Byrin Carr v The State Of Oklahoma

M-2017-1021

Filed: Apr. 25, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Byrin Carr appealed his conviction for Threaten to Perform Act of Violence. Conviction and sentence: six months in the Garfield County Jail. Judge Hudson dissented. In this case, Byrin Carr was charged for threatening to kill judges and prosecutors while talking to news reporters. The court found him guilty based on threats he made, which were recorded by a photographer. Carr argued that he was just trying to express his feelings about how he was treated by the local authorities and that his comments were protected as political speech. He asked the judge to give the jury instructions that would help his defense, but the judge refused. Carr believed he should be allowed to show that he didn't really mean what he said, but the court ruled it was not necessary since he admitted to making the threats. In the end, the appeals court agreed with the original trial court's decision to convict him and keep the six-month sentence.

Decision

Appellant's misdemeanor Judgment and Sentence, in Case No. CM-2016-655 in the District Court of Garfield County, convicting him of Threaten to Perform an Act of Violence, and sentencing him to a term of six months in the Garfield County Jail is AFFIRMED. 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 filing of this decision.

Issues

• Was there instructional error by the district court in denying defense requested instructions on scienter?
• Did the trial court err in instructing the jury on the term "willful"?
• Was Carr denied his constitutional right to present his defense?

Findings

• the court did not err in denying Appellant's requested jury instructions on scienter
• the trial court did not err in instructing the jury on the term "willfully"
• Appellant was not denied his constitutional right to present his defense
• Appellant's misdemeanor Judgment and Sentence is affirmed

M-2017-1021

Apr. 25, 2019

Byrin Carr

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE:

The Appellant, Byrin Carr, appeals from his misdemeanor Judgment and Sentence entered after a jury trial before the Honorable Timothy D. Haworth, Associate District Judge, in Case No. CM-2016- 655 in the District Court of Garfield County. Appellant was convicted of Threaten to Perform Act of Violence, and was sentenced to a term of six months in the Garfield County Jail.

PROCEDURAL HISTORY

On June 28, 2016, Appellant was charged with Threaten to Perform Act of Violence, misdemeanor, 21 O.S.2011, § 1378(B), by approaching two KOCO-TV 5 news reporters and threatening to kill the Garfield County judges and prosecutors. On June 30, 2016, Judge Haworth from Major County was assigned to hear the case. On August 3, 2016, Judge Haworth ordered the Garfield County District Attorney’s Office to recuse, and appointed Brian Hermanson, District Attorney, District 8, Kay and Noble Counties. On September 19, 2017, the jury trial was held before Judge Haworth.

FACTS

The State’s first witness at the jury trial was Brian Dickson (Dickson), a news photographer for KOCO-TV. On June 27, 2016, Dickson and a co-worker (the news reporters) were covering a news story in the City of Enid. They were sitting in a vehicle parked at a McDonald’s restaurant, when Appellant walked up to the passenger window and started talking to them. Dickson became uncomfortable because Appellant sounded upset and started making specific threats, so Dickson started recording the conversation with a cell phone. Dickson testified that Appellant pointed at the courthouse and said I’m going to blow out some windows and do some killing, and not just regular killing at that courthouse, I’m going to do some judges and the DA. Dickson said Appellant handed them a business card, and the pickup Appellant was driving had the name of Appellant’s landscaping business painted on the side. The State then played the audio recording Dickson made of the conversation with Appellant. The audio recording also includes statements by Appellant that: I’m going to walk in there and kill judges and district attorneys, that’ll make the news won’t it; when justice don’t prevail, it’s time for me to turn Jesse James; I’ll have to kill judges and DAs; big boys who think they’re above the law.

The news reporters decided to call their boss and tell her about Appellant and what he said. The parties then stipulated that Rebecca Gaylord, KOCO-TV news supervisor, would testify that, when she was notified by employees of the comments made by Appellant, she called the Garfield County District Attorney’s Office to warn them. After that, the State rested.

