The State of Oklahoma v Thomas Bradley Porton

S-2013-483

Filed: Dec. 3, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Thomas Bradley Porton appealed his conviction for multiple crimes against children, including sodomy and lewd acts. His conviction and sentence were affirmed. Judge Lumpkin dissented.

Decision

The State's appeal from the District Court order excluding evidence is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the District Court in ruling the photographs seized from the defendant's computer inadmissible?
• Did the photographs seized from the defendant's computer qualify as part of the res gestae of the case?
• Were the photographs admissible as proper evidence of other bad acts?
• Did the trial court properly analyze the prejudicial effect versus the probative value of the photographs?
• Was the State able to demonstrate that the suppressed evidence was substantial enough to impair its ability to prosecute the case?

Findings

• the State's appeal from the District Court order excluding evidence is DENIED

S-2013-483

Dec. 3, 2013

The State of Oklahoma

Appellant

v

Thomas Bradley Porton

Appellee

SUMMARY OPINION

SMITH, VICE PRESIDING JUDGE:

Thomas Bradley Porton is charged with two counts of Sodomy – Victim under Sixteen in violation of 21 O.S.2011, § 888(B)(1) (Counts 1 and 2), eleven counts of Lewd or Indecent Acts with a Child under Sixteen in violation of 21 O.S.2011, § 1123(A)(2) (Counts 3, 5, 6, 9, 10, 26, 27, 29, 30, 34 and 39), eleven counts of Furnishing an Alcoholic Beverage to a Person under Twenty-One in violation of 37 O.S.2011, § 538(F) (Counts 4, 7, 8, 11, 21, 24, 31, 33, 36, 37, and 38), twelve counts of Exhibition of Obscene or Indecent Material in violation of 21 O.S.2011, § 1021(B) (Counts 12, 13, 14, 15, 16, 18, 20, 22, 25, 28, 32 and 35), one count of Lewd or Indecent Proposal to a Child under Sixteen in violation of 21 O.S.2011, § 1123(A)(1) (Count 19), one count of Performing a Lewd Act in the Presence of a Minor in violation of 21 O.S.2011, § 1123(A)(5) (Count 23), one count of Sexual Battery in violation of 21 O.S.2011, § 1123(B) (Count 40), one count of Practicing Medicine without a License 59 O.S.2011, § 491(A)(2) (Count 41), and one count of Rape in the Second Degree in violation of 21 O.S.2011, § 1114 (Count 42), in the District Court of McCurtain County, Case No. CF-2012-197. Porton was bound over at preliminary hearing.

The State filed a Notice of Intent to Offer Evidence of Other Crimes and Bad Acts and a Supplemental Notice of Intent to Offer Evidence of Other Bad Acts. After a hearing, the Honorable Jana K. Wallace ruled that certain evidence of other bad acts was not admissible. The State appeals, raising one proposition of error which is divided into two sub-propositions.

I. The District Court abused its discretion in ruling the photographs seized from the defendant’s computer inadmissible.

A. The photographs seized from the defendant’s computer are admissible as part of the res gestae of the case.
B. The photographs seized from the defendant’s computer are admissible as proper evidence of other bad acts.

After thorough consideration of the entire record before us, including the original record, transcripts and briefs, we find that the law and evidence do not require relief. The State appeals under 22 O.S.2011, § 1053(5), which allows for expedited State appeals where a trial court has suppressed or excluded evidence and appellate review would be in the best interests of justice. This statutory provision was added to allow the State to bring what is essentially an interlocutory appeal, where evidence has been suppressed but the case continues. We have construed best interests of justice as used in Section 1053(5) to mean that the evidence suppressed forms a substantial part of the proof of the pending charge, and the State’s ability to prosecute the case is substantially impaired or restricted absent the suppressed or excluded evidence. State v. Sayerwinnie, 2007 OK CR 11, ¶ 6, 157 P.3d 137, 139.

