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M-2018-212

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Rodney Eugene Smith v The State Of Oklahoma

M-2018-212

Filed: May 9, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Rodney Eugene Smith appealed his conviction for domestic assault and battery. Conviction and sentence: one year in the county jail and a $5,000.00 fine. Judge Hudson dissented.

Decision

The Judgment and Sentence of the district court 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 delivery and filing of this decision.

Issues

  • Was the State's evidence presented at trial insufficient to establish every element of domestic assault and battery beyond a reasonable doubt?
  • Did the State's evidence fail to establish beyond a reasonable doubt that Mr. Smith acted with the intent to injure?
  • Was Mr. Smith deprived of his constitutional and statutory rights to a fair trial when the trial court failed to issue instructions on the lesser included offense of simple assault and battery?
  • Did the trial court err in denying the requested self-defense instructions?
  • Did the jury instructions fail to instruct the jury on the specific crime charged?
  • Was Mr. Smith denied due process of law when the information was insufficient to apprise him of what he was required to defend?
  • Did the cumulative effect of prosecutorial misconduct deprive Mr. Smith of a fair trial?
  • Was Bridgett Downum's testimony regarding Mr. Smith's alleged domestic violence improper lay opinion?
  • Was Mr. Smith denied his right to the effective assistance of trial counsel?
  • Did cumulative errors deprive Mr. Smith of a fair proceeding and a reliable outcome?

Findings

  • the court erred
  • evidence was sufficient
  • the court did not err
  • the court did not err
  • the court did not err
  • the court did not err
  • the court did not err
  • the court did not err
  • the court did not err
  • the court did not err

M-2018-212

May 9, 2019

Rodney Eugene Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Appellant Rodney Eugene Smith appeals his Judgment and Sentence from the District Court of McIntosh County, Case No. CM-2017-227, for Domestic Assault and Battery, a misdemeanor, in violation of 21 O.S.Supp.2014, § 644(C). The Honorable James R. Pratt, Associate District Judge, presided over Smith’s jury trial and sentenced him, in accordance with the jury’s verdict, to one year in the county jail and a $5,000.00 fine.

FACTS

On May 29, 2017, Alexis Perkins walked into the Eufaula police station and told Officer Joel Reser that she had been struck by Appellant, a man with whom she lived (off and on) for nearly the past year and with whom she had a sexual relationship. Officer Reser took photographs to document a small cut near Perkins’ right eye and a small amount of blood on her shirt. At trial, Perkins testified the incident involving Appellant happened at the home of a mutual friend, Bridgett Downum. Perkins had been temporarily living with Downum, and, while Appellant did not typically stay there, he spent the night there with Perkins prior to the incident. Perkins testified she awoke before Appellant and left in his car to run errands. When she returned, Appellant was angry because he suspected she had taken money from his clothing while he slept. According to Downum, Appellant was also upset because Perkins had taken his car without permission. Perkins and Appellant had a loud argument. When Downum entered the room to investigate the commotion, she saw Appellant slap Perkins. Downum positioned herself between Appellant and Perkins and told Appellant to leave the house. He complied.

Appellant brings this appeal raising the following propositions of error:

PROPOSITION I: THE STATE’S EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO ESTABLISH EVERY ELEMENT OF DOMESTIC ASSAULT AND BATTERY BEYOND A REASONABLE DOUBT AND MR. SMITH’S CONVICTION MUST THEREFORE BE DISMISSED.

PROPOSITION II: THE STATE’S EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT MR. SMITH ACTED WITH THE INTENT TO INJURE, AND THEREFORE HIS CONVICTION FOR DOMESTIC ASSAULT AND BATTERY MUST BE DISMISSED.

PROPOSITION III: MR. SMITH WAS DEPRIVED OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS TO A FAIR TRIAL UNDER THE 5TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND UNDER ART. II, § 7, OF THE OKLAHOMA CONSTITUTION WHEN THE TRIAL COURT FAILED TO ISSUE INSTRUCTIONS ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT AND BATTERY.

PROPOSITION IV: THE TRIAL COURT’S DENIAL OF THE REQUESTED SELF-DEFENSE INSTRUCTIONS REQUIRES REVERSAL OF MR. SMITH’S CONVICTION FOR DOMESTIC ASSAULT AND BATTERY.

PROPOSITION V: THE JURY INSTRUCTIONS FAILED TO INSTRUCT THE JURY ON THE SPECIFIC CRIME CHARGED.

PROPOSITION VI: MR. SMITH WAS DENIED DUE PROCESS OF LAW WHEN THE INFORMATION WAS INSUFFICIENT TO APPRISE HIM OF WHAT HE WAS REQUIRED TO DEFEND.

