND THEREFORE HIS CONFESSION SHOULD HAVE BEEN SUPPRESSED;

III. APPELLANT WAS PREJUDICED BY THE INTRODUCTION OF OTHER BAD ACTS EVIDENCE WITHOUT A PROPER BURKS HEARING;

IV. APPELLANT WAS PREJUDICED BY THE INTRODUCTION OF HEARSAY TESTIMONY DURING RENEE HERNANDEZ’S TESTIMONY, THE TESTIMONY OF THE SANE NURSE, AND THE FORENSIC INTERVIEW;

V. APPELLANT WAS DENIED CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL BASED ON TRIAL COUNSEL’S FAILURE TO OBJECT TO PROSECUTORIAL VOUCHING, FOR FAILING TO OBJECT TO THE PROSECUTOR MISSTATING THE LAW, FOR FAILING TO REQUEST A JACKSON V. DENNO HEARING, FOR NOT OBJECTING TO BURKS EVIDENCE, AND FOR NOT REQUESTING A § 2803.1 HEARING; and

VI. THE ACCUMULATION OF ERROR IN THIS CASE DEPRIVED APPELLANT OF DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, § 7 OF THE OKLAHOMA CONSTITUTION.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED.

Proposition I. Appellant failed to object below to those portions of the prosecutor’s closing argument now challenged on appeal. Our review is thus limited to plain error. To be entitled to relief under the plain error doctrine, Appellant 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. If these elements are met, this Court will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Appellant fails to show actual or obvious error.

On claims of prosecutorial misconduct, relief will be granted only where the prosecutor committed misconduct that so infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon. We have long allowed counsel a wide range of discussion and illustration in closing argument. The record shows the prosecutor did nothing more than discuss the elements of simple assault and battery set forth in the instructions and argue that the evidence did not support a conviction on this lesser offense. The prosecutor did not misstate the law concerning this misdemeanor offense. The prosecutor instead very skillfully focused on the lewd and lascivious nature of the molestation to disprove the applicability of the lesser crime. We observe too that the prosecutor did not express her personal opinion as to Appellant’s guilt. Instead, the State discussed the evidence from its viewpoint. This was permissible argument. There is no error, plain or otherwise, from the prosecutor’s comments. Proposition I is denied.

Proposition II. Appellant withdrew on the first day of trial his written request for a hearing under Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) to examine the voluntariness of his confession. Appellant also did not object to the confession on voluntariness or any other grounds when it was admitted at trial. Our review is for plain error only. Appellant fails to show actual or obvious error. The issue before the Court is simple: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. The voluntariness of a confession is evaluated on the basis of the totality of all the surrounding circumstances. Assuming without deciding that Appellant was in custody when he was interviewed, our review of the total record including the videotape confirms that Appellant’s statement was made after a knowing and voluntary waiver of the rights read to him by Det. Whittington off the Miranda form. The totality of the circumstances confirms that Appellant’s confession itself was wholly voluntary. Proposition II is denied.

Proposition III. Appellant concedes that he did not object below to the admission of evidence concerning his prior molestation of the victim. Our review is therefore limited to plain error. The record shows the State filed a written pretrial notice seventeen days before trial of its intention to introduce Appellant’s recorded interview in which Appellant admits to inappropriately touching the victim, J.M., not only on December 12, 2015, but also prior acts with the victim. There is thus no possible notice problem with the admission of this evidence. We further find that this aspect of Appellant’s videotaped statement was admissible under 12 O.S.2011, § 2414 or, alternatively, under 12 O.S.2011, § 2404(B) to demonstrate motive, intent or absence of mistake or accident. Further, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. There is no error, plain or otherwise, from the admission of this evidence. The same is true for Appellant’s challenge to testimony from the SANE nurse concerning the victim’s description of being molested previously by Appellant. The State provided notice of its intent to present this testimony seventeen days before trial in its written notice of intent to present child hearsay. This evidence was relevant and admissible under § 2414 or, alternatively, under § 2404(B), for the same reasons discussed above for the challenged portions of Appellant’s videotaped statement. The probative value of this testimony was not substantially outweighed by the danger of unfair prejudice. There is no error, plain or otherwise, from the admission of this testimony. The State did not provide written pretrial notice explicitly detailing its intent to elicit Renee Hernandez’s testimony that J.M. told her this wasn’t the first time Appellant had molested her. The record nonetheless shows the defense was aware of the victim’s disclosure to numerous individuals that Appellant had molested her in the past. Because there is no indication in the record that this aspect of Hernandez’s testimony was a surprise, Appellant fails to show actual or obvious error concerning this issue, let alone prejudice. Review of Hernandez’s testimony further shows it was relevant, that its probative value was not substantially outweighed by the danger of unfair prejudice and that it was admissible under § 2414 or, alternatively, § 2404(B) for the purposes discussed above. There was no error, plain or otherwise, on this record relating to the admission of this evidence. Proposition III is denied.

