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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JORGE R. MEDINA ) Appellant, NOT FOR PUBLICATION ) V. ) No. F-2018-302 STATE OF OKLAHOMA, FILED Appellee. ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SUMMARY OPINION OCT 24 2019 HUDSON, JUDGE: JOHN D. HADDEN CLERK 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 1 The record shows that the victim in this case was seven years old at the time the offense was committed, a fact alleged in the amended Information. The amended Information, the instructions, the verdict form and the judgment and sentence all list Appellant’s crime as Lewd or Indecent Acts to a Child Under 16. The jury nonetheless was correctly instructed on the enhanced range of punishment for this crime when the victim is under twelve years of age. See Chadwell v. State, 2019 OK CR 14, 11 5-6, P.3d . 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 2 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. Chadwell U. State, 2019 OK CR 14, 9, __P.3d__ . 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. Musonda U. State, 2019 OK CR 1, I 6, 435 P.3d 694, 696. 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. Id.; 20 O.S.2011, § 3001.1. Appellant fails to show actual or obvious error. “On claims of prosecutorial misconduct, relief will be granted only where the 3 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.” Sanders U. State, 2015 OK CR 11, 9 21, 358 P.3d 280, 286. We have long allowed counsel a wide range of discussion and illustration in closing argument. Id. “Counsel enjoy a right to discuss fully from their standpoint the evidence and inferences and deductions arising from it.” Id. 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. See Williams v. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228 (“Any prosecutor is usually going to tell the jury what he thinks the evidence showed. If his argument is reasonably based on the evidence, there should be no error.”). There 4 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 U. 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. Rowe v. State, 1989 OK CR 54, I 3, 779 P.2d 594, 595. 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. Bench v. State, 2018 OK CR 31, I 39, 431 P.3d 929, 949 (quoting Culombe U. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037 (1961)). “The voluntariness of a confession is evaluated on the basis of the totality of all the surrounding circumstances.” Bench, 2018 OK CR 31, I 39, 431 P.3d at 949 (citing 5 Schneckloth U. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973)). 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 Miranda² form. See Spruill U. State, 2018 OK CR 25, I 3, 425 P.3d 753, 755 (“Under Miranda, no statement obtained through custodial interrogation may be used against a defendant without a knowing and voluntary waiver of those rights.”). 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. See Kirkwood U. State, 2018 OK CR 9, I 10, 421 P.3d 314, 318; Lowery U. State, 2008 OK CR 26, IT 9, 192 P.3d 1264, 1268. The record shows the State filed a written pretrial notice seventeen days before trial of 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 6 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 7 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. Appellant fails to meet his heavy burden of demonstrating plain error on appeal based on alleged lack of notice. See Lamar v. State, 2018 OK CR 8, I 41, 419 P.3d 283, 294 (appellant has “the heavy burden of demonstrating plain error” on appeal) (quoting Stewart U. State, 2016 OK CR 9, I 27, 372 P.3d 508, 514). Appellant has shown merely that the State’s pretrial notice could have been more explicit, not that the State failed to provide him notice that it would elicit this testimony from Hernandez. 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 8 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. See 12 O.S.2011, § 2803.1(A)(1). 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 9 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. 12 O.S.2011, § 2803.1(A)(2)(a). 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. Defense counsel’s statement that he had no objection to the admission of the victim’s forensic interview, particularly after cross-examining her on the stand, also represents invited error. Thus, no pretrial admissibility hearing was necessary in this case for the challenged testimony. See Thomas U. State, 1987 OK CR 223, I 3, 744 P.2d 974, 975-76 (“In this case, where the record is devoid of motions or objections necessary to preserve this issue, and where whatever error that may have occurred appears to be invited, appellant’s assignment must fail.”); Sprigner U. State, 1976 OK CR 36, “I 5, 546 P.2d 645, 647 (“the defendant may not now be heard to complain of that which he was instrumental in causing.”). Proposition IV is denied. 10 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. Strickland U. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Harrington U. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011) (discussing Strickland, supra). 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. Logan U. State, 2013 OK CR 2, I 11, 293 P. 3d 969, 975 (“The omission of a meritless claim cannot constitute deficient performance; nor can it have been prejudicial.”). 