Case Number: 2018 OK CR 9

Judge: Robert L. Hudson

Court: Oklahoma Court of Criminal Appeals

Plaintiff's Attorney: SARAH McAMIS
TANYA WILSON
ASSISTANT DISTRICT ATTORNEYS

MIKE HUNTER
OKLAHOMA ATTORNEY GENERAL
JENNIFER B. WELCH
ASSISTANT ATTORNEY GENERAL

Defendant's Attorney: Steven W. Vincent
NEILSON LEA

Description: Appellant contends that the trial court abused its discretion by allowing evidence of prior bad acts to be admitted at trial. Appellant's claim primarily centers on the introduction of evidence relating to a violent domestic incident that occurred between Appellant and the victim's mother in September of 2015--approximately eight months after the charged offense.2 "This Court reviews a trial court's decision to allow introduction of evidence of other crimes for an abuse of discretion." Neloms v. State, 2012 OK CR 7, ¶ 12, 274 P.3d 161, 164. "An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented." Pullen v. State, 2016 OK CR 18, ¶ 4, 387 P.3d 922, 925.
¶4 On March 9, 2016, the State provided written notice of its intention to offer evidence of other crimes pursuant to 12 O.S.2011, § 2404(B) and related case law. Therein, the State sought to introduce, inter alia, evidence about a domestic altercation between Appellant and Ledbetter that occurred in September of 2015. During this clash, Appellant's violent behavior included choking Ledbetter, punching her multiple times in the head, dragging her by her hair, and stomping on her. An in camera hearing was conducted on April 5, 2016--the day before Appellant's trial commenced. During the hearing, the prosecutor argued the evidence was being offered "to show a lack of accident or mistake" in response to Appellant's defense "that this was all an accident, this wasn't forceful". At the conclusion of the hearing, the trial court granted the State's request to present this evidence. The trial court determined this evidence was relevant and admissible to show lack of accident or mistake.3
¶5 Evidence of other crimes may be admissible to establish specific things, including absence of mistake or accident--the purpose for which the evidence was admitted in this case. 12 O.S.2011, § 2404(B); Marshall v. State, 2010 OK CR 8, ¶ 38, 232 P.3d 467, 477; Lott v. State, 2004 OK CR 27, ¶ 40, 98 P.3d 318, 334. Evidence of other crimes must be (a) probative of a disputed issue of the charged crime; (b) there must be a visible connection between the crimes; (c) the evidence must be necessary to support the State's burden of proof; (d) proof of the evidence must be clear and convincing; (e) the probative value of the evidence must outweigh its prejudicial effect; and (f) the trial court must instruct jurors on the limited use of the testimony at the time it is given and during final instructions. Marshall, 2010 OK CR 8, ¶ 38, 232 P.3d at 477.

¶6 We evaluate the challenged other crimes evidence in the current case under these requirements. At trial, the challenged evidence was chiefly introduced through the testimony of Brittany Ledbetter, the mother of the infant victim, A.J. The trial court instructed the jurors on the limited use of this testimony at the time the testimony was given and during the court's final charge. Notably, even though Appellant challenged this evidence