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F-2018-823

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Ubaldo Hernandez v The State Of Oklahoma

F-2018-823

Filed: Jan. 30, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Ubaldo Hernandez appealed his conviction for Child Sexual Abuse. Conviction and sentence were upheld as 30 years in prison. Kuehn 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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an error in the admission of other bad acts evidence that prejudiced the jury and deprived Mr. Hernandez of his fundamental right to a fair trial?
  • Did prosecutorial misconduct deny Mr. Hernandez a fair trial?
  • Did Mr. Hernandez receive ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution?
  • Did the accumulation of errors deprive Mr. Hernandez of a fair proceeding?

Findings

  • the court did not err in admitting other bad acts evidence
  • the court did not find prosecutorial misconduct that denied a fair trial
  • the claims of ineffective assistance of counsel were not established
  • the cumulative effect of errors did not deprive Mr. Hernandez of a fair proceeding

F-2018-823

Jan. 30, 2020

Ubaldo Hernandez

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Ubaldo Hernandez, was convicted by a jury in Muskogee County District Court, Case No. CF-2016-608, of Child Sexual Abuse.1 On August 8, 2018, the Honorable Thomas H. Alford, District Judge, sentenced him to thirty years imprisonment, in accordance with the jury’s recommendation. He must serve 85% of this sentence before parole consideration. 21 O.S.Supp.2015, § 13.1(14). Appellant raises four propositions of error in support of his appeal:

PROPOSITION I. ADMISSION OF OTHER BAD ACTS EVIDENCE PREJUDICED THE JURY, DEPRIVED MR. HERNANDEZ OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL, AND WARRANTS REVERSAL OF THE SENTENCES.

1 Appellant was charged under 21 O.S. § 845.3(E). I continue to believe that the crime of child sexual abuse, as defined in 21 O.S. §§ 843.5(E) and (F), is unconstitutional. A.O. v State, 2019 OK CR 18, 447 P.3d 1179 (Kuehn, V.P.J., dissenting). However, the Majority of this Court does not agree. When reviewing convictions under these statutes I apply the current law on the basis of stare decisis.

PROPOSITION II. MR. HERNANDEZ WAS DENIED A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT.

PROPOSITION III. MR. HERNANDEZ RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION.

PROPOSITION IV. THE ACCUMULATION OF ERRORS DEPRIVED MR. HERNANDEZ OF A FAIR PROCEEDING.

After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was convicted of sexually abusing his daughter over a period of several years. In Proposition I, he claims the trial court erred by admitting various references to other bad acts which were not strictly part of the charge. As Appellant did not object to most of this evidence below, we review for plain error, which requires Appellant to show a plain or obvious violation of a legal rule that affected his substantial rights, i.e., the outcome of the trial. Daniels U. State, 2016 OK CR 2, I 3, 369 P.3d 381, 383. The victim did not make her allegations of sexual abuse until some years after it had begun. Part of the defense strategy was to question the veracity of her claims, given that she had many prior opportunities to report them. The victim testified about Appellant’s controlling character, his drinking problem, and the family dynamics in general in an effort to explain the delay. The prosecutor presented other family members to corroborate the victim on these issues; they also described incidents where Appellant was verbally abusive and/or intoxicated. The victim testified that the sexual abuse usually occurred when Appellant was drunk; one of Appellant’s former partners described seeing him passed out from alcohol, lying beside the victim on her bed. The evidence Appellant complains about does not rise to the level of criminal activity. His complaint really seems to be about the relevance of episodes of drunkenness and controlling behavior directed at, or witnessed by, family members other than the victim. But most of the incidents Appellant identifies were corroborative observations of events that the victim herself testified about (also with no objection from the defense). In short, most of the evidence complained of here was either corroboration of events described by the victim, or so closely related to those events as to be part of the res gestae.² Finally, we note that the trial court properly instructed the jury on the limited use of bad-acts evidence. Admitting other witnesses’ accounts of Appellant’s behavior, consistent with the victim’s own testimony, did not constitute plain error. White U. State, 2019 OK CR 2, I 15, 437 P.3d 1061, 1067-68. Proposition I is denied.

In Proposition II, Appellant lists numerous instances of prosecutor misconduct which he believes denied him a fair trial. There were no objections to any of these comments, so review is only for plain error, and relief is not warranted unless Appellant can show that the combined effect of these comments denied him a fair trial. Tafolla v. State, 2019 OK CR 15, I 28, 446 P.3d 1248, 1260. First, Appellant claims the prosecutor diminished the presumption of innocence. However, he fails to describe the comments he complains about, nor does he explain, with argument and legal authority, what is objectionable about them. We decline to examine this claim further. Rule 3.5(C)(6), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App. (2020). Second, Appellant claims the prosecutor sought sympathy for the victim by eliciting testimony that she had cried every time she had spoken with the prosecutor about the case. This testimony was only elicited on redirect, after defense counsel characterized the witness as a liar. It was not plainly improper for the prosecutor to rehabilitate her witness’s credibility with a specific instance of conduct relevant to a character trait brought up by the defense.³ 12 O.S.2011, §§ 2405, 2608. Appellant also claims the prosecutor elicited sympathy for the victim by eliciting testimony that because of this prosecution, the victim had been unable to visit her half-sister. It is not clear how this sought sympathy for the victim – who made the decision to come forward – particularly since the same line of questioning made it clear that Appellant had also been prevented from visiting the same relative. The prosecutor’s closing argument did not unfairly inject sympathy into the case, but rather reviewed the evidence which had been admitted without objection, which was entirely proper. Chadwell U. State, 2019 OK CR 14, H 10, 446 P.3d 1244, 1247. Finally, Appellant claims the prosecutor engaged in misconduct by eliciting the bad-acts evidence discussed in Proposition I. Our resolution of that proposition moots this argument. See Valdez v. State, 1995 OK CR 18, I 84, 900 P.2d 363, 386, overruled on other grounds, Taylor U. State, 2018 OK CR 6, 419 P.3d 265. In summary, there is no reasonable probability that the cumulative effect of the prosecutor’s questions and comments affected the outcome of the trial. Boyd U. State, 1992 OK CR 40, I 17, 839 P.2d 1363, 1368-69. Proposition II is denied.

