Kenneth Oliver Ross v The State Of Oklahoma

F-2018-678

Filed: Nov. 21, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

#Kenneth Oliver Ross appealed his conviction for human trafficking of a minor and lewd molestation. Conviction and sentence were upheld by the court, which confirmed a total of 50 years imprisonment for human trafficking and additional sentences for other charges. #Judge Hudson dissented.

Decision

The Judgment and Sentence of the District Court of Tulsa 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 double punishment for the convictions of two counts of Lewd Molestation?
• Did the appellant suffer from being improperly charged and convicted of Child Human Trafficking instead of a more specific statute?
• Was there insufficient evidence to convict the appellant of Child Human Trafficking?
• Were the jury instructions regarding Human Trafficking adequate?
• Did the conviction for Child Human Trafficking violate the constitutional prohibition against ex post facto prosecution?
• Did the court abuse its discretion by giving a non-uniform jury instruction?
• Should the jury have been instructed on lesser included offenses of Child Human Trafficking?
• Should the jury have been instructed on lesser offenses of Lewd Molestation?
• Did the appellant lack notice of charges under the Human Trafficking statute?
• Is Oklahoma Statute Title 21, Section 748 unconstitutional as written and as applied?
• Was the sentence for Child Human Trafficking shockingly excessive?
• Was the appellant prejudiced by cumulative error?

Findings

• the court did not err regarding double punishment for two counts of Lewd Molestation
• the court did not err in charging and convicting Appellant of Human Trafficking
• evidence was sufficient to support the conviction for Child Human Trafficking
• the jury was properly instructed on the law regarding Human Trafficking
• there was no violation of the ex post facto prohibition concerning the conviction for Human Trafficking
• the court did not abuse its discretion in giving a non-uniform jury instruction
• the court did not err in failing to instruct the jury on lesser included offenses related to Human Trafficking
• the court did not err in refusing to instruct the jury on lesser offenses of Lewd Molestation
• Appellant had adequate notice of the Human Trafficking charges
• Oklahoma Statute Title 21, Section 748 is not unconstitutional as written or applied
• the 50-year sentence for Human Trafficking was not shockingly excessive
• there was no cumulative error sufficient to grant relief

F-2018-678

Nov. 21, 2019

Kenneth Oliver Ross

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN, VICE PRESIDING JUDGE:

Appellant, Kenneth Oliver Ross, was convicted by a jury in Tulsa County District Court, Case No. CF-2017-1413, of two counts of Lewd Molestation of a Minor (21 O.S.2011, § 1123) (Counts 1 and 3); one count of Assault and Battery (21 O.S.2011, § 645) (Count 4); and Human Trafficking of a Minor for Commercial Sex (21 O.S.Supp.2015, § 748(A)(6)) (Count 6). On June 25, 2018, the Honorable William D. LaFortune, District Judge, sentenced him in accordance with the jury’s recommendation as follows: Count 1, fourteen years imprisonment and a $10,000 fine; Count 3, twenty years imprisonment and a $10,000 fine; Count 4, ninety days in jail and a $1000 fine; and Count 6, fifty years imprisonment and a $50,000 fine. The sentences are to be served consecutively. Appellant must serve 85% of the sentences on Counts 1, 3, and 6 before parole consideration.

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

PROPOSITION I. MR. ROSS SUFFERED DOUBLE PUNISHMENT BY HIS CONVICTIONS OF TWO COUNTS OF LEWD MOLESTATION.

PROPOSITION II. MR. ROSS WAS IMPROPERLY CHARGED AND CONVICTED OF CHILD HUMAN TRAFFICKING IN VIOLATION OF OKLAHOMA STATUTE TITLE 21, SECTION 11, WHICH MANDATES THAT A SPECIFIC STATUTE TAKES PRECEDENCE OVER A MORE GENERAL STATUTE.

PROPOSITION III. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR. ROSS OF CHILD HUMAN TRAFFICKING.

