Bryon Lynd Gordon v The State Of Oklahoma

F-2018-624

Filed: Oct. 3, 2019

For publication

Prevailing Party: The State Of Oklahoma

Summary

Bryon Lynd Gordon appealed his conviction for Forcible Oral Sodomy. Conviction and sentence were affirmed by the court, with the opinion noting multiple errors presented by Gordon but ultimately deeming them harmless. Judge Lewis dissented on some points.

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. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in ruling the alleged victim competent to testify without inquiry?
• Did the magistrate abuse its discretion by considering testimony from an alleged victim deemed incompetent during the preliminary hearing?
• Did the trial court abuse its discretion by admitting unreliable hearsay without a proper inquiry into its reliability?
• Was there sufficient corroboration for the testimony of the alleged victim to support the conviction?
• Did the trial court fail to properly instruct the jury, violating the appellant's due process rights?
• Was there prejudicial testimony from a witness vouching for the credibility of the alleged victim?
• Was the appellant denied his right to effective assistance of counsel?
• Did cumulative errors deprive the appellant of a fair proceeding and reliable outcome?

Findings

• the trial court did not abuse its discretion in ruling the victim competent to testify
• the claim regarding the preliminary hearing magistrate's consideration of alleged victim testimony was waived
• the trial court's admission of hearsay evidence was error but deemed harmless
• the evidence was sufficient to support the conviction
• the trial court's failure to instruct the jury on prior inconsistent statements did not constitute plain error
• there was no plain error in the testimony vouching for the credibility of R.S.
• the claim of ineffective assistance of counsel was denied
• cumulative errors did not deprive Mr. Gordon of a fair proceeding
• the JUDGMENT and SENTENCE is AFFIRMED

F-2018-624

Oct. 3, 2019

Bryon Lynd Gordon

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

q1 Appellant, Bryon Lynd Gordon, was tried by jury and convicted of Count 1, Forcible Oral Sodomy, in violation of 21 O.S.Supp.2016, § 888,1 in the District Court of Bryan County Case Number CF-2017-64. The jury recommended as punishment ten years imprisonment. The trial court sentenced Appellant accordingly. It is from this judgment and sentence that Appellant appeals.

1 Appellant must serve 85% of his sentence in Count 1 before becoming eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1. The trial court granted Appellant’s demurrer to Count 2, Second Degree Rape, at the conclusion of the State’s case.

q2 Appellant raises the following propositions of error in this appeal:
I. The trial court abused its discretion by ruling, without inquiry, that the alleged victim was competent to testify at jury trial violating the Sixth Amendment of the United States Constitution, Article 2, § 20 of the Oklahoma Constitution, and 12 O.S.2011, §§ 2601-2603.
II. The Magistrate abused its [sic] discretion by considering testimony from an alleged victim who was incompetent during preliminary hearing, in violation of the Sixth Amendment of the United States Constitution, Article 2, § 20 of the Oklahoma Constitution, and 12 O.S.2011, §§ 2601-2603.
III. The trial court abused its discretion when it allowed the admission of unreliable hearsay without exception and introduced without inquiring into the reliability of the hearsay statements, in violation of 21 O.S.Supp. 2013, § 2803.1.
IV. Because the testimony and statements of the alleged victim were inconsistent, incredible, and unbelievable, corroboration was required. The testimony was not adequately corroborated and therefore the evidence was insufficient to support the conviction.
V. Error occurred when the trial court failed to properly instruct the jury, in violation of Mr. Gordon’s due process rights under the 14th Amendment to the United States Constitution and Art. II, § 7, of the Oklahoma Constitution.
VI. Mr. Gordon was prejudiced by Vicki Palmore’s testimony vouching for the credibility of R.S.
VII. Mr. Gordon was denied his right to the effective assistance of counsel, in violation of the 6th and 14th Amendments to the United States Constitution and Art. II, §§ 7, 9, and 20, of the Oklahoma Constitution.
VIII. Cumulative errors deprived Mr. Gordon of a fair proceeding and a reliable outcome.

g After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

q4 In Proposition One, Appellant contends the trial court committed an abuse of discretion by not making an inquiry regarding the victim’s, R.S.’s, competency to testify.2 Prior to trial, Appellant requested the trial court to hold an in camera hearing to determine if R.S. was able to differentiate between truth and fiction. The trial court denied the motion, finding the preliminary hearing court determined that R.S. was a competent witness, either expressly or by virtue of the fact that the magistrate allowed R.S. to testify.

