Daniel Ross Dage v The State Of Oklahoma

F-2018-690

Filed: Oct. 10, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Daniel Ross Dage appealed his conviction for Possession of Juvenile Pornography. Conviction and sentence reversed and remanded for a jury trial. Judge Kuehn dissented.

Decision

The Judgment and Sentence of the District Court of Comanche County is REVERSED and the case is REMANDED for a jury trial. 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 a knowing and voluntary waiver of the right to a jury trial?
• Did the State present sufficient evidence to prove that Mr. Dage knowingly possessed videos of juvenile pornography?
• Was the 20-year sentence excessive under the United States and Oklahoma constitutions?

Findings

• The court erred in finding that Appellant knowingly and voluntarily waived his right to a jury trial.
• The evidence was sufficient to prove beyond a reasonable doubt that Appellant knowingly possessed videos of juvenile pornography.

F-2018-690

Oct. 10, 2019

Daniel Ross Dage

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Daniel Ross Dage was tried by judge and convicted of Possession of Juvenile Pornography in violation of 21 O.S.2011, § 1021.2, in the District Court of Comanche County, Case No. CF-2017-587. The Honorable Gerald Neuwirth sentenced Appellant to twenty (20) years imprisonment, with eight (8) years suspended, and a fine of $5,000.00. Appellant is also subject to sex offender registration and two years of post-imprisonment supervision during his suspended sentence. Appellant appeals from this conviction and sentence. Appellant raises three propositions of error in support of his appeal:

I. The record in this case does not sufficiently demonstrate that Appellant knowingly and voluntarily waived his right to a jury trial.

II. The State’s evidence was insufficient to prove beyond a reasonable doubt that Mr. Dage knowingly possessed videos of juvenile pornography.

III. Under the facts of this case, a sentence of 20 years is excessive in violation of the United States and Oklahoma constitutions.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the case must be reversed and remanded for a jury trial. We find that Proposition I must be granted. The State concedes this issue. While a defendant may waive his constitutional right to a jury trial, the waiver must be competent, knowing, intelligent, and on the record. Hinsley U. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355; Valega U. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119. In addition, the record must show that the State and the court consented to the waiver of jury trial. Hinsley, I 7, 280 P.3d at 356. A minimum showing of a defendant’s waiver would include an advisement of rights and a court minute reflecting waiver, acknowledged by signatures of defendant and counsel. Hinsley, I 6, 280 P.3d at 356. As the State concedes, the record is completely devoid of anything resembling either a waiver or consent by the parties. There is no written advisement of jury trial rights in the record. The trial transcript contains no record of any discussion regarding jury trial rights or waiver. The record fails to sufficiently show Appellant validly waived his right to a trial by jury. This proposition is granted and the case remanded for a jury trial.

We briefly address Proposition II. The State was required to show that Appellant knowingly possessed child pornography. 21 O.S.2011, § 1021.2. Appellant argues that the State failed to show he actually possessed the pornography. One can reasonably infer from the evidence that Appellant knew of the presence and prohibited nature of the material, and the record does not suggest that any other person reasonably had access to the USB drives. Hamilton v. State, 2016 OK CR 13, I 4, 387 P.3d 903, 905. Taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Appellant possessed juvenile pornography. Easlick v. State, 2004 OK CR 21, 15, 90 P.3d 556, 559. This proposition is denied. Given our resolution of Proposition I, Proposition III is moot.

DECISION

The Judgment and Sentence of the District Court of Comanche County is REVERSED and the case is REMANDED for a jury trial. 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.

AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY THE HONORABLE GERALD NEUWIRTH, DISTRICT JUDGE

ATTORNEYS AT TRIAL

LARRY CORRALES
P.O. BOX 2095
LAWTON, OK 73502

ATTORNEYS ON APPEAL

NANCY WALKER-JOHNSON
P.O. BOX 926
NORMAN, OK 73070

COUNSEL FOR DEFENDANT

CHRISTINE GALBRAITH
MIKE HUNTER
ASST. DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLA.
COMANCHE CO. COURTHOUSE
DIANE L. SLAYTON
ASST. ATTORNEY GENERAL
315 SW 5TH ST., RM 502
LAWTON, OK 73501-4360
313 NE 21 ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY KUEHN, V.P.J.

LEWIS, P.J.: CONCUR
LUMPKIN, J.: CONCUR
HUDSON, J.: CONCUR
ROWLAND, J.: CONCUR

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Footnotes:

1. Hinsley U. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355;
2. Valega U. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119.
3. Hamilton v. State, 2016 OK CR 13, I 4, 387 P.3d 903, 905.
4. Easlick v. State, 2004 OK CR 21, 15, 90 P.3d 556, 559.
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1021.2 - Possession of Juvenile Pornography

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:

• Hinsley v. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355
• Valega v. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119
• Hamilton v. State, 2016 OK CR 13, I 4, 387 P.3d 903, 905
• Easlick v. State, 2004 OK CR 21, 15, 90 P.3d 556, 559