Justin William Dunlap v The State of Oklahoma

F-2018-888

Filed: Feb. 6, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Justin William Dunlap appealed his conviction for First Degree Rape by Instrumentation of a Victim under the Age of Fourteen. His conviction and sentence were upheld, and he will have to serve ten years in prison. Judge Kuehn dissented on some points.

Decision

The Judgment and Sentence of the District Court is hereby AFFIRMED. The Application for Evidentiary Hearing pursuant to Rule 3.11(B)(3)(b) is DENIED. 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 insufficient record supporting a waiver of a trial by jury?
• did the testimony meet the standard of beyond a reasonable doubt to support the conviction?
• did prosecutorial misconduct cost the appellant a fair trial?
• was the sentence excessive?
• was the defense prohibited from presenting a defense?
• was the appellant denied his federal and state constitutional rights to a speedy trial?
• should the appellant's competency have been tested under standard procedures?
• did a conflict of interest regarding defense counsel deprive the appellant of a fair trial?
• was there ineffective assistance of counsel that deprived the appellant of a fair trial?
• did cumulative error deprive the appellant of a fair trial?

Findings

• The court did not err in accepting Appellant’s waiver of a jury trial as it was knowing and voluntary.
• The evidence was sufficient to support Appellant’s conviction for First Degree Rape by Instrumentation.
• The court found no prosecutorial misconduct that denied Appellant a fair trial.
• The sentence imposed was not excessive under the circumstances of the case.
• Appellant was not denied the right to present a defense as the trial court's ruling on evidence admission was correct.
• Appellant's right to a speedy trial was not violated.
• The claim regarding competency evaluation was waived as it was unsupported by the trial record.
• Claims of conflict of interest regarding defense counsel were not supported, therefore no error was found.
• Appellant's claims of ineffective assistance of counsel were denied due to lack of merit.
• No cumulative error occurred as all individual claims raised were found without merit.

F-2018-888

Feb. 6, 2020

Justin William Dunlap

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN LUMPKIN, JUDGE:

Appellant, Justin William Dunlap, was tried by the court and convicted of Count 1, First Degree Rape by Instrumentation of a Victim under the Age of Fourteen, in violation of 21 O.S.2001, § 1114, in Creek County District Court, Case No. CF-2017-71. The trial court sentenced Appellant to ten years imprisonment. From this judgment and sentence Appellant appeals.

Appellant raised the following propositions of error in this appeal:

I. The record supporting a waiver of a trial by jury was insufficient.

II. The testimony of D.H. was not credible enough to meet the standard of beyond a reasonable doubt; thus, the conviction must be reversed.

III. Prosecutorial misconduct cost appellant a fair trial.

IV. The sentence was excessive.

V. The defense was prohibited from presenting a defense.

VI. Appellant was denied his federal and state constitutional rights to a speedy trial.

VII. Mr. Dunlap’s competency should have been tested under standard procedures.

VIII. A conflict of interest regarding defense counsel deprived Appellant of a fair trial.

IX. Ineffective assistance of counsel deprived Appellant of a fair trial.

X. Cumulative error deprived Appellant of a fair trial.

After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

Appellant contends in his first proposition that the record is insufficient to show his waiver of jury trial was knowing and voluntary. As Appellant failed to object prior to the non-jury trial, review of this claim is for plain error as set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Under the Simpson test, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice.

A defendant may waive his right to jury trial. There must be a clear showing that the waiver was competent, knowing and intelligent. Hinsley v. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355. A record showing an intelligent, competent and knowing waiver of a fundamental right is mandatory. Anything less is not a waiver. It is incumbent upon the trial court to make a record of a waiver of a fundamental right, and all doubts concerning waiver must be resolved in the accused’s favor.

The record reflects a written waiver of jury trial, dated February 20, 2018, executed by Appellant, his attorney, the assistant district attorney and Judge Douglas Golden. The written waiver indicates Appellant understood all of the rights he was giving up by signing the waiver and it indicates his attorney explained all of Appellant’s rights and the waiver of those rights to him. The document further shows the trial court questioned Appellant and found he was competent to make the waiver, fully understood the waiver and made the decision to waive jury trial of his own free will.

Moreover, prior to the commencement of the non-jury trial, the trial court, attorneys and Appellant discussed the ranges of punishment of the charged offenses and the fact that the State made a plea offer which was rejected by Appellant. At no time during this discussion did Appellant voice any dissatisfaction with his waiver of jury trial or express any confusion about the proceedings. Based upon this record, Appellant’s waiver of jury trial was knowing and voluntary. There was no error. Proposition I is denied.

To the extent Appellant complains about his waiver of jury trial in his affidavit attached to the Motion for Evidentiary Hearing, such complaint is not part of the record before this Court concerning the allegations within this proposition.