PROPOSITION IV. THE UNIFORM JURY INSTRUCTIONS GIVEN TO THE JURY DID NOT FULLY AND SUFFICIENTLY EXPLAIN THE LAW, AND THE JURY WAS NOT PROPERLY INSTRUCTED ON THE COUNT OF CHILD HUMAN TRAFFICKING.

PROPOSITION V. CONVICTION FOR CHILD HUMAN TRAFFICKING VIOLATED THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO PROSECUTION, SINCE MR. ROSS WAS DEPRIVED OF HIS RIGHT TO PRESENT A DEFENSE UNDER THE STATUTE IN EFFECT AT THE TIME OF THE COMMISSION OF THE ACT.

PROPOSITION VI. THE COURT ABUSED ITS DISCRETION WHEN IT GAVE A NON-UNIFORM JURY INSTRUCTION THAT DID NOT ACCURATELY STATE THE LAW.

PROPOSITION VII. THE JURY SHOULD HAVE BEEN INSTRUCTED OF LESSER INCLUDED OFFENSES OF CHILD HUMAN TRAFFICKING.

PROPOSITION VIII. THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE LESSER OFFENSES OF LEWD MOLESTATION, AS REQUESTED BY DEFENSE COUNSEL.

PROPOSITION IX. MR. ROSS DID NOT HAVE NOTICE THAT HE WOULD HAVE TO DEFEND AGAINST CHARGES UNDER OKLAHOMA STATUTE TITLE 21, SECTION 748.

PROPOSITION X. OKLAHOMA STATUTE TITLE 21, SECTION 748 IS UNCONSTITUTIONAL, AS WRITTEN AND AS APPLIED TO MR. ROSS.

PROPOSITION XI. THE SENTENCE IMPOSED BY THE TRIAL COURT FOR CHILD HUMAN TRAFFICKING WAS SHOCKINGLY EXCESSIVE AND SHOULD BE FAVORABLY MODIFIED BY THIS COURT.

PROPOSITION XII. APPELLANT WAS PREJUDICED BY CUMULATIVE ERROR.

After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was convicted of sexually assaulting a 14-year-old girl, beating her, and attempting to enlist her into prostitution. At trial, he admitted having sexual relations with the girl but claimed he thought she was an adult. He denied beating her or trying to get her to work as a prostitute.

In Proposition I, Appellant claims his two convictions for Lewd Molestation constitute double punishment for the same offense, which is prohibited by 21 O.S.2011, § 11. He raised this complaint below, preserving it for appellate review. The two Lewd Molestation charges describe discrete acts of sexual abuse. The fact that they occurred in rapid succession does not mean Appellant cannot be punished for each one separately. Riley v. State, 1997 OK CR 51, ¶ 13, 947 P.2d 530, 533. Proposition I is denied.

In Proposition II, Appellant claims the conduct alleged in the Human Trafficking charge (Count 6) should have been prosecuted under 21 O.S. § 1087, Procuring a Minor for Prostitution, because that crime is more specifically tailored to the facts in this case. He cites 21 O.S.2011, § 11 in support of this argument. This claim was not made below, so it is reviewed for plain error. Appellant must demonstrate a plain and obvious deviation from a legal rule which prejudiced him; if he does, we may correct the error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Appellant’s argument is undermined by the plain language of § 11, which states that an act or omission which is made punishable in different ways by different provisions of this title may be punished under any of such provisions [with exceptions not applicable here]. Both Human Trafficking and Procuring a Minor for Prostitution are found in Title 21 of the Oklahoma Statutes. The prosecutor had discretion in which crime to charge. State v. Haworth, 2012 OK CR 12, ¶ 13, 283 P.3d 311, 316. Proposition II is denied.