q5 Determination of a witness’ competency to testify is a matter of discretion for the trial judge and that determination will not be disturbed unless the party asserting error shows a clear abuse of discretion. Gilson U. State, 2000 OK CR 14, I 59, 8 P.3d 883, 906. 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 v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170 (internal citation and quotation marks omitted).

q6 Reviewing the record, we find the trial court did not abuse its discretion in finding R.S. to be a competent witness. The Oklahoma Statutes provide, [e]very person is competent to be a witness except as otherwise provided in this Code. 12 O.S.2011, § 2601. A witness must have personal knowledge of the matter about which he is testifying. 12 O.S.2011, § 2602. Every witness shall be required to declare before testifying that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so. 12 O.S.2011, § 2603.

q7 Although our cases have not addressed the competency of a witness with Down Syndrome, we have many that address the competency of child witnesses.3 A child is a competent witness under 12 O.S.1991, § 2603, if he or she can distinguish truth from fiction, has taken an oath, and demonstrated that he or she has personal knowledge of the crime. Gilson, 2000 OK CR 14, I 59, 8 P.3d at 906. See also Hawkins v. State, 1994 OK CR 83, If 27, 891 P.2d 586, 594-95; Dunham v. State, 1988 OK CR 211, I 8, 762 P.2d 969, 972.

q8 The record shows that R.S. was competent to testify. The preliminary hearing magistrate administered the oath to R.S. and he swore to tell nothing but the truth. R.S. told the prosecutor he did not lie but only told the truth. He further told the prosecutor that when people tell lies, they go to Hell. R.S. demonstrated his personal knowledge of the crime when he testified how Appellant put his penis into R.S.’s mouth.

q9 That R.S.’s testimony may have been inconsistent in some respects does not affect his competency as a witness but only goes to the weight and credibility of his testimony, which may properly be addressed on cross-examination. Gilson, 2000 OK CR 14, I 60, 8 P.3d at 907.

q10 R.S. similarly demonstrated his competence as a witness at trial. R.S. received the oath and swore to tell the truth. He demonstrated that he knew the difference between the truth and a lie. When asked by the prosecutor whether it would be okay if she told a lie that R.S. did something wrong, R.S. answered in the negative. R.S. established his personal knowledge of the crime when he testified that Appellant touched R.S.’s mouth with his penis and had his penis in R.S.’s mouth.

q11 While there may have been inconsistencies in R.S.’s trial testimony, they were squarely before the jury and it was for the jury to decide R.S.’s credibility and the weight to give his testimony. Cf. Gray U. State, 1982 OK CR 137, I 23, 650 P.2d 880, 885.

q12 Although it was error for the trial court to deny the defense motion for a hearing on R.S.’s competence as a witness, we find the error was harmless. The above record demonstrates R.S. was a competent witness and further discussion in Proposition Three also supports our finding of harmlessness due to the trial court’s failure to hold a hearing as requested by the defense. Proposition One is denied.

q13 In Proposition Two, Appellant claims the preliminary hearing magistrate abused his discretion by considering testimony from an incompetent witness in making his bind over decision. Appellant did not file a motion to quash challenging the sufficiency of the evidence at preliminary hearing prior to entering his plea at formal arraignment. This Court has previously reviewed claims concerning irregularities at preliminary hearing where there was no motion to quash and a plea entered at formal arraignment for plain error, i.e., Burgess v. State, 2010 OK CR 25, I 16, 243 P.3d 461, 464 and Primeaux U. State, 2004 OK CR 16, I 18, 88 P.3d 893, 900. However, our jurisprudence on this matter leads us to conclude that these claims are waived and not subject to plain error review. See Berry U. State, 1992 OK CR 41, I 9, 834 P.2d 1002, 1005.

q14 We now hold that where there is no motion to quash filed after preliminary hearing and the appellant enters a plea at formal arraignment, unless additional time in which to enter a plea or file motions is reserved by the defense or set by the magistrate to allow for the filing of additional motions, any irregularities in the preliminary hearing process are waived from appellate review. This procedure follows our historical precedent and ensures any challenges to the preliminary hearing are presented to the trial judge.