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 11 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. Tryon U. State, 2018 OK CR 20, I 144, 423 P.3d 617, 655. 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. AN APPEAL FROM COMANCHE COUNTY DISTRICT COURT THE HONORABLE EMMIT TAYLOE, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL MIGUEL GARCIA DANNY JOSEPH ATTORNEY AT LAW OKLA. INDIGENT DEFENSE 3523 N.W. 36TH ST., SUITE 101 SYSTEM OKLAHOMA CITY, OK 73112 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT 12 M. ERIC BAYAT ATTORNEY AT LAW 3101 N. CLASSEN BLVD. SUITE 201 OKLAHOMA CITY, OK 73118 COUNSEL FOR DEFENDANT JILL OLIVER MIKE HUNTER ASSISTANT DISTRICT ATTORNEY OKLA. ATTORNEY GENERAL COMANCHE COUNTY SHERI M. JOHNSON 315 S.W. 5TH ST. ASST. ATTY. GENERAL LAWTON, OK 73501 313 N.E. 21ST STREET COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: HUDSON, J. LEWIS, P.J.: CONCUR IN PART/DISSENT IN PART KUEHN, V.P.J.: CONCUR IN PART/DISSENT IN PART LUMPKIN, J.: CONCUR IN RESULTS ROWLAND, J.: CONCUR 13 KUEHN, V.P.J., CONCUR IN PART AND DISSENT IN PART: I concur with the Majority in the disposition of Propositions I-III and V-VI. I dissent to the analysis in Proposition IV. I disagree with the Majority’s conclusion that failure to hold a reliability hearing, as required by statute, before admission of the nurse’s testimony was invited error. 1 The Majority finds that Appellant invited error because defense counsel did not request a hearing on the reliability of the statements. Neither the State nor the Defendant is required to “request” a hearing on the reliability of statements being offered, once notice to admit the hearsay is filed under 12 O.S.2011 § 2803.1. It is the trial court’s responsibility to make sure a hearing is held to determine whether the statements are sufficiently reliable. “Because hearsay statements from a child victim can have a powerful effect on a jury, the Legislature directs trial 1 The proposition of error complained about three sets of statements by the child: (1) statements to her mother, 2) statements to the sexual-assault nurse, and (3) statements made in the forensic interview. At trial, Appellant had no objection to the forensic interview, SO the failure to hold a hearing was harmless as to that set of statements. Because the statements to the victim’s mother are excited utterances, they were admissible under 12 O.S.2011, § 2803(2), and again, the failure to hold a hearing for admissibility under § 2803.1 was harmless. I only take issue with the lack of hearing on the statements made to the sexual-assault nurse. courts to review that evidence in advance of its admission, giving both parties a chance to test it and argue for or against its reliability.” Loya U. State, F-2017-0065 (unpub. Aug. 23, 2018) (Kuehn, J., specially concurring). Error did occur when the trial court failed to hold a hearing to determine the reliability the statements to the sexual-assault nurse. 2 Simpson U. State, 1994 OK CR 40, “I 19, 876 P.2d 690, 698 (“We have previously held failure to have a hearing in accordance with the directives of [§ 2803.1] is fundamental error…”). We should honor the intent of that statute, and require trial courts to hold a hearing. Appellant did not object to the statements when they were admitted at trial, SO we should review the lack of a hearing for plain error. Harney U. State, 2011 OK CR 10, I 23, 256 P.3d 1002, 1007. Under plain-error review, Appellant must show that a plain or obvious error affected the outcome of the proceedings. Thompson v. 2 Before determining if error occurred, we must determine if the statements are not hearsay. If the statements fall under the medical diagnosis and treatment exception of 12 O.S.2011, § 2803(4), the trial court would not need to hold a reliability hearing. This Court recently established a test to make that determination in Thompson v. State, 2019 OK CR 3, q13, 438 P.3d 373, 377. Following the outline in Thompson, I would find the statements were not made for purposes of medical diagnosis in this case. Therefore, the statements are inadmissible hearsay unless they were found to be reliable and admissible under 12 O.S.2011, § 2803.1. 2 State, 2018 OK CR 32, I 6, 429 P.3d 690, 692. The evidence in this case was overwhelming. The victim’s mother caught Appellant in the act, with his mouth on her mouth and his hand down the back of her pants. Appellant admitted groping the victim’s buttocks (although he denied penetrating her), and could not say why he did SO. The victim herself testified about the inappropriate touching, and that testimony was corroborated by her statements in the forensic interview, which was admitted without any defense objection. The error in failing to hold a hearing on the admissibility of the victim’s statements to the sexual-assault nurse did not affect the outcome of the trial, but our failure to notice a plain error when we see it will only encourage trial courts and attorneys to ignore the statutory mandate. I am authorized to state Presiding Judge Lewis joins in this separate writing. 3

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