Proposition IV. The record confirms that no hearing was held concerning the admissibility of J.M.’s hearsay statements about the molestation through the victim’s mother; the sexual assault nurse examiner; and Det. Whittington. However, defense counsel did not request such a hearing when the trial court heard pending motions prior to the commencement of voir dire. Instead, defense counsel presented a motion to remand the case for preliminary hearing in light of the State’s amendment of the Information. When the trial court denied the motion and asked for Appellant to present his next motion, defense counsel announced that he had none and then formally withdrew his written motion for a Jackson v. Denno hearing. The record shows too that Appellant made no objection whatsoever to the testimony now challenged on appeal. Appellant stated that he had no objection to Det. Whittington’s forensic interview of J.M. being played for the jury. And he registered no objection to the testimony from Renee Hernandez and the sexual assault nurse examiner concerning J.M.’s statements about the molestation. Additionally, Appellant actively cross-examined the victim when she was presented by the State at trial as a precondition to admissibility of her hearsay statements through the other witnesses. Defense counsel’s affirmative statement to the court at the beginning of the trial that he had no further motions to be heard represents invited error. Thus, no pretrial admissibility hearing was necessary in this case for the challenged testimony. Proposition IV is denied.

Proposition V. To prevail on an ineffective assistance of counsel claim, the appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Appellant fails to show either deficient performance or prejudice based upon trial counsel’s failure to raise the claims that we rejected in Propositions I, II and III. In Proposition IV, we found Appellant’s various challenges to the admission of J.M.’s hearsay statements were waived because counsel invited any error. We find no Strickland prejudice because the absence of a hearing as required by Section 2803.1(A)(1) does not demonstrate the unreliability of the child hearsay statements. Review of the record shows that the time, content and totality of circumstances surrounding the taking of the statements provide sufficient indicia of reliability so as to render them inherently trustworthy. Trial counsel thus was not ineffective for failing to request a hearing on this issue. Proposition V is denied.

Proposition VI. We deny relief for Appellant’s cumulative error claim. Review of the total record shows this is simply not a case where numerous irregularities during Appellant’s trial tended to prejudice his rights or otherwise deny him a fair trial. Proposition VI 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. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 21 § 1123(A)(2)
  2. Chadwell v. State, 2019 OK CR 14, 11 5-6, P.3d .
  3. Musonda v. State, 2019 OK CR 1, I 6, 435 P.3d 694, 696.
  4. Williams v. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228.
  5. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
  6. Bench v. State, 2018 OK CR 31, I 39, 431 P.3d 929, 949.
  7. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973).
  8. Spruill v. State, 2018 OK CR 25, I 3, 425 P.3d 753, 755.
  9. Kirkwood v. State, 2018 OK CR 9, I 10, 421 P.3d 314, 318.
  10. Lowery v. State, 2008 OK CR 26, IT 9, 192 P.3d 1264, 1268.
  11. 12 O.S.2011, § 2414
  12. 12 O.S.2011, § 2404(B)
  13. Lamar v. State, 2018 OK CR 8, I 41, 419 P.3d 283, 294.
  14. 12 O.S.2011, § 2803.1(A)(1)
  15. Thomas v. State, 1987 OK CR 223, I 3, 744 P.2d 974, 975-76.
  16. Sprigner v. State, 1976 OK CR 36, "I 5, 546 P.2d 645, 647.
  17. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
  18. Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011).
  19. Tryon v. State, 2018 OK CR 20, I 144, 423 P.3d 617, 655.
  20. Simpson v. State, 1994 OK CR 40, "I 19, 876 P.2d 690, 698.
  21. Thompson v. State, 2019 OK CR 3, q13, 438 P.3d 373, 377.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1123 (2015) - Lewd or Indecent Acts to a Child Under 16
  • Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error
  • Okla. Stat. tit. 12 § 2414 (2011) - Child Hearsay
  • Okla. Stat. tit. 12 § 2404 (2011) - Character Evidence
  • Okla. Stat. tit. 12 § 2803.1 (2011) - Hearsay Exceptions; Statements Made by Child Victims
  • Okla. Stat. tit. 12 § 2803 (2011) - Exceptions to the Rule Against Hearsay

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:

  • Chadwell v. State, 2019 OK CR 14, 11, __P.3d__
  • Musonda v. State, 2019 OK CR 1, 1 6, 435 P.3d 694, 696
  • Sanders v. State, 2015 OK CR 11, 9 21, 358 P.3d 280, 286
  • Williams v. State, 2008 OK CR 19, 1 107, 188 P.3d 208, 228
  • Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)
  • Bench v. State, 2018 OK CR 31, 1 39, 431 P.3d 929, 949
  • Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973)
  • Spruill v. State, 2018 OK CR 25, 1 3, 425 P.3d 753, 755
  • Kirkwood v. State, 2018 OK CR 9, 1 10, 421 P.3d 314, 318
  • Lowery v. State, 2008 OK CR 26, IT 9, 192 P.3d 1264, 1268
  • Lamar v. State, 2018 OK CR 8, 1 41, 419 P.3d 283, 294
  • Thomas v. State, 1987 OK CR 223, 1 3, 744 P.2d 974, 975-76
  • Sprigner v. State, 1976 OK CR 36, 1 5, 546 P.2d 645, 647
  • Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)
  • Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011)
  • Tryon v. State, 2018 OK CR 20, 1 144, 423 P.3d 617, 655
  • Simpson v. State, 1994 OK CR 40, 1 19, 876 P.2d 690, 698
  • Harney v. State, 2011 OK CR 10, 1 23, 256 P.3d 1002, 1007
  • Thompson v. State, 2019 OK CR 3, q13, 438 P.3d 373, 377

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