On appeal, the State does not assert that the photographs excluded from evidence form a substantial part of their case such that the prosecution of Porton will be substantially impaired without the evidence. The State’s failure to demonstrate that appellate review is in the best interest of justice is fatal to their appeal under Section 1053(5). Nevertheless, because Porton is charged with a number of crimes listed in 22 O.S.2011, § 13.1, we find that review of the State’s arguments is authorized by 22 O.S.2011, § 1053(6). A trial court’s decision regarding the admissibility of other crimes evidence is reviewed for an abuse of discretion. Neloms v. State, 2012 OK CR 7, ¶ 12, 274 P.3d 161, 164.

An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms, 2012 OK CR 7, ¶ 35, 274 P.3d at 170.

The trial court extensively analyzed the issue and concluded that the 12,000 photographs seized from a search of Porton’s computer were not part of the res gestae of the crimes charged. The trial court further concluded that the prejudicial effect of the photographs grossly outweighed any probative value they might have to establish Porton’s motive, intent, common scheme or plan in the commission of the charged offenses. The State has failed to establish that the trial court abused its discretion in these findings.

DECISION

The State’s appeal from the District Court order excluding evidence is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 888(B)(1)
2. 21 O.S.2011, § 1123(A)(2)
3. 37 O.S.2011, § 538(F)
4. 21 O.S.2011, § 1021(B)
5. 21 O.S.2011, § 1123(A)(1)
6. 21 O.S.2011, § 1123(A)(5)
7. 21 O.S.2011, § 1123(B)
8. 59 O.S.2011, § 491(A)(2)
9. 21 O.S.2011, § 1114
10. 22 O.S.2011, § 1053(5)
11. 22 O.S.2011, § 1053(6)
12. 22 O.S.2011, § 13.1
13. 12 O.S.2011, § 2404(B)
14. State v. Sayerwinnie, 2007 OK CR 11, 157 P.3d 137
15. State v. Love, 1998 OK CR 32, 960 P.2d 368
16. Lott v. State, 2004 OK CR 27, 98 P.3d 318
17. Walker v. State, 1989 OK CR 65, 780 P.2d 1181
18. Mayes v. State, 1994 OK CR 44, 887 P.2d 1288
19. Conover U. State, 1997 OK CR 6, 933 P.2d 904

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 888(B)(1) - Sodomy - Victim under Sixteen
• Okla. Stat. tit. 21 § 1123(A)(2) - Lewd or Indecent Acts with a Child under Sixteen
• Okla. Stat. tit. 37 § 538(F) - Furnishing an Alcoholic Beverage to a Person under Twenty-One
• Okla. Stat. tit. 21 § 1021(B) - Exhibition of Obscene or Indecent Material
• Okla. Stat. tit. 21 § 1123(A)(1) - Lewd or Indecent Proposal to a Child under Sixteen
• Okla. Stat. tit. 21 § 1123(A)(5) - Performing a Lewd Act in the Presence of a Minor
• Okla. Stat. tit. 21 § 1123(B) - Sexual Battery
• Okla. Stat. tit. 59 § 491(A)(2) - Practicing Medicine without a License
• Okla. Stat. tit. 21 § 1114 - Rape in the Second Degree
• Okla. Stat. tit. 22 § 1053(5) - Expedited State Appeals
• Okla. Stat. tit. 22 § 13.1 - Review of State's Arguments
• Okla. Stat. tit. 22 § 1053(6) - Review of Admissibility of Other Crimes Evidence
• Okla. Stat. tit. 12 § 2404(B) - Governing Other Crimes and Bad Acts Evidence

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:

• State v. Sayerwinnie, 2007 OK CR 11, I 6, 157 P.3d 137, 139.
• Neloms v. State, 2012 OK CR 7, I 12, 274 P.3d 161, 164.
• Neloms, 2012 OK CR 7, I 35, 274 P.3d at 170.
• State v. Love, 1998 OK CR 32, IT 2, 960 P.2d 368, 369.
• Lott v. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334-335.
• Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181, 1183.
• Mayes v. State, 1994 OK CR 44, I 77, 887 P.2d 1288, 1309-10.
• Conover U. State, 1997 OK CR 6, I 24, 933 P.2d 904, 911.