In Propositions III and IV, Appellant takes issue with the legislative description of Human Trafficking as modern-day slavery. 21 O.S.Supp.2015, § 748(A)(4). In Proposition IV, he claims the trial court should have instructed the jury that before it could convict him of Human Trafficking, it had to find his conduct amounted to modern-day slavery. In Proposition III, he claims his interaction with the victim was an isolated event, and that the crime of Human Trafficking is aimed at something more extensive and organized. We disagree. The Legislature has described certain conduct punishable under the name of human trafficking – specifically, human trafficking for labor, human trafficking for commercial sex, and human trafficking of a minor for commercial sex. It has also described human trafficking as a sort of modern-day slavery. However, the latter description plays no part in deciding whether certain conduct actually constitutes the crime of Human Trafficking, whose variants are explicitly defined. The term modern-day slavery in the statute does not add to, or alter, the elements of the specific kind of human trafficking Appellant was charged with: human trafficking for commercial sex. The trial court did not plainly err by failing to craft a non-OUJI instruction on a non-element. Furthermore, we find no textual support for excepting single incidents from the reach of the Human Trafficking statute. Only one victim, and only one act, are necessary to complete the crime. Propositions III and IV are denied.

Appellant next complains because the trial court instructed the jury that ignorance of the victim’s age was not a defense to Human Trafficking of a Minor for Commercial Sex. In Proposition VI, he faults the trial court for amending the Uniform Jury Instructions to include this language. In Proposition V, he claims this instruction violated his constitutional protection from ex post facto laws. The latter claim is premised on the fact that the language added by the trial court resembles text added by the Legislature to the Human Trafficking statute in late 2017, after the conduct at issue here was committed. A law violates the constitutional bans on ex post facto legislation only when it (1) criminalizes an act, after the act was committed; (2) increases the severity of a crime after it was committed; (3) increases the punishment for a crime after it was committed; or (4) alters the rules of evidence, allowing conviction on less or different testimony than the law required at the time the act was committed. The 2017 amendment to § 748 did none of these things. While Appellant claimed he thought the victim was an adult, ignorance of the victim’s age has never been a defense to Human Trafficking of a Minor. There is no ex post facto problem here, and the trial court’s amendment to the jury instructions was proper as an accurate statement of the law. Propositions V and VI are denied.

In Proposition VII, Appellant claims the evidence presented at trial to support the Human Trafficking charge also supported a conviction on the lesser offense of Procuring a Minor for Prostitution (21 O.S.2011, § 1087), and that his jury should have been so instructed. Appellant never requested instructions on this alternative, so our review is only for plain error. When lesser-offense arguments are presented for the first time on appeal, this Court considers (1) whether the evidence reasonably supports the lesser option, and (2) whether any rational juror could have rejected evidence distinguishing the crime the defendant was convicted of from the lesser alternative. Assuming for the sake of argument that the evidence could have reasonably supported a conviction for Procuring a Minor for Prostitution, we find no reasonable probability that, faced with both options, the jury would have convicted Appellant of the lesser. The maximum sentence for Procuring a Minor for Prostitution is ten years. The minimum sentence for Human Trafficking of a Minor is fifteen years. The jury felt that Appellant’s conduct with regard to this charge warranted fifty years imprisonment—over three times the minimum. Such a punishment would not have been available to the jury with the lesser option. The trial court did not plainly err in failing to give jurors the lesser option, and Proposition VII is denied.

In Proposition VIII, Appellant claims the trial court erred in refusing his requested instructions on two lesser options to Lewd Molestation (Count 3): Contributing to the Delinquency of a Minor (21 O.S.2011, § 856) and Assault with Intent to Commit a Felony (21 O.S.2011, § 681). We disagree. The State’s evidence, if believed, showed that Appellant did more than encourage the victim to be a delinquent or runaway child; he told her to follow directions regarding selling her body, or risk being beaten. The evidence also showed that Appellant did not just attempt to sexually assault the victim, but that he actually did so. No rational juror could have found Appellant guilty of either lesser alternative on these facts. The trial court did not abuse its discretion in rejecting these instructions. Proposition VIII is denied.