While clumsily stated, in Proposition II Appellant challenges the sufficiency of the evidence to support his conviction. He argues D.H.’s testimony was inconsistent in a few instances. This Court follows the standard for the determination of the sufficiency of the evidence which the United States Supreme Court set forth in Jackson v. Virginia, 443 U.S. 307 (1979).

Under this test, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The State had to prove Appellant committed the crime of First Degree Rape by Instrumentation beyond a reasonable doubt. The elements of that crime as pertinent here are: First, penetration of the vagina; Second, of a child under fourteen years of age; Third, by a part of the human body other than the penis.

D.H. testified Appellant inserted his fingers into her vagina when she was thirteen. Appellant admitted to police he rubbed her pubic area and her breasts and that he had a problem and was seeking counseling. Furthermore, Appellant texted D.H. after she disclosed his abuse to police and told her he was sorry he hurt her. Contrary to Appellant’s argument, the record reveals no inconsistency in D.H.’s testimony about where the abuse occurred.

While Appellant purports to take issue with the trial court’s determination of guilt, what he really takes issue with is the trial court’s credibility choices. Having thoroughly examined the record, the evidence presented was sufficient for the trial court to find that Appellant committed first-degree rape by instrumentation of a child under fourteen. Proposition II is denied.

In his third proposition, Appellant maintains prosecutorial misconduct denied him a fair trial. He concedes he has waived review of this claim for all but plain error.

Having thoroughly reviewed the complained of statements, we find there was no error. Reviewing the entire record, the cumulative effect of the prosecutor’s comments did not deprive Appellant of a fair trial. Therefore, we find that Appellant has not shown that error, plain or otherwise, occurred. Proposition III is denied.

In Proposition IV, Appellant argues his sentence is excessive. This Court holds that for a sentence which falls within statutory guidelines to be excessive, it must be so excessive under the facts and circumstances of the case so as to shock the conscience of the Court.

Appellant propounds various reasons why he contends his sentence is excessive: the crime was rape by instrumentation, he had no prior criminal history, he had good employment history and he sought counseling, despite maintaining his innocence. What the record shows is that Appellant systematically and routinely sexually abused a little girl who considered him to be her father. This abuse spanned a period of over ten years. The trial court’s ten-year sentence for Appellant’s disgusting crime is almost the minimum he could have received. Nothing about his sentence could possibly shock this Court’s conscience. Proposition IV is denied.

Appellant asserts in his fifth proposition that he was denied the right to present a defense because the trial court disallowed the admission of Defendant’s Exhibit 2, Sonya Dunlap’s video interview with police. We review this claim for an abuse of discretion.

A defendant has the right to present a defense, but he must comply with rules of procedure and evidence which are designed to assure fairness and reliability in criminal proceedings. During direct examination, defense counsel asked Dunlap about the circumstances surrounding D.H.’s allegations. The trial court ruled that Dunlap’s statement could not be used to impeach D.H.’s testimony and that the exhibit could not be admitted since Dunlap merely testified she did not remember making the statement. We find this ruling was correct.

There was no abuse of the trial court’s discretion. Proposition V is denied.

In Proposition VI, Appellant contends his speedy trial rights were denied. He argues more than one year passed between the time of his arrest and his trial and the State was responsible for the majority of the delay in his case being tried.

The record reveals that Appellant made no formal demand for a speedy trial. A defendant may waive his right to a speedy trial.

Having thoroughly examined the record, we find Appellant was not denied his right to a speedy trial. Proposition VI is denied.

In his seventh proposition, Appellant argues his competency should have been evaluated prior to trial. However, Appellant relies solely upon an affidavit attached as part of his Motion for Evidentiary Hearing in support of this claim and not upon any portion of the trial record.

This proposition is waived from appellate review.

In Proposition VIII, Appellant maintains his counsel had a conflict of interest which should have been addressed prior to trial. Appellant relies solely upon his affidavit attached to the Motion for Evidentiary Hearing in support of this allegation. This proposition is waived from appellate review.

Appellant contends his counsel was ineffective in Proposition IX. Specifically, he argues counsel was ineffective for multiple reasons including failure to argue certain defenses and the credibility of witnesses.

To demonstrate prejudice, an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s unprofessional errors.

Having thoroughly examined the record, we find there was no conflict of interest. Appellant has failed to show his counsel was ineffective and Proposition IX is denied.

In his last proposition, Appellant claims he is entitled to relief on a cumulative error basis. A cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. The record shows that no error occurred during the course of the trial in the present case. Therefore, no new trial or modification of sentence is warranted. Proposition X is denied.

DECISION
The Judgment and Sentence of the District Court is hereby AFFIRMED. The Application for Evidentiary Hearing pursuant to Rule 3.11(B)(3)(b) is DENIED.