PROPOSITION VII: THE CUMULATIVE EFFECT OF PROSECUTORIAL MISCONDUCT DEPRIVED MR. SMITH OF A FAIR TRIAL IN VIOLATION OF THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 9 OF THE OKLAHOMA CONSTITUTION.

PROPOSITION VIII: BRIDGETT DOWNUM’S TESTIMONY THAT MR. SMITH HAD COMMITTED DOMESTIC VIOLENCE WAS IMPROPER LAY OPINION.

PROPOSITION IX: MR. SMITH WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART.2, §§ 7 AND 20, OF THE OKLAHOMA CONSTITUTION.

PROPOSITION X: CUMULATIVE ERRORS DEPRIVED MR. SMITH OF A FAIR PROCEEDING AND A RELIABLE OUTCOME.

ANALYSIS

An essential element of domestic assault and battery is that force or violence be used against “a person who is a family or household member, or who are in a dating relationship.” See OUJI-CR (2d) 4-26A. In his first proposition of error, Appellant contends the State’s evidence was insufficient to show Appellant and Perkins were in a dating relationship. The test to be applied in determining the sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Spuehler v. State, 1985 OK CR 132, 7, 709 P.2d 202, 203-04. Perkins denied the existence of a dating relationship with Appellant. However, her view is not controlling. Considering her testimony indicating she cohabitated and had a sexual relationship with Appellant, we find a rational jury could have found the existence of a dating relationship beyond a reasonable doubt. Proposition I is denied.

Appellant’s jury was instructed that one of the essential elements of domestic assault and battery was that force or violence be used “with the intent to do bodily harm.” In his second proposition, Appellant asserts the State’s evidence was insufficient to prove this element beyond a reasonable doubt. Intent to do bodily harm is not an element of domestic assault and battery and it was therefore error to so instruct the jury. OUJI-CR (2d) 4-26A. The error, however, was not objected to below and it did nothing to harm Appellant. In fact, it required the State to prove more than if the error had not occurred and therefore worked to Appellant’s benefit. In similar circumstances, this Court has held the erroneous inclusion of a non-element of a crime in a jury instruction did not result in reversible error because the error did not lessen the State’s burden of proof, but increased its burden by adding another element to be proved. Floyd v. State, 1992 OK CR 22, 8-9, 829 P.2d 981, 983-84. See Davis v. State, 1996 OK CR 15, 30, 916 P.2d 251, 260 (even when objected to at trial, the Court found similar error to lack “constitutional significance” and to be harmless). The State’s evidence tended to show Appellant was mad at Perkins because he believed she had taken money from him and used his car without permission. While angry, Appellant chose to confront Perkins and during the course of that confrontation he struck her in the face with enough force to cause her to bleed. When viewed in the light most favorable to the State, the evidence is sufficient to prove Appellant acted with the intent to do bodily harm. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Spuehler v. State, 1985 OK CR 132, 7, 709 P.2d 202, 203-04. Proposition II is denied.

In Proposition III, Appellant argues the trial court erred in failing to instruct the jury on simple assault and battery. Simple assault and battery and domestic assault and battery differ only in that the victim must fall within a specific relationship to constitute the crime of domestic assault and battery. See 21 O.S.2014, § 644(A) and (C). Defense counsel did not request an instruction on simple assault and battery and therefore appellate review is for plain error. Plain error requires the Appellant to show: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error impacted his substantial rights, meaning the error affected the outcome of the proceeding. Simpson v. State, 1994 OK CR 40, 11 3, 876 P.2d 690, 694-95. If these elements are met, this Court will correct plain error only if the error “seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings” or otherwise represents a “miscarriage of justice.” Simpson, 1994 OK CR 40 at 30, 876 P.2d at 701. “Sufficient evidence to warrant a lesser included offense is evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater.” Barnett v. State, 2012 OK CR 2, 18, 271 P.3d 80, 86. Similar to Proposition I, Appellant’s argument is premised on the contention that he was not involved in a dating relationship with Perkins. We are not persuaded. Rather, we find in light of Perkins’ testimony, it would not be rational to find the absence of a dating relationship. Accordingly, it was not plain error for the trial court to omit instructions on simple assault and battery. Proposition III is denied.