Appellant testified in his own defense saying that his actions on June 27, 2016, were in response to the way he had been treated all of his adult life by Garfield County law enforcement and judges. Appellant stated that he never intended to hurt anyone, and believed that talking to news reporters would be a way to get his grievances heard. After his testimony, Appellant rested.

During preparation of jury instructions, counsel for Appellant believed that the offense of Threaten to Perform Act of Violence was a subjective intent crime and requested two instructions concerning Appellant’s scienter or intent as to whether the threats were true and credible threats. The first requested instruction stated: The defendant has been accused specifically of threatening to kill the Garfield County judges and prosecutors. The law requires that such a threat, if found by you to have been made by the Defendant, must have been intended by the Defendant to be a true and credible threat of death to other persons intended to be carried out by the Defendant. Appellant’s second requested instruction provided: The law protects the right of a citizen to engage in political speech critical of government officials. If you find that the Defendant engaged in political speech and intended only to express criticism of government officials, then you must find the Defendant not guilty.

The State argued that the first requested instruction is a misstatement of the law because the Threaten to Perform Act of Violence statute only requires a willful threat of violence, and does not require the threat to be true and credible. The State argued Appellant’s second requested instruction concerning political speech is not required because Appellant’s threats were not political speech, but direct threats to specific individuals. Judge Haworth denied Appellant’s requested instructions. Judge Haworth stated the instructions that would be given to the jury. Appellant objected to the instruction that defined willfully as: Purposefully. Willfully does not require any intent to violate the law, or to injure another or to acquire any advantage. Appellant again argued that the crime was a specific intent crime and that instruction defining ‘willfully’ alleviated the State’s burden of proving specific intent to kill or injure. Judge Haworth agreed with the State’s response that ‘willfully’ was one of the elements of the crime and thus the OUJI instruction defining ‘willfully’ should be given. Appellant’s jury found him guilty of Threaten to Perform Act of Violence, and set punishment at six months in the county jail. Judge Haworth convicted and sentenced Appellant in accordance with the jury’s verdict.

Appellant appeals raising the following propositions of error:

PROPOSITION I: THE DISTRICT COURT COMMITTED INSTRUCTIONAL ERROR BY DENYING DEFENSE REQUESTED INSTRUCTIONS ON SCIENTER WHICH DEPRIVED CARR OF HIS RIGHT TO PRESENT A DEFENSE.

PROPOSITION II: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE TERM WILLFUL.

PROPOSITION III: CARR WAS DENIED HIS CONSTITUTIONAL RIGHT TO PRESENT HIS DEFENSE.

ANALYSIS

In Proposition I, Appellant claims Judge Haworth erred by refusing his two requested instructions. Appellant argues that his first requested instruction should have been given because OUJI-CR 2-24, the instruction for the crime of Threaten to Perform an Act of Violence, 21 O.S.2011, § 1378(B), does not include any statement about scienter – the subjective mental state of Appellant when he made the threats – or any statement concerning an evaluation of whether the threats were true and credible threats intended to be carried out by Appellant. Appellant acknowledges in his brief that he made the threats, and claims that the only dispute is whether he was actually serious when he made the threats, or whether he was merely trying to bluster a news crew in order to get attention for his perceived persecution by local authorities.