In Proposition IX, Appellant notes that the Amended Information contained an incorrect statutory reference for the Human Trafficking charge. It does, but the error was noticed during trial, and defense counsel had no objection to correcting the scrivener’s error. We find no evidence that Appellant was prejudiced in any way. Proposition IX is denied.

In Proposition X, Appellant claims the Human Trafficking statute is unconstitutionally vague. He claims the phrase, modern-day slavery as used in the statute is so vague that it fails to put citizens on notice of what conduct is prohibited. The statute’s vagueness, he asserts, is illustrated by the fact that it appears to punish conduct already covered by other criminal laws. When a law is challenged on the grounds that it violates the Fifth Amendment right to fair notice of what is criminal, the traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it might conceivably be applied unconstitutionally to others in other situations. As discussed in Proposition IV, the term modern-day slavery plays no part in the actual legislative definitions of the ways in which Human Trafficking can be committed. And the fact that conduct punished as Human Trafficking may also be prosecuted under other laws does not render the statute unconstitutionally vague. We presume that a statute is constitutional. Appellant has not demonstrated otherwise. Proposition X is denied.

In Proposition XI, Appellant complains that his 50-year sentence for Human Trafficking is shockingly harsh. The State’s evidence – which the jury chose to believe – showed that Appellant forced a 14-year-old, mentally impaired girl to submit to sexual acts; that he beat her; and that he tried to force her into a life of prostitution. On these facts, the recommended sentence does not shock the conscience. Proposition XI is denied.

In Proposition XII, Appellant asks this Court to grant relief based on the accumulation of errors previously described. No error was identified in the preceding claims, so there can be no relief for cumulative error. Proposition XII is therefore denied.

DECISION

The Judgment and Sentence of the District Court of Tulsa 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. 21 O.S.2011, § 1123
2. 21 O.S.2011, § 645
3. 21 O.S.Supp.2015, § 748(A)(6)
4. 21 O.S.2011, § 11
5. 21 O.S.Supp.2015, § 748(A)(4)
6. 21 O.S.Supp.2015, § 748(A)(4)
7. 21 O.S.Supp.2015, § 748(C)
8. 21 O.S.2011, § 1087
9. 21 O.S.2011, § 856
10. 21 O.S.2011, § 681
11. 21 O.S.Supp.2017, § 748(F)
12. 21 O.S.2011, § 1087

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2011) - Lewd Molestation
• Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery
• Okla. Stat. tit. 21 § 748(A)(6) (Supp. 2015) - Human Trafficking of a Minor for Commercial Sex
• Okla. Stat. tit. 21 § 11 (2011) - Prohibition of Double Punishment
• Okla. Stat. tit. 21 § 1087 (2011) - Procuring a Minor for Prostitution
• Okla. Stat. tit. 21 § 748(A)(4) (Supp. 2015) - Legislative Description of Human Trafficking
• Okla. Stat. tit. 21 § 748(C) (Supp. 2015) - Sentencing for Human Trafficking
• Okla. Stat. tit. 21 § 856 (2011) - Contributing to the Delinquency of a Minor
• Okla. Stat. tit. 21 § 681 (2011) - Assault with Intent to Commit a Felony
• Okla. Stat. tit. 21 § 748(F) (Supp. 2017) - Knowledge of Victim's Age in Human Trafficking

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:

• Riley v. State, 1997 OK CR 51, I 13, 947 P.2d 530, 533.
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
• State v. Haworth, 2012 OK CR 12, I 13, 283 P.3d 311, 316.
• Littlejohn v. State, 2008 OK CR 12, II 12-13, 181 P.3d 736, 740-41.
• McHam v. State, 2005 OK CR 28, I 21, 126 P.3d 662, 670.
• Day v. State, 1989 OK CR 83, I 13, 784 P.2d 79, 83.
• Wilkins v. State, 1999 OK CR 27, I 6, 985 P.2d 184, 185.
• New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3360, 73 L.Ed.2d 1113 (1982).
• State v. Howerton, 2002 OK CR 17, I 18, 46 P.3d 154, 158.
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149.
• Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315.