In Proposition IV, Appellant contends the trial court erred in refusing his request for instructions on self-defense. Which instructions should be provided to a jury is a matter within the discretion of the trial court, and, absent an abuse of discretion, this Court will not interfere with the trial court’s judgment if the instructions as a whole accurately state the applicable law. Cipriano v. State, 2001 OK CR 25, 14, 32 P.3d 869, 873. A defendant is entitled to instructions on his theory of defense provided such theory is tenable as a matter of law and is supported by the evidence. Green v. State, 1980 OK CR 34, 11 11, 611 P.2d 262, 266. Appellant contends the testimony of Perkins warranted instructions on self-defense. Perkins claimed during the argument she grabbed Appellant by the shoulder and Appellant reacted by back-handing her. Under 21 O.S.2011, § 643(3) force may be used by a party about to be injured to prevent the commission of an offense. However, there is no evidence in the record to suggest Appellant thought he was about to be injured or that he felt threatened by Perkins. Rather, the evidence showed Appellant was angry and brought the confrontation to Perkins. Self-defense is not available to an aggressor. Baird v. State, 2017 OK CR 16, 29, 400 P.3d 875, 884. Additionally, Downum testified that a week before the trial she told an Assistant District Attorney that Appellant and Perkins “were hitting each other.” If credited, Downum’s testimony provides additional reason to withhold instructions on self-defense because the defense is not available to one who enters mutual combat. Spruill v. State, 2018 OK CR 25, 8, 425 P.3d 753, 756. Whereas here, the record contains no evidence of self-defense, the trial court is not bound to instruct the jury on that defense. Holloway v. State, 1986 OK CR 1, 6, 712 P.2d 68, 69. Proposition IV is denied.

In Proposition V, Appellant contends a jury instruction, OUJI-CR (2d) 4-26A, improperly broadened the factual basis on which he could be convicted. The Information alleged Appellant committed “an assault and battery upon Alexis Perkins, the girlfriend…” In addition to allowing the jury to convict if it found violence was used against someone in a “dating relationship,” the instruction permitted conviction if the violence was used against a “person who is a family or household member.” Perkins denied being in a dating relationship with Appellant, but she admitted she lived with him on and off for about a year prior to the assault. Appellant contends the instruction is improper because the Information placed him on notice that he would have to defend only against an allegation that Perkins was “a girlfriend” and not that she was a “family or household member.” Appellant did not object to the instruction at trial and therefore review is for plain error. An accused is entitled to notice of the charge he must be prepared to defend against. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). This Court will consider all information made available to the defense before trial to determine whether the due process notice requirement has been satisfied. Parker v. State, 1996 OK CR 19, 24, 917 P.2d 980, 986. “A variance between the charge and the theory presented at trial is not fatal unless it denies the defendant some substantial right.” Patterson v. State, 2002 OK CR 18, 25, 45 P.3d 925, 931 (citing United States v. McClatchey, 217 F.3d 823, 831 (10th Cir. 2000)). Failure to object to proposed instructions waives error on appeal unless the result is a miscarriage of justice. Floyd v. State, 1992 OK CR 22, 8, 829 P.2d 981, 984.

It does not appear from the record that Appellant was genuinely surprised by the language in the instruction. When specifically asked if he had any objection to the instruction at issue, defense counsel responded, “No, Your Honor.” The Information did provide Appellant with notice of the statute with which he was charged – “21 O.S. § 644(C).” Subsection C in turn identified various relationships subject to the statute’s reach, including “a person who formally lived in the same household as the defendant, or a person living in the same household as the defendant.” We do not find the presence of plain error under these circumstances. Proposition V is denied.

In Proposition VI, Appellant contends the Information failed to sufficiently apprise him of what he must defend at trial. “Appellant did not object to the Information at trial, therefore we review only for plain, reversible error.” Conover v. State, 1997 OK CR 6, 10, 933 P.2d 904, 909. “Where an Information alleges an offense and pleads particular facts constituting the offense in ordinary language, such that a person of common understanding can know what is intended and prepare a defense to the charge, no due process violation occurs.” Parker v. State, 1996 OK CR 19, 19, 917 P.2d 980, 986. “The Information is required only to allege those facts required to charge the crime against the defendant.” Wisdom v. State, 1996 OK CR 22, 12, 918 P.2d 384, 386. The Information recited the name of Appellant, the date, place, and method of the crime, identified the crime victim and specified the statute under which Appellant was being charged. This was sufficient to provide Appellant with notice of the charge against him. Carpenter v. State, 1996 OK CR 56, 15, 929 P.2d 988, 993. Proposition VI is denied.

In Proposition VII, Appellant contends he is entitled to relief due to the cumulative effect of various comments made by the prosecutor. Appellant failed to raise a timely objection to the comments he now challenges as improper and has therefore waived appellate review for all but plain error. Malone v. State, 2013 OK CR 1, 940, 293 P.3d 198, 211. This Court will grant relief only where the prosecutor’s misconduct is so flagrant and so infected the defendant’s trial that it was rendered fundamentally unfair. Williams v. State, 2008 OK CR 19, 124, 188 P.3d 208, 230. We have reviewed the comments identified by Appellant and have concluded that either the comments were not improper or not so improper as to warrant plain error relief. Proposition VII is denied.