In Proposition III, Appellant faults trial counsel for (1) failing to ensure a complete record of the proceedings, (2) failing to object to the prosecutor misconduct discussed in Proposition II, and (3) failing to object to the bad acts evidence discussed in Proposition I. To prevail on a claim of ineffective counsel, Appellant must show both deficient performance and a reasonable probability of resulting prejudice. In other words, he must show that counsel made an objectively unreasonable decision which undermines confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 694 (1984); Sanchez v. State, 2009 OK CR 31, 9 98, 223 P.3d 980, 1012. Failure to prove either deficient performance or resulting prejudice is fatal to an ineffective-counsel claim. Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206. The first claim relates to a reference, at sentencing, to an evidentiary ruling made before trial but not memorialized in the transcript. Appellant fails to show a reasonable probability that a more complete record on the matter would produce a different outcome. In fact, he does not even argue that the court’s pretrial ruling was error, even though the substance of the proffered evidence at issue is not in dispute. As to two remaining claims, because we have already found no reasonable probability that the evidence and commentary complained of in Propositions I and II affected the outcome of the trial, Appellant cannot show that trial counsel’s failure to object warrants relief. McElmurry U. State, 2002 OK CR 40, IT 164, 60 P.3d 4, 36. Finally, as to Proposition IV, having reviewed the totality of the evidence admitted without objection, we find no accumulation of error which would warrant relief in this case. Logsdon v. State, 2010 OK CR 7, I 42, 231 P.3d 1156, 1170. Proposition IV 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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Appellant was charged under 21 O.S. § 845.3(E).
  2. 21 O.S.Supp.2015, § 13.1(14).
  3. A.O. v State, 2019 OK CR 18, 447 P.3d 1179.
  4. Daniels U. State, 2016 OK CR 2, I 3, 369 P.3d 381, 383.
  5. White U. State, 2019 OK CR 2, I 15, 437 P.3d 1061, 1067-68.
  6. Tafolla v. State, 2019 OK CR 15, I 28, 446 P.3d 1248, 1260.
  7. Chadwell U. State, 2019 OK CR 14, H 10, 446 P.3d 1244, 1247.
  8. Valdez v. State, 1995 OK CR 18, I 84, 900 P.2d 363, 386.
  9. Boyd U. State, 1992 OK CR 40, I 17, 839 P.2d 1363, 1368-69.
  10. Strickland v. Washington, 466 U.S. 668, 694 (1984).
  11. Sanchez v. State, 2009 OK CR 31, 9 98, 223 P.3d 980, 1012.
  12. Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206.
  13. McElmurry U. State, 2002 OK CR 40, IT 164, 60 P.3d 4, 36.
  14. Logsdon v. State, 2010 OK CR 7, "I 42, 231 P.3d 1156, 1170.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 13.1 (2015) - Sentences for certain offenses
  • Okla. Stat. tit. 21 § 845.3 (2011) - Child sexual abuse
  • Okla. Stat. tit. 21 § 843.5 (2011) - Definitions and exemptions
  • Okla. Stat. tit. 12 § 2405 (2011) - Rules of evidence; admissibility of evidence
  • Okla. Stat. tit. 12 § 2608 (2011) - Rules of evidence; testimony of victim
  • Okla. Stat. tit. 22 § 3.5 (2020) - Rules of the Oklahoma Court of Criminal Appeals

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:

  • A.O. v State, 2019 OK CR 18, 447 P.3d 1179
  • Daniels U. State, 2016 OK CR 2, I 3, 369 P.3d 381
  • White U. State, 2019 OK CR 2, I 15, 437 P.3d 1061
  • Tafolla v. State, 2019 OK CR 15, I 28, 446 P.3d 1248
  • Chadwell U. State, 2019 OK CR 14, H 10, 446 P.3d 1244
  • Valdez v. State, 1995 OK CR 18, I 84, 900 P.2d 363
  • Taylor U. State, 2018 OK CR 6, 419 P.3d 265
  • Boyd U. State, 1992 OK CR 40, I 17, 839 P.2d 1363
  • Sanchez v. State, 2009 OK CR 31, 9 98, 223 P.3d 980
  • Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198
  • McElmurry U. State, 2002 OK CR 40, IT 164, 60 P.3d 4
  • Logsdon v. State, 2010 OK CR 7, "I 42, 231 P.3d 1156

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