Garret Taylor Mankin v State Of Oklahoma

F-2018-595

Filed: Jul. 11, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Garret Taylor Mankin appealed his conviction for two counts of Lewd Acts with a Child Under Twelve. Conviction and sentence were affirmed, and he received a total of twenty-five years in prison for each count, with the last five years of both sentences suspended. Judge Hudson wrote the opinion, while no judges dissented.

Decision

The Judgments and Sentences of the District Court are 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 there an error in admitting the hearsay statements of alleged victim P.M.?
• Was there an error in admitting the hearsay statements of alleged victim F.Y.?

Findings

• the trial court did not err in admitting the hearsay statements of alleged victim P.M.
• the trial court did not err in admitting the hearsay statements of alleged victim F.Y.
• the judgment and sentence of the District Court are affirmed.

F-2018-595

Jul. 11, 2019

Garret Taylor Mankin

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Garret Taylor Mankin, Appellant, was tried and convicted in a nonjury trial in Pontotoc County District Court Case No. CF-2015-347, of two counts of Lewd Acts with a Child Under Twelve (Counts 1 and 3), in violation of 21 O.S.Supp.2013, § 1123(A)(2). The Honorable C. Steven Kessinger, District Judge, presided at trial and sentenced Mankin to twenty-five years imprisonment on each count, the last five years of both sentences suspended. Mankin was originally charged with eleven counts of Lewd Acts with a Child Under Twelve. However, by agreement of the parties, the trial court dismissed Counts 2 and 4-11, and ordered that Mankin proceed to trial on Counts 1 and 3. Mankin must serve not less than eighty-five (85) percent of his sentence before becoming eligible for parole. 21 O.S.Supp.2014, § 13.1(18). Kessinger ordered the sentences to run concurrently with each other. The court further imposed various fines, fees, and costs. Mankin now appeals, raising two propositions of error before this Court:

I. THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY STATEMENTS OF ALLEGED VICTIM P.M.;

II. THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY STATEMENTS OF ALLEGED VICTIM F.Y.

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 Judgments and Sentences are AFFIRMED.

Propositions I and II: The challenged hearsay testimony was admitted under 12 O.S.Supp.2013, § 2803.1. Section 2803.1 allows hearsay statements by children under the age of thirteen describing an act of sexual contact performed on them by another to be admissible if the trial court finds that the time, content and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability SO as to render it inherently trustworthy. Folks U. State, 2008 OK CR 29, I 10, 207 P.3d 379, 382. In determining such trustworthiness, the court may consider, among other things, the following factors: the spontaneity and consistent repetition of the statement, the mental state of the declarant, whether the terminology used is unexpected of a child of similar age and whether a lack of motive to fabricate exists[.] 12 O.S.Supp.2013, § 2803.1(A)(1) (emphasis added). We review the trial court’s admission of child hearsay statements for an abuse of discretion. Folks U. State, 2008 OK CR 29, II 15, 207 P.3d 379, 383; Drake U. State, 1988 OK CR 180, II 15, 761 P.2d 879, 883.

An abuse of discretion has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented or, stated otherwise, any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Neloms U. State, 2012 OK CR 7, II 35, 274 P.3d 161, 170.

In Proposition I, Appellant contends that the statements P.M. made to her mother and the forensic interviewer, Lara Welch, were not inherently trustworthy as they lacked consistent repetition and spontaneity. Consistent repetition is only one factor among others that may be considered by the trial court when determining trustworthiness. 12 O.S.Supp.2013, § 2803.1(A)(1). While P.M.’s disclosure to Welch was somewhat tentative, P.M. told both her mother and Welch that Appellant touched her and it happened at church. Moreover, [m]erely because the child victim’s statements are made in response to questioning does not make them untrustworthy. Folks, 2008 OK CR 29, II 12, 207 P.3d at 382. Rather, the pivotal consideration is whether the questioning coerced or lead the child victim in any way to testify in a certain manner. Id. Here, the record shows that the questions P.M.’s mother asked P.M. during her bath time were not leading and did not suggest the expected answer. All things considered, the trial court’s admission of P.M.’s hearsay statements was not a clearly erroneous ruling given the circumstances and facts presented. The record supports the trial court’s ruling that P.M.’s statements were inherently trustworthy and therefore admissible under § 2803.1. Thus, no abuse of discretion has been shown.