q15 In Proposition Three, Appellant argues that hearsay was improperly admitted in the form of his mother Vicki Palmore’s testimony about what R.S. told her initially regarding Appellant’s abuse of him and the video of R.S.’s forensic interview (State’s Exhibit 2). He maintains this evidence was inadmissible since the State failed to provide the notice required by 12 O.S.Supp.2013, § 2803.1 and the trial court failed to hold the hearing required by that section.

q16 Defense counsel objected to Palmore’s testimony on the basis of hearsay. He objected to the video of the interview on the basis of violation of the statutory requirements of Section 2803.1. In this appeal, however, Appellant challenges Palmore’s testimony on the basis of a violation of the statutory requirements of Section 2803.1. Thus, we review the claim regarding Palmore’s testimony for plain error only. Hill U. State, 1995 OK CR 28, I 26, 898 P.2d 155, 164.

q17 This Court has determined that the list of permissive factors set forth in § 2803.1 is not exclusive. State U. Juarez, 2013 OK CR 6, I 9, 299 P.3d 870, 873. Instead, the trial court is to determine whether 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.

q18 Error occurred in this case not only because the State failed to provide notice as required by Section 2803.1, but also because the trial court failed to hold the statutorily required hearing. The State concedes that omission of the notice and hearing constituted error but argues that these errors were harmless since the defense had constructive notice of the statements and since the statements bore sufficient indicia of reliability so as to render them inherently trustworthy and thus, the statements were properly admissible.

q19 Reviewing the record in the present case, we find that the omissions did not have a substantial influence on the outcome of the trial and thus conclude that the errors were harmless. The record affirmatively establishes that Appellant had constructive notice of the State’s intention to introduce the challenged statements at trial and that the statements were inherently trustworthy.

q20 Palmore testified at preliminary hearing that R.S. told her he and Appellant were having sex. Additionally, Palmore’s name was included in the State’s discovery response filed two weeks prior to trial. The response included the statement that Palmore would testify in accordance with the reports and interviews attached to the response.

q21 As previously shown, at preliminary hearing R.S. acknowledged that he and Appellant had a relationship that involved sex and that he told Palmore about it. R.S. testified that Appellant had sex with him and put his penis in R.S.’s mouth. The record is devoid of evidence that R.S. had a motivation to lie.

q22 In Proposition Four, Appellant challenges the sufficiency of the evidence supporting his conviction. He does not take issue with proof of the elements of the crime. He argues only that R.S.’s testimony was not corroborated and his testimony about the crime was contradictory and inconsistent.

q23 Reviewing the record in the present case, we find that R.S.’s testimony did not require corroboration. His account was lucid, clear, and unambiguous. Although R.S.’s testimony was not perfect, his overarching description of the sexual act perpetrated by Appellant upon him remained consistent throughout his many statements.

q24 In Proposition Five, Appellant claims the trial court should have instructed the jury with Instruction No. 9-20, OUJI-CR (2d) regarding the use of R.S.’s prior inconsistent statements as impeachment evidence.

q25 Appellant’s failure to cite to the record with regard to the above complained of inconsistencies, results in waiver of those issues from appellate review. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018).

q26 In Proposition Six, Appellant contends Palmore vouched for R.S.’s credibility. He argues Palmore affirmatively stated she believed R.S. was telling the truth about the allegations against Appellant. Appellant did not object to the testimony at issue; therefore, we review this claim for plain error.

q27 In Proposition Seven, Appellant maintains that his counsel was ineffective. He argues counsel failed to do the following: to request Instruction No. 9-20, OUJI-CR (2d), to object to Palmore’s testimony that R.S. was telling the truth about the allegations against Appellant, and to question R.S. regarding prior accusations of sexual assault against anyone besides Appellant.

q28 In his last proposition, Appellant argues the cumulative effect of the errors in this case deprived him of a fair trial. Although we found four errors, the errors were harmless and did not affect Appellant’s substantial rights.