Section 1378(B) requires neither proof that the threat must have been intended by the defendant to be a true and credible threat of serious bodily harm or death, nor proof that the defendant intended to carry out the threat. 21 O.S.2011, § 1378(B) (any person who shall threaten to perform an act of violence involving or intended to involve serious bodily harm or death of another person shall be guilty of a misdemeanor); OUJI-CR 2-24 (the elements are: First, willfully; Second, threatening; Third, to perform an act of violence; Fourth, involving/(intended to involve) (serious bodily harm to), / (the death of) another person). Section 1378(B) only requires proof that the defendant willfully made a threat to cause serious bodily harm or death. Id. Section 1378(B) is therefore a general intent crime and the intent to harm or cause death mentioned in that section means only that general intent and scienter included within the term to willfully threaten. 21 O.S.2011, § 1378(B); OUJI-CR 2-24; see Warner v. State, 2006 OK CR 40, I 78, 144 P.3d 838, 870-71, citing Fairchild v. State, 1999 OK CR 49, II 72-75, 998 P.2d 611, 626. Appellant made a willful and calculated purveyance of his threat with knowledge that the communication would be viewed as a threat, and thus the mental state requirement in Section 1378(B) is satisfied. Elonis v. United States, 575 U.S. 135 S.Ct. 2001, 2012, 192 L.Ed.2d 1 (2015). Appellant’s first requested instruction does not fairly and accurately state the law and he has not established that it was error for Judge Haworth to deny the instruction. Norton v. State, 2002 OK CR 10, I 17, 43 P.3d 404, 409.

Appellant argues that his second requested instruction should have been given because his statements to the news reporters were, even though toughly worded and an ill-advised attempt by him to get media attention, in the nature of pure political speech that is constitutionally protected, thus making Section 1378(B) unconstitutional as applied to him under the facts and circumstances of this case. Appellant’s statements to the news reporters cannot be considered a debate on public issues or a method of stating a political position. Contra Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (Watts’ statement was made at a public rally in Washington, D.C., and in opposition to the military draft). Appellant’s statements also constituted a threat of violence involving the death of another person and thus fell outside the protections of the First Amendment. Contra Gerhart v. State, 2015 OK CR 12, 360 P.3d 1194 (Gerhart’s threats involved ridicule or derision but not violence). Appellant’s threats were personal in nature and directed at persons Appellant believed to be his personal, not political, antagonists. Appellant’s second requested instruction does not fairly and accurately state the law or the facts of this case, and he has not established that it was error for Judge Haworth to deny the instruction. Norton, supra.

Appellant’s Proposition I is denied.

In Proposition II, Appellant argues that Judge Haworth erred by giving the OUJI instruction defining willfully. Appellant again claims that the crime of Threaten to Perform an Act of Violence requires the State to prove that the accused had subjective intent to injure or kill. As noted in Proposition I above, Section 1378(B) is a general intent crime and only requires proof that the defendant willfully made a threat to cause serious bodily harm or death, and does not require proof that Appellant had subjective intent to injure or kill. 21 O.S.2011, § 1378(B); OUJI-CR 2-24; see Warner v. State, 2006 OK CR 40, I 78, 144 P.3d 838, 870-71, citing Fairchild v. State, 1999 OK CR 49, II 72-75, 998 P.2d 611, 626. Judge Haworth did not err in instructing Appellant’s jury on the term willfully. Proposition II is denied.

In Proposition III, Appellant argues that he was denied his right to present the defense that his statements to the news reporters were akin to political speech, and not true credible threats of violence. As shown in Propositions I and II above, the crime Threaten an Act of violence, 21 O.S.2011, § 1378(B), is a general intent crime that is proven when there is evidence that Appellant made the threat to perform an act of violence involving serious bodily injury or death. Appellant has admitted that he made the threats, and therefore his proposed defense is not relevant. Proposition III is denied.

DECISION

Appellant’s misdemeanor Judgment and Sentence, in Case No. CM-2016-655 in the District Court of Garfield County, convicting him of Threaten to Perform an Act of Violence, and sentencing him to a term of six months in the Garfield County Jail is AFFIRMED. 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 filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 1378(B)
2. 21 O.S.2011, § 1378(B)
3. 21 O.S.2011, § 1378(B)
4. 21 O.S.2011, § 1378(B)
5. 21 O.S.2011, § 1378(B)
6. 21 O.S.2011, § 1378(B)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1378(B) (2011) - Threatening to Perform Act of Violence

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:

No case citations found.