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F-2018-616

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Heather Suzanne Barbee v The State Of Oklahoma

F-2018-616

Filed: Sep. 26, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Heather Suzanne Barbee appealed her conviction for Sexual Exploitation of a Child. Conviction and sentence affirmed to thirty-three years imprisonment. Justice Rowland dissented.

Decision

The Judgment and Sentence of the District Court of Muskogee County 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 there an error in holding a two-stage trial instead of a one-stage trial?
  • Did the State's decision to proceed with a two-stage trial without any proof of former felonies cause harm to Ms. Barbee?
  • Did prosecutorial misconduct deprive Appellant of a fair trial?
  • Was there ineffective assistance of counsel that deprived Appellant of a fair trial?
  • Was the sentence excessive?
  • Did cumulative error deprive Ms. Barbee of a fair trial?

Findings

  • the trial judge's decision to hold a two-stage trial was proper
  • the state's decision to proceed with a two-stage trial without proof of former felonies did not cause harm
  • there was no prosecutorial misconduct that deprived appellant of a fair trial
  • trial counsel was not ineffective
  • the sentence was not excessive
  • there was no cumulative error that deprived appellant of a fair trial

F-2018-616

Sep. 26, 2019

Heather Suzanne Barbee

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Heather Suzanne Barbee, was convicted by a jury in Muskogee County District Court, Case No. F-2017-190, of Sexual Exploitation of a Child. On June 14, 2018, the Honorable Michael Norman, District Judge, sentenced her to thirty-three years imprisonment, in accordance with the jury’s recommendation. She must serve 85% of her sentence before parole consideration. Appellant raises six propositions of error in support of her appeal:

PROPOSITION I. THE TRIAL JUDGE ERRED BY HOLDING A TWO-STAGE TRIAL INSTEAD OF A ONE-STAGE TRIAL.

PROPOSITION II. THE STATE’S DECISION TO PROCEED WITH A TWO-STAGE TRIAL WITHOUT ANY PROOF OF FORMER FELONIES CAUSED HARM TO Ms. BARBEE.

PROPOSITION III. PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL.

PROPOSITION IV. INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED APPELLANT OF A FAIR TRIAL.

PROPOSITION V. THE SENTENCE WAS EXCESSIVE.

PROPOSITION VI. CUMULATIVE ERROR DEPRIVED Ms. BARBEE OF A FAIR TRIAL.

After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was charged with sexually exploiting her minor sister for financial gain. The State charged two counts, but the jury found her guilty of only one. As to Propositions I and II, the record indicates that (1) Appellant had prior convictions used to enhance sentence on one of the two charges she faced; (2) the trial was bifurcated as to both charges; but (3) the jury acquitted Appellant of the enhanced count. Thus, the jury sentenced Appellant as a first offender on the remaining charge, and never heard about the prior convictions. The procedure used was entirely proper, and Appellant fails to show any prejudice from it. Wisdom U. State, 1996 OK CR 22, 99 17-20, 918 P.2d 384, 390; Marshall U. State, 2010 OK CR 8, I 58, 232 P.3d 467, 481. Propositions I and II are denied.

In Proposition III, Appellant alleges six instances of prosecutor misconduct. Because she did not object to these comments below, we review them only for plain error – an actual error, that is plain or obvious, 2 and that affects a defendant’s substantial rights, affecting the outcome of the trial. Bosse U. State, 2017 OK CR 10, 9 82, 400 P.3d 834, 863. We find no error.

First, the prosecutor did not impermissibly comment on Appellant’s failure to testify simply by arguing that the jury had received absolutely nothing to contradict the testimony of the State’s primary witnesses. Such general comments about the totality of the evidence (and lack of controverting evidence) differ from directly suggesting that the defendant must be guilty because she did not take the stand. Id., 2017 OK CR 10, I 85, 400 P.3d at 863. The prosecutor never shirked her burden to prove all elements of the crime.

Second, the prosecutor did not vouch for the credibility of complaining witnesses by pointing to their demeanor and the consistency in their accounts; these comments were properly based on evidence presented to the jury. Taylor U. State, 2011 OK CR 8, I 57, 248 P.3d 362, 379; Bland v. State, 2000 OK CR 11, I 97, 4 P.3d 702, 728.

Third, the prosecutor’s assessment of the defense strategy as smoke and mirrors and intellectually disingenuous, and her statement, Ladies and gentlemen, she is guilty, were also fair inferences from the evidence presented. Harris U. State, 2000 OK CR 20, I 35, 13 P.3d 489, 498.

