Brian Keith Fullerton v The State Of Oklahoma

F-2018-629

Filed: Sep. 26, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Brian Keith Fullerton appealed his conviction for four counts of Lewd Acts with a Child Under Sixteen. His conviction and sentence were life imprisonment on each count, with two pairs of sentences served together and one pair served one after the other. Judge Kuehn wrote the opinion, and Judge Rowland dissented.

Decision

The Judgment and Sentence of the District Court of Oklahoma 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 sufficient evidence to sustain a conviction for both Count 1 and Count 2 lewd acts with a child under the age of sixteen?
• Was the information filed in the case sufficient to apprise Mr. Fullerton of the charges against him and allow him to plead former jeopardy?
• Did the prosecutors invoke improper sympathy toward the victim and appeal to the jury's emotions, violating Mr. Fullerton's right to a fair trial?
• Did trial errors, when considered in an accumulative fashion, warrant a new trial?

Findings

• the evidence was sufficient to support convictions on both counts
• there was no error in the specificity of the Information
• there was no plain error in the prosecution's closing argument
• there was no cumulative error warranting a new trial

F-2018-629

Sep. 26, 2019

Brian Keith Fullerton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE:

Appellant, Brian Keith Fullerton, was convicted by a jury in Oklahoma County District Court, Case No. CF-2016-4430, of four counts of Lewd Acts with a Child Under Sixteen. The Honorable Bill Graves, District Judge, sentenced him in accordance with the jury’s recommendation to life imprisonment on each count. Dividing the four counts into two pairs, the court ordered each pair of life terms to be served concurrently, but one pair to be served consecutively to the other. Appellant must serve 85% of each sentence before parole consideration.

Appellant raises four propositions of error in support of his appeal:

PROPOSITION I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION FOR BOTH COUNT 1 AND COUNT 2 LEWD ACTS WITH A CHILD UNDER THE AGE OF SIXTEEN (16) BECAUSE THE STATE FAILED TO PROVE MR. FULLERTON TOUCHED L.D. ON THE VAGINA MORE THAN ONE TIME.

PROPOSITION II. THE INFORMATION FILED IN THIS CASE WAS INSUFFICIENT AS IT FAILED TO APPRISE MR. FULLERTON OF WHAT HE WAS CHARGED WITH AND IS NOT SPECIFIC ENOUGH TO ALLOW HIM TO PLEAD FORMER JEOPARDY SHOULD THE STATE SEEK TO FILE OTHER CHARGES IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FEDERAL AND STATE CONSTITUTIONS.

PROPOSITION III. THE PROSECUTORS INVOKED IMPROPER SYMPATHY TOWARD THE VICTIM, L.D., AND APPEALED TO THE JURY’S EMOTIONS VIOLATING MR. FULLERTON’S RIGHT TO A FAIR TRIAL.

PROPOSITION IV. TRIAL ERRORS, WHEN CONSIDERED IN ACCUMULATIVE FASHION, WARRANT A NEW TRIAL.

After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was convicted of sexually abusing a four-year-old girl over a period of several months. In Proposition I, he claims the victim’s descriptions of the abuse were so vague that a jury could not reasonably find he had committed the acts described in Counts 1 and 2 more than once. We disagree. The victim’s many statements to family members, coupled with her statements to a forensic interviewer, and her illustration of the contact on an anatomical drawing, consistently point to the conclusion that Appellant committed the described conduct more than once. The evidence supports conviction on both counts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Applegate v. State, 1995 OK CR 49, ¶ 18, 904 P.2d 130, 136-37. Proposition I is denied.

As to Proposition II, since Appellant never challenged the specificity of the Information below, he has waived this complaint for all but plain error. Allen v. State, 1987 OK CR 45, ¶ 5, 734 P.2d 1304, 1306. Under plain-error review, Appellant must show that a plain or obvious error affected the outcome of the proceedings. Thompson v. State, 2018 OK CR 32, ¶ 6, 429 P.3d 690, 692. The factual allegations of the Information were sufficiently specific to enable Appellant to prepare a defense to the charges, and to advance a plea of former jeopardy to any subsequent charges of similar nature, involving the same victim at the same time and place. Kimbro v. State, 1990 OK CR 4, ¶ 8, 857 P.2d 798, 800. There is no error. Proposition II is denied.

As to Proposition III, Appellant claims the prosecutor’s final closing argument unfairly invoked sympathy for the victim. Appellant did not object to the prosecutor’s closing comments at the time, so we review for plain error. Harney v. State, 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. There was no plain error. So long as a prosecutor’s comments are based on the evidence presented, the fact that they might engender an emotional response is not necessarily grounds for relief. See Jackson v. State, 2007 OK CR 24, ¶ 27, 163 P.3d 596, 604. That was the case here. The prosecutor discussed the victim’s young age and intimidation at being called to testify in a courtroom full of strange adults, and the long-term effects of the abuse. These comments were based on what the jurors heard and saw. Proposition III is denied.

As to Proposition IV, having found no error in the preceding propositions, there can be no cumulative error. Tilford v. State, 1967 OK CR 91, ¶ 32, 437 P.2d 261, 268. Proposition IV is denied.

DECISION

The Judgment and Sentence of the District Court of Oklahoma 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. Jackson U. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Applegate U. State, 1995 OK CR 49, IT 18, 904 P.2d 130, 136-37.
2. Allen U. State, 1987 OK CR 45, I 5, 734 P.2d 1304, 1306.
3. Thompson U. State, 2018 OK CR 32, I 6, 429 P.3d 690, 692.
4. Kimbro U. State, 1990 OK CR 4, "I 8, 857 P.2d 798, 800.
5. Harney U. State, 2011 OK CR 10, "I 23, 256 P.3d 1002, 1007.
6. Jackson U. State, 2007 OK CR 24, I 27, 163 P.3d 596, 604.
7. Tilford U. State, 1967 OK CR 91, I 32, 437 P.2d 261, 268.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2011) - Lewd Acts with a Child Under Sixteen
• Okla. Stat. tit. 22 § 1053 (2011) - Rule of Criminal Procedure
• Okla. Stat. tit. 22 § 1115 (2011) - Mandates
• Okla. Stat. tit. 22 § 1054 (2011) - Plain Error

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:

• Jackson U. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
• Applegate U. State, 1995 OK CR 49, IT 18, 904 P.2d 130, 136-37
• Allen U. State, 1987 OK CR 45, I 5, 734 P.2d 1304, 1306
• Thompson U. State, 2018 OK CR 32, I 6, 429 P.3d 690, 692
• Kimbro U. State, 1990 OK CR 4, "I 8, 857 P.2d 798, 800
• Harney U. State, 2011 OK CR 10, "I 23, 256 P.3d 1002, 1007
• Jackson U. State, 2007 OK CR 24, I 27, 163 P.3d 596, 604
• Tilford U. State, 1967 OK CR 91, I 32, 437 P.2d 261, 268