In Proposition II, Appellant asserts that F.Y.’s statements were not inherently trustworthy because there was no consistent repetition, they were not spontaneous, and there was no terminology used [that was] unexpected of a child of similar age. 12 O.S.Supp.2013, § 2803.1(A)(1). Upon review, we find F.Y.’s statements were properly admitted as the time, content and totality of the circumstances surrounding her statements provided a sufficient indicia of reliability. 12 O.S.Supp.2013, § 2803.1(A)(1). The timing and circumstances of F.Y.’s statement to her mother on June 7, 2015—the same day Appellant was seen inappropriately touching F.Y. at church during Sunday school—provides strong indicia of reliability. The record shows F.Y.’s mother asked open-ended questions that did not coerce or lead F.Y. into making allegations against Appellant. Moreover, when F.Y.’s mother spoke with F.Y. that day, she had no reason to suspect that Appellant had caused F.Y. to touch his fat leg (penis). F.Y.’s use of the term fat leg was also entirely consistent with a four-year-old child’s description of something for which she has no other context and therefore was unexpected terminology for a child of similar age. 12 O.S.Supp.2013, § 2803.1(A)(1). Thus, all things considered, the trial court’s admission of F.Y.’s statements was not an abuse of discretion under the facts and circumstances presented here.

Appellant’s Propositions I and II are denied. As we observed with regard to Proposition I, even assuming error, the admission of F.Y.’s statements did not impact the trial court’s verdict given (1) the eye witness testimony surrounding the details of Appellant’s molestation of F.Y. at the church on June 7, 2015, and (2) Appellant’s admissions during his police interview that he touched F.Y. inappropriately. Thus, the admission of F.Y.’s statements, if error, was harmless as to the trial court’s finding of guilt. Moreover, the admission of the challenged testimony clearly did not affect Appellant’s Count 1 sentence as the trial court imposed the minimum sentence of twenty-five years, suspended five years of this sentence, and ordered it to run concurrently with his Count 3 sentence.

DECISION

The Judgments and Sentences of the District Court are 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. 21 O.S.Supp.2013, § 1123(A)(2)
2. 21 O.S.Supp.2014, § 13.1(18)
3. 12 O.S.Supp.2013, § 2803.1
4. 12 O.S.Supp.2013, § 2803.1(A)(1)
5. Folks v. State, 2008 OK CR 29, 10, 207 P.3d 379, 382
6. Drake v. State, 1988 OK CR 180, 15, 761 P.2d 879, 883
7. Neloms v. State, 2012 OK CR 7, 35, 274 P.3d 161, 170
8. Dodd v. State, 2004 OK CR 31, 49, 100 P.3d 1017, 1034
9. McLeod v. State, 1986 OK CR 140, 20, 725 P.2d 877, 882

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123(A)(2) - Lewd Acts with a Child Under Twelve
• Okla. Stat. tit. 21 § 13.1(18) - Parole Eligibility
• Okla. Stat. tit. 12 § 2803.1 - Hearsay Exceptions for Child Victims

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:

• Folks v. State, 2008 OK CR 29, I 10, 207 P.3d 379, 382
• Folks v. State, 2008 OK CR 29, II 15, 207 P.3d 379, 383
• Drake v. State, 1988 OK CR 180, II 15, 761 P.2d 879, 883
• Neloms v. State, 2012 OK CR 7, II 35, 274 P.3d 161, 170
• Dodd v. State, 2004 OK CR 31, II 49, 100 P.3d 1017, 1034
• McLeod v. State, 1986 OK CR 140, II 20, 725 P.2d 877, 882