J.M.D. v The State Of Oklahoma

J 2016-0745

Filed: Dec. 14, 2016

Not for publication

Prevailing Party: J.M.D.

Summary

J.M.D. appealed his conviction for endeavoring to perform an act of violence. Conviction and sentence were reversed. Judge Lumpkin dissented.

Decision

The order of the District Court of Stephens County adjudicating Appellant a Delinquent Child is REVERSED and REMANDED to the District Court with INSTRUCTIONS to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there sufficient evidence presented by the State to support the charge of Endeavoring to Perform an Act of Violence?
• Did the list prepared by J. M. D. constitute constitutionally protected speech?
• Was trial counsel ineffective for not arguing a First Amendment violation related to the prosecution?
• Did the trial court err in overruling the motion to suppress evidence obtained from questioning by school officials without parental contact?

Findings

• the order adjudicating Appellant as a delinquent child is reversed
• evidence was not sufficient to support Appellant's adjudication

J 2016-0745

Dec. 14, 2016

J.M.D.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE SMITH, PRESIDING JUDGE:

A Delinquent Petition was filed December 9, 2015, charging J. M. D., Appellant, age 15 (born August 25, 2000), in Stephens County District Court Case No. JDL-2015-76, with Endeavoring to Perform Act of Violence, in violation of 21 O.S.2011, § 1378(A), a felony. Following a bench trial on February 17, 2016, the Honorable G. Brent Russell, Associate District Judge, adjudicated Appellant delinquent and placed Appellant under the court’s protective custody. Appellant did not timely appeal, but was granted an appeal out of time by this Court on August 11, 2016, Case No. PC 2016-0588. Appellant now appeals from the order adjudicating her as a delinquent child.

10A O.S. 2011, § 2-2-601. Pursuant to Rule 11.2(A)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), this appeal was automatically assigned to the Accelerated Docket of this Court. Oral argument was held December 1, 2016. Rule 11.2(E). We reverse the order adjudicating Appellant as a delinquent child and remand the matter to the District Court with instructions to dismiss.

On appeal, Appellant raised the following propositions of error:

1. The list prepared by J. M. D. was constitutionally protected speech and cannot serve as a basis for adjudication.
2. The State failed to present any evidence that J.M.D. endeavored to perform an act of violence involving or intended to involve serious bodily harm or death.
3. Trial counsel was ineffective when she failed to argue that prosecuting J. M. D. for making a private list was in violation of First Amendment rights.
4. The trial court erred in overruling the motion to suppress State’s Exhibit 1 and J. M. D.’s statements obtained pursuant to questioning by school officials, who suspected possible criminal conduct, without first contacting J. M. D.’s parent.

We find that Appellant’s second proposition of error requires reversal. The State must prove a charge of delinquency beyond a reasonable doubt. Matter of J.E.S., 1978 OK CR 111, IT 5, 585 P.2d 382. Appellant was charged with Endeavoring to Perform an Act of Violence, 21 O.S.2011 § 1378(A), which requires proof that Appellant endeavored to perform an act of violence involving or intended to involve serious bodily harm or death of another person. It is undisputed that Appellant wrote a list of names of people she did not like on a sheet of paper entitled Hit List. Appellant admitted that she and another girl were messing around in class, just having fun, when she made a list of people that she did not like. Entitling that piece of paper with the words Hit List was poor judgment, but the State has presented no evidence that Appellant had any intention of hurting anyone named on the list. The evidence is legally insufficient to support Appellant’s adjudication as a delinquent child. It is unnecessary to address the remaining propositions.

DECISION

The order of the District Court of Stephens County adjudicating Appellant a Delinquent Child is REVERSED and REMANDED to the District Court with INSTRUCTIONS to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 1378(A)
2. 10A O.S. 2011, § 2-2-601
3. Rule 11.2(A)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016)
4. Rule 11.2(E)
5. 585 P.2d 382
6. 21 O.S.2011 § 1378(A)
7. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1378(A) (2011) - Endeavoring to Perform Act of Violence
• Okla. Stat. tit. 10A § 2-2-601 (2011) - Delinquent Child

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:

• Matter of J.E.S., 1978 OK CR 111, IT 5, 585 P.2d 382