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Footnotes:

1. Okla. Stat. tit. 21 § 1114
2. 21 O.S.Supp.2015 § 13.1
3. Simpson U. State, 1994 OK CR 40, 876 P.2d 690
4. Hinsley U. State, 2012 OK CR 11, 280 P.3d 354
5. Easlick V. State, 2004 OK CR 21, 90 P.3d 556
6. Spuehler U. State, 1985 OK CR 132, 709 P.2d 202
7. Jackson U. Virginia, 443 U.S. 307 (1979)
8. Matthews U. State, 2002 OK CR 16, 45 P.3d 907
9. Davis U. State, 2011 OK CR 29, 268 P.3d 86
10. Malone v. State, 2013 OK CR 1, 293 P.3d 198
11. Hanson U. State, 2003 OK CR 12, 72 P.3d 40
12. Sanders v. State, 2015 OK CR 11, 358 P.3d 280
13. Daniels U. State, 2016 OK CR 2, 369 P.3d 381
14. Burgess V. State, 2010 OK CR 25, 243 P.3d 461
15. Sanders, 2002 OK CR 42, 60 P.3d 1048
16. Rea U. State, 2001 OK CR 28, 34 P.3d 148
17. Goode U. State, 2010 OK CR 10, 236 P.3d 671
18. Crane v. Kentucky, 476 U.S. 683 (1986)
19. Holmes U. South Carolina, 547 U.S. 319 (2006)
20. 12 O.S. 2011 § 2613(B); Stiles U. State, 1999 OK CR 19, 989 P.2d 955
21. McDuffie U. State, 1982 OK CR 150, 651 P.2d 1055
22. Lott U. State, 2004 OK CR 27, 98 P.3d 318
23. Fain U. State, 1972 OK CR 317, 503 P.2d 254
24. Simpson v. State, 1982 OK CR 35, 642 P.2d 272
25. Carey U. State, 1995 OK CR 55, 902 P.2d 1116
26. Fulgham U. State, 2016 OK CR 30, 400 P.3d 775
27. Cuyler U. Sullivan, 446 U.S. 335 (1980)
28. Workman v. Mullin, 342 F.3d 1100 (10th Cir. 2003)
29. Baird U. State, 2017 OK CR 16, 400 P.3d 875

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114 (2001) - First Degree Rape by Instrumentation
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for certain felonies
• Okla. Stat. tit. 22 § 812.1 (2011) - Speedy trial rights
• Okla. Stat. tit. 22 § 2613 (2011) - Impeachment by prior inconsistent statements
• Okla. Stat. tit. 22, Ch. 18 App. (2019) - 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:

• Simpson v. State, 1994 OK CR 40, 876 P.2d 690
• Hinsley v. State, 2012 OK CR 11, 280 P.3d 354
• Easlick v. State, 2004 OK CR 21, 90 P.3d 556
• Spuehler v. State, 1985 OK CR 132, 709 P.2d 202
• Taylor v. State, 2011 OK CR 8, 248 P.3d 362
• Davis v. State, 2011 OK CR 29, 268 P.3d 86
• Matthews v. State, 2002 OK CR 16, 45 P.3d 907
• Malone v. State, 2013 OK CR 1, 293 P.3d 198
• Mitchell v. State, 2010 OK CR 14, 235 P.3d 640
• Hanson v. State, 2003 OK CR 12, 72 P.3d 40
• Sanders v. State, 2015 OK CR 11, 358 P.3d 280
• Langley v. State, 1991 OK CR 66, 813 P.2d 526
• Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186
• Mitchell v. State, 2018 OK CR 24, 424 P.3d 677
• McElmurry v. State, 2002 OK CR 40, 60 P.3d 4
• Daniels v. State, 2016 OK CR 2, 369 P.3d 381
• Burgess v. State, 2010 OK CR 25, 243 P.3d 461
• Sanders v. State, 2002 OK CR 42, 60 P.3d 1048
• Rea v. State, 2001 OK CR 28, 34 P.3d 148
• Goode v. State, 2010 OK CR 10, 236 P.3d 671
• Crane v. Kentucky, 476 U.S. 683 (1986)
• Simpson v. State, 2010 OK CR 6, 230 P.3d 888
• Barker v. Wingo, 407 U.S. 514 (1972)
• Doggett v. United States, 505 U.S. 647 (1992)
• Lott v. State, 2004 OK CR 27, 98 P.3d 318
• Stohler v. State, 1988 OK CR 52, 751 P.2d 1087
• Fain v. State, 1972 OK CR 317, 503 P.2d 254
• McDuffie v. State, 1982 OK CR 150, 651 P.2d 1055
• Fulgham v. State, 2016 OK CR 30, 400 P.3d 775
• Carey v. State, 1995 OK CR 55, 902 P.2d 1116
• Workman v. Mullin, 342 F.3d 1100 (10th Cir. 2003)
• Conroy-Perez v. State, 2019 OK CR 5, 440 P.3d 64