During her testimony, Downum was asked by the prosecutor her opinion as to what constituted domestic abuse. In Proposition VIII, Appellant complains Downum’s testimony was improper lay opinion evidence that should have been excluded by 12 O.S.2011, § 2701 of the evidence code. Appellant did not object to Downum’s testimony. Assuming arguendo that Appellant is correct, the brief exchange between the prosecutor and Downum in this regard does not rise to the level of plain error. Proposition VIII is denied.

In Proposition IX, Appellant claims his trial counsel was ineffective because he did not make the various objections or raise the various issues raised elsewhere in his brief. This Court reviews ineffective assistance of counsel claims under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Malone v. State, 2013 OK CR 1, 14, 293 P.3d 198, 206. The Strickland test requires an Appellant to show: 1) that counsel’s performance was constitutionally deficient; and 2) that counsel’s deficient performance prejudiced the defense. Id.

When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Malone, 2013 OK CR 1, 16, 293 P.3d at 207. 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. Id. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). Appellant has not shown a reasonable probability that the outcome of the trial would have been different but for counsel’s failure to raise the challenges now raised on appeal. Proposition IX is denied.

In Proposition X, Appellant claims he was denied a fair trial by an accumulation of errors. Cumulative error does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the proceeding. Baird v. State, 2017 OK CR 16, “I 42, 400 P.3d 875, 886. The irregularities found to exist during Appellant’s trial, even when examined in cumulative fashion, did not affect the outcome of the trial and therefore no relief is warranted. Proposition X is denied.

DECISION

The Judgment and Sentence of the district court 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 delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.Supp.2014, § 644(C)
  2. OUJI-CR (2d) 4-26A
  3. Jackson U. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
  4. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
  5. Floyd v. State, 1992 OK CR 22, I 8-9, 829 P.2d 981, 983-84
  6. Davis v. State, 1996 OK CR 15, I 30, 916 P.2d 251, 260
  7. 21 O.S.2014, § 644(A) and (C)
  8. Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694-95, 698
  9. Barnett v. State, 2012 OK CR 2, I 18, 271 P.3d 80, 86
  10. Baird v. State, 2017 OK CR 16, I 29, 400 P.3d 875, 884
  11. Spruill v. State, 2018 OK CR 25, I 8, 425 P.3d 753, 756
  12. Holloway v. State, 1986 OK CR 1, I 6, 712 P.2d 68, 69
  13. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948)
  14. Parker v. State, 1996 OK CR 19, I 24, 917 P.2d 980, 986
  15. Patterson U. State, 2002 OK CR 18, I 25, 45 P.3d 925, 931
  16. Malone v. State, 2013 OK CR 1,940, 293 P.3d 198, 211
  17. Williams U. State, 2008 OK CR 19, I 124, 188 P.3d 208, 230
  18. 12 O.S.2011, § 2701
  19. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
  20. Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)
  21. Baird U. State, 2017 OK CR 16, I 42, 400 P.3d 875, 886

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 644(C) - Domestic Assault and Battery
  • Okla. Stat. tit. 21 § 643(3) - Justification: Use of Force in Self-Defense
  • Okla. Stat. tit. 21 § 644(A) - Definitions Related to Domestic Assault

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:

  • Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
  • Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04
  • Floyd v. State, 1992 OK CR 22, ¶ 8-9, 829 P.2d 981, 983-84
  • Davis v. State, 1996 OK CR 15, ¶ 30, 916 P.2d 251, 260
  • Simpson v. State, 1994 OK CR 40, ¶ 3, 11, 23, 876 P.2d 690, 694-95, 698
  • Barnett v. State, 2012 OK CR 2, ¶ 18, 271 P.3d 80, 86
  • Cipriano v. State, 2001 OK CR 25, ¶ 14, 32 P.3d 869, 873
  • Green v. State, 1980 OK CR 34, ¶ 11, 611 P.2d 262, 266
  • Baird v. State, 2017 OK CR 16, ¶ 29, 400 P.3d 875, 884
  • Spruill v. State, 2018 OK CR 25, ¶ 8, 425 P.3d 753, 756
  • Holloway v. State, 1986 OK CR 1, ¶ 6, 712 P.2d 68, 69
  • Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948)
  • Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986
  • Patterson v. State, 2002 OK CR 18, ¶ 25, 45 P.3d 925, 931
  • Malone v. State, 2013 OK CR 1, ¶ 940, 293 P.3d 198, 211
  • Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230
  • Conover v. State, 1997 OK CR 6, ¶ 10, 933 P.2d 904, 909
  • Wisdom v. State, 1996 OK CR 22, ¶ 12, 918 P.2d 384, 386
  • Carpenter v. State, 1996 OK CR 56, ¶ 15, 929 P.2d 988, 993
  • Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
  • Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)

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