Anthony Bruce Henson, Sr. v The State Of Oklahoma

F-2018-835

Filed: Jan. 9, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Anthony Bruce Henson, Sr. appealed his conviction for sexual abuse of a child and child abuse. His conviction and sentence included life imprisonment for multiple counts and six years for one count. Judge William J. Musseman, Jr. was in charge of the case. Henson argued that the trial court made mistakes by allowing certain evidence, giving improper jury instructions, imposing excessive sentences, and that he did not get good legal help. However, the court did not find any errors that changed the case's outcome or made the sentences unfair. The decision to uphold the conviction and sentences was affirmed by the court. Judge Hudson wrote a different opinion, but agreed with the result.

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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there error in admitting "bad act" evidence in the form of pornography that violated the Oklahoma Evidence Code and due process?
• Did the trial court err in its jury instruction regarding the "other crimes" evidence?
• Are Anthony's consecutive life sentences excessive and in need of modification?
• Was Anthony deprived of effective assistance of counsel during the trial?

Findings

• The court did not err in admitting instances of "bad act" evidence of child pornography.
• The trial court did not err in using the limiting instruction for the other crimes evidence, and the error did not affect the outcome of the trial.
• The consecutive life sentences are not excessive and do not shock the conscience of the Court.
• The claim of ineffective assistance of counsel was denied as there was no reasonable probability the outcome would have been different.

F-2018-835

Jan. 9, 2020

Anthony Bruce Henson, Sr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN LEWIS, PRESIDING JUDGE:

Anthony Bruce Henson, Sr., Appellant, was tried by jury and found guilty of Counts 1 through 6, sexual abuse of a child under twelve (12), in violation of 21 O.S.Supp.2014, § 843.5(F); and Count 7, child abuse, in violation of 21 O.S.Supp.2014, § 843.5(A), in the District Court of Tulsa County, Case No. CF-2017-3127. The jury sentenced Appellant to life imprisonment and a $1,000.00 fine in each of Counts 1 through 6, and six (6) years imprisonment on Count 7. The Honorable William J. Musseman, Jr., District Judge, pronounced judgment and ordered the sentences of imprisonment served consecutively, but did not impose the fines.

Mr. Henson appeals in the following propositions of error:

1. The District Court erred in admitting instances of bad act evidence in the form of pornography which violated provisions of the Oklahoma Evidence Code and denied Appellant due process and a fair trial under the Fourteenth Amendment to the Oklahoma Constitution;
2. The District Court’s jury instruction regarding the other crimes evidence was erroneous. Not only was the evidence inadmissible, but even if it was, the court did not limit the purpose of its admission in the instruction, but allowed the jury to consider it for any matter to which it is relevant;
3. Anthony’s consecutive life sentences are excessive and should be modified;
4. Anthony was deprived of effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Appellant argues in Proposition One that the trial court erred in admitting other crimes evidence of his possession of child pornography on a cell phone. Counsel did not object when the evidence was offered at trial, waiving all but plain error. Simpson U. State, 1994 OK CR 40, I 2, 876 P.2d 690, 692-93. Appellant must now show that plain or obvious error in admitting this evidence affected the outcome of the trial. This Court will only correct plain error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. We find no plain or obvious error in the admission of this evidence to show Appellant’s motive or intent to commit the charged crimes. 12 O.S.2011, § 2404(B); Underwood v. State, 2011 OK CR 12, I 50, 252 P.3d 221, 243 (finding defendant’s possession of pornography and perverse internet images was proper to show motive and intent in sexually-motivated slaying). Proposition One is denied.

In Proposition Two, Appellant argues that the trial court used an incorrect limiting instruction for the other crimes evidence of possessing child pornography. Counsel actually requested this instruction at trial, waiving all but plain error, as defined above. The trial court plainly erred in using a slightly modified version of OUJI-Cr (2d) Instruction No. 9-10A, the uniform limiting instruction for prior molestation or sexual assault evidence admitted under 12 O.S., sections 2413-2414, when it should have used OUJI-Cr (2d) Instruction No. 9-9, the limiting instruction for evidence of other crimes admitted under 12 O.S., section 2404. However, we find that this error did not seriously affect the fairness, integrity, or public reputation of the proceedings, or otherwise result in a miscarriage of justice. Relief for this error is unwarranted. Proposition Two is denied.

In Proposition Three, Appellant claims his six consecutive life sentences are excessive. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Pullen U. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928. Appellant’s sentences are within the range of punishment provided by law for these heinous crimes. We find the sentences here are not excessive. Proposition Three is denied.

In Proposition Four, Appellant argues that trial counsel was ineffective for failing to (1) object to the other crimes evidence; and (2) request a proper limiting instruction. Reviewing this claim under the deficient performance and prejudice test of Strickland U. Washington, 466 U.S. 668, 687 (1984), we find no reasonable probability that, but for counsel’s arguably deficient performance in one or both of these respects, the outcome of the trial or sentencing would have been different. Proposition Four is therefore denied.

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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

OPINION BY: LEWIS, P.J.

KUEHN, V.P.J.: Concur

LUMPKIN, J.: Concur in Results

HUDSON, J.: Concur

ROWLAND, J.: Concur

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Footnotes:

1. 21 O.S.Supp.2014, § 843.5(F)
2. 21 O.S.Supp.2014, § 843.5(A)
3. 22 O.S.Supp.2015, § 13.1(14)
4. 12 O.S., sections 2413-2414
5. 12 O.S., section 2404
6. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928
7. Strickland v. Washington, 466 U.S. 668, 687 (1984)
8. Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 692-93
9. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923
10. Underwood v. State, 2011 OK CR 12, ¶ 50, 252 P.3d 221, 243

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(F) - Sexual Abuse of a Child Under Twelve
• Okla. Stat. tit. 21 § 843.5(A) - Child Abuse
• Okla. Stat. tit. 22 § 13.1(14) - Parole Eligibility
• Okla. Stat. tit. 12 § 2404(B) - Evidence of Other Crimes
• Okla. Stat. tit. 12 § 2413 - Evidence of Prior Crimes
• Okla. Stat. tit. 12 § 2414 - Evidence of Prior Crimes

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:

• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 692-93
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Underwood v. State, 2011 OK CR 12, I 50, 252 P.3d 221, 243
• Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928
• Strickland v. Washington, 466 U.S. 668, 687 (1984)