DECISION

[48 The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 Appellant must serve 85% of his sentence in Count 1 before becoming eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1.
2. 2 R.S. has Down Syndrome.
3. 3 Vicki Palmore testified at preliminary hearing that her son R.S. had the mental age of a five or six year old child.
4. 4 The Oklahoma Statutes provide, "[e]very person is competent to be a witness except as otherwise provided in this Code." 12 O.S.2011, § 2601.
5. 5 "Every witness shall be required to declare before testifying that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so." 12 O.S.2011, § 2603.
6. 6 Once a child has taken an oath and has personal knowledge of the matters at issue, "[i]t is then for the jury to decide the amount of credence to be afforded such testimony".
7. 7 Error occurred when the trial court failed to properly instruct the jury, in violation of Mr. Gordon's due process rights under the 14th Amendment to the United States Constitution and Art. II, § 7, of the Oklahoma Constitution.
8. 8 A child victim's testimony does not require corroboration when it is lucid, clear, and unambiguous. Applegate U. State, 1995 OK CR 49, I 16, 904 P.2d 130, 136.
9. 9 "It is not conceivable that the appellant was surprised or prejudiced" by the alleged error; Money U. State, 1985 OK CR 46, I 5, 700 P.2d 204, 206.
10. 10 Evidence is impermissible vouching only if the jury could reasonably believe that a witness is indicating a personal belief in another witness's credibility. Simpson U. State, 2010 OK CR 6, IT 36, 230 P.3d 888, 901.
11. 11 "No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." 20 O.S.2011, § 3001.1.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 888 (2016) - Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 13.1 (2015) - Parole Eligibility
• Okla. Stat. tit. 12 § 2601 (2011) - Competency to Testify
• Okla. Stat. tit. 12 § 2602 (2011) - Personal Knowledge of the Matter
• Okla. Stat. tit. 12 § 2603 (2011) - Oath of Witness
• Okla. Stat. tit. 21 § 2803.1 (2013) - Hearsay Statements by Incapacitated Persons
• Okla. Stat. tit. 20 § 3001.1 (2011) - Grounds for Setting Aside Judgment

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 17 U.S.C. § 107 (2012) - Fair Use

Other citations:

No other rule citations found.

Case citations:

• Gilson v. State, 2000 OK CR 14, I 59, 8 P.3d 883, 906
• Hawkins v. State, 1994 OK CR 83, If 27, 891 P.2d 586, 594-95
• Dunham v. State, 1988 OK CR 211, I 8, 762 P.2d 969, 972
• Gray v. State, 1982 OK CR 137, I 23, 650 P.2d 880, 885
• Burgess v. State, 2010 OK CR 25, I 16, 243 P.3d 461, 464
• Primeaux v. State, 2004 OK CR 16, I 18, 88 P.3d 893, 900
• Berry v. State, 1992 OK CR 41, I 9, 834 P.2d 1002, 1005
• Money v. State, 1985 OK CR 46, I 5, 700 P.2d 204, 206
• Crawford v. State, 1984 OK CR 89, I 14, 688 P.2d 347, 350
• Hambrick v. State, 1975 OK CR 86, I 11, 535 P.2d 703, 705
• Thompson v. State, 2018 OK CR 5, I 4, 419 P.3d 261, 262
• Brennan v. State, 1988 OK CR 297, I 7, 766 P.2d 1385, 1387
• Hill v. State, 1995 OK CR 28, I 26, 898 P.2d 155, 164
• Simpson v. State, 1994 OK CR 40, I 2, II 2, 11, 23 30, 876 P.2d 690, 693-95, 698, 700-01
• Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
• Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Pullen v. State, 2016 OK CR 18, I 10, 387 P.3d 922, 927
• Spears v. State, 1991 OK CR 13, II 5-7, 805 P.2d 681, 683
• Kennedy v. State, 1992 OK CR 67, I 17, 839 P.2d 667, 671
• J.J.J. v. State, 1989 OK CR 77, I 5, 782 P.2d 944, 945-946
• Easlick v. State, 2004 OK CR 21, I 5, 90 P.3d 556, 559
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Taylor v. State, 2011 OK CR 8, I 13, 248 P.3d 362, 368
• Martin v. State, 1987 OK CR 265, I 6, 747 P.2d 316, 318
• Jones v. State, 1988 OK CR 281, 10, 765 P.2d 800, 802
• Applegate v. State, 1995 OK CR 49, I 16, 904 P.2d 130, 136
• Ray v. State, 1988 OK CR 199, IT 8, 762 P.2d 274, 277
• Gilmore v. State, 1993 OK CR 27, I 12, 855 P.2d 143, 145
• Runnels v. State, 2018 OK CR 27, I 38, 426 P.3d 614, 623-24
• Lee v. State, 2018 OK CR 14, I 14, 422 P.3d 782, 786
• Bosse v. State, 2017 OK CR 19, I 2, 406 P.3d 26