Fourth, assertions of the defendant’s guilt are not improper if they are made with reference to the 3 evidence presented. Williams U. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228.

Fifth, asking the jury to consider the long-term effects of the defendant’s conduct on the victim when assessing sentence was not plainly erroneous. Carol U. State, 1988 OK CR 114, I 10, 756 P.2d 614, 617. We note that the jury recommended a sentence less than the 40-year sentence requested by the prosecutor.

Finally, the prosecutor’s reference in the punishment stage to acquitted conduct (Count 2, the charge on which the jury found Appellant not guilty in the first stage of the trial) was not improper. The jury was still free to consider that conduct, because it was not an element the State had to prove beyond a reasonable doubt with regard to sentencing on Count 1. See Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). We find no error in the prosecutor’s comments such as would warrant any relief. Proposition III is denied.

In Proposition IV, Appellant faults trial counsel for not making objections to the issues raised in Propositions I, II, and III. To show trial counsel was ineffective, she must show both deficient performance and prejudice. Strickland U. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); White U. State, 2019 OK CR 2, I 23, 437 P.3d 1061, 1070. Because we found no merit to these substantive 4 complaints, trial counsel was not ineffective. Jackson U. State, 2016 OK CR 5, I 13, 371 P.3d 1120, 1123. Proposition IV is denied.

As to Proposition V, given Appellant’s conduct in this case, the sentence recommended by the jury (less than what the prosecutor requested) was not shocking to the conscience, and the trial court’s order that the sentence be served consecutively to Appellant’s sentence in an unrelated case was not an abuse of discretion. White, 2019 OK CR 2, I 29, 437 P.3d at 1072.

As to Proposition VI, because no error has been identified above, there can be no relief for cumulative error. Engles U. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315. Proposition VI is denied.

DECISION

The Judgment and Sentence of the District Court of Muskogee County 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. Wisdom U. State, 1996 OK CR 22, 99 17-20, 918 P.2d 384, 390;
  2. Marshall U. State, 2010 OK CR 8, I 58, 232 P.3d 467, 481.
  3. Bosse U. State, 2017 OK CR 10, 9 82, 400 P.3d 834, 863.
  4. Taylor U. State, 2011 OK CR 8, I 57, 248 P.3d 362, 379;
  5. Bland v. State, 2000 OK CR 11, I 97, 4 P.3d 702, 728.
  6. Harris U. State, 2000 OK CR 20, I 35, 13 P.3d 489, 498.
  7. Williams U. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228.
  8. Carol U. State, 1988 OK CR 114, I 10, 756 P.2d 614, 617.
  9. Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).
  10. Strickland U. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984);
  11. White U. State, 2019 OK CR 2, I 23, 437 P.3d 1061, 1070.
  12. Jackson U. State, 2016 OK CR 5, I 13, 371 P.3d 1120, 1123.
  13. White, 2019 OK CR 2, I 29, 437 P.3d at 1072.
  14. Engles U. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.8 - Sentencing for sexual offenses
  • Okla. Stat. tit. 22 § 3.15 - Mandate issuance
  • Okla. Stat. tit. 22 § 1089.1 - Procedures for post-conviction relief

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:

  • Wisdom v. State, 1996 OK CR 22, ¶ 17-20, 918 P.2d 384, 390
  • Marshall v. State, 2010 OK CR 8, ¶ 58, 232 P.3d 467, 481
  • Bosse v. State, 2017 OK CR 10, ¶ 82, 400 P.3d 834, 863
  • Taylor v. State, 2011 OK CR 8, ¶ 57, 248 P.3d 362, 379
  • Bland v. State, 2000 OK CR 11, ¶ 97, 4 P.3d 702, 728
  • Harris v. State, 2000 OK CR 20, ¶ 35, 13 P.3d 489, 498
  • Williams v. State, 2008 OK CR 19, ¶ 107, 188 P.3d 208, 228
  • Carol v. State, 1988 OK CR 114, ¶ 10, 756 P.2d 614, 617
  • Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)
  • Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
  • White v. State, 2019 OK CR 2, ¶ 23, 437 P.3d 1061, 1070
  • Jackson v. State, 2016 OK CR 5, ¶ 13, 371 P.3d 1120, 1123
  • Engles v. State, 2015 OK CR 17, ¶ 13, 366 P.3d 311, 315

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