State Of Oklahoma v James Lee Sharrock

S-2008-953

Filed: Jun. 19, 2009

Not for publication

Prevailing Party: State Of Oklahoma

Summary

James Lee Sharrock appealed his conviction for Child Sexual Abuse. Conviction and sentence were affirmed. C. Johnson dissented.

Decision

The final rulings and orders of the Magistrate and the reviewing judge in Hughes County District Court, Case No. CF-2008-81, are AFFIRMED. Pursuant to Rule 3.15 of this Court's Rules, MANDATE IS ORDERED ISSUED upon the filing of this decision.

Issues

• Was there sufficient evidence presented at the preliminary hearing to bind Appellee over for trial on Count 2 of the Information?
• Did the Magistrate correctly apply the provisions of 12 O.S. § 2803.1 regarding the admissibility of child hearsay statements?
• Was the child witness considered "available to testify" at the preliminary hearing?
• Did the reviewing judge abuse their discretion in upholding the Magistrate's ruling on the admissibility of hearsay evidence?

Findings

• The court did not err in its application of 12 O.S. § 2803.1.
• The evidence was insufficient to bind Appellee over for trial on Count 2.
• The Magistrate did not abuse his discretion in striking hearsay testimony.
• The final rulings and orders of the Magistrate and the reviewing judge are affirmed.

S-2008-953

Jun. 19, 2009

State Of Oklahoma

Appellant

v

James Lee Sharrock

Appellee

SUMMARY OPINION

PER CURIAM: Appellee was charged by Information in the District Court of Hughes County, Case No. CF-2008-81, with two counts of Child Sexual Abuse. Following presentation of the State’s evidence at preliminary hearing, the Honorable Timothy L. Olsen, Associate District Judge, sitting as Magistrate, found the State presented insufficient evidence to bind Appellee over for trial on Count 2 of the Information. In so holding, the Magistrate found he could not consider the out-of-court statements made by the four-year-old child alleged to have been abused in Count 2. The State had attempted to introduce that child’s statements into evidence through the testimony of two adult witnesses who had either interviewed or examined the child. The Magistrate concluded the child hearsay statements recounted by those two adults were inadmissible under 12 O.S.Supp.2008, § 2803.1, because the four-year-old did not testify at the preliminary hearing and was not available to testify at that hearing. ^1

To the extent relevant to this appeal, Section 2803.1 states: A. A statement made by a child who has not attained thirteen (13) years of age which describes any act of physical abuse against the child or any act of sexual contact performed with or on the child by another, is admissible in criminal and juvenile proceedings in the courts in this state if:

1. The child either:
a. testifies or is available to testify at the proceedings in open court or through an alternative method pursuant to the provisions of the Uniform Child Witness Testimony by Alternative Methods Act or Section 2611.2 of Title 12 of the Oklahoma Statutes, or
b. is unavailable as defined in Section 2804 of this title as a witness.

When the child is unavailable, such statement may be admitted only if there is corroborative evidence of the act. 12 O.S.Supp.2008, § 2803.1 (emphasis added). The omitted subsection (A)(1) of this statute requires the trial court, before admitting the out-of-court statement at trial, to first hold a hearing outside the presence of the jury to determine that the time, content and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. 12 O.S.Supp.2008, § 2803.1(A)(1). Subsection (A)(1), however, has been held inapplicable to preliminary hearings. See Kennedy v. State, 1992 OK CR 67, 1 13, 839 P.2d 667, 670-71 ([A]s the only burden on the State at the preliminary hearing is to establish probable cause we find no reason to conduct any 2803.1 hearing at the preliminary hearing stage. Indeed, the reliability or unreliability of any evidence goes toward establishing or failing to establish probable cause.).

After hearing oral argument, and after a thorough consideration of Appellant’s proposition of error and the entire record before us on appeal, by a vote of four (4) to zero (0), we affirm. In state appeals brought under the procedures codified at 22 O.S.2001 & Supp.2008, §§ 1089.1-1089.7, this Court reviews the factual findings of the Magistrate and the reviewing judge for an abuse of discretion. ^2 In the case now before us, whether the child witness was actually present and available to testify at the preliminary hearing was a factual determination which the Magistrate was required to make in deciding whether the child hearsay should be admitted under Section 2803.1(A)(2)(a). The record on appeal reveals circumstances from which the Magistrate could reasonably conclude the child witness was not available to be called to testify. Accordingly, Appellant is unable to show that either the Magistrate or the reviewing judge abused their discretion in finding the hearsay was inadmissible.

DECISION

The final rulings and orders of the Magistrate and the reviewing judge in Hughes County District Court, Case No. CF-2008-81, are AFFIRMED. Pursuant to Rule 3.15 of this Court’s Rules, MANDATE IS ORDERED ISSUED upon the filing of this decision.

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Footnotes:

1. 12 O.S.Supp.2008, § 2803.1.
2. 22 O.S.2001, § 1089.1.
3. 12 O.S.Supp.2008, § 2803.1.
4. 12 O.S.Supp.2008, § 2803.1(A)(1).
5. 12 O.S.Supp.2008, § 2803.1(A)(2)(a).
6. 22 O.S.2001 & Supp. .2008, §§ 1089.1-1089.7.
7. State v. Swicegood, 1990 OK CR ,48, I 7, 795 P.2d 527, 529.
8. Kennedy v. State, 1992 OK CR 67, 1 13, 839 P.2d 667, 670-71.

Oklahoma Statutes citations:

• Okla. Stat. tit. 12 § 2803.1 (Supp. 2008) - Hearsay Exceptions; Child Statements
• Okla. Stat. tit. 22 § 1089.1 (2001) - Appeal from Certain Pretrial Orders
• Okla. Stat. tit. 22 § 1089.7 (2001) - Procedures for 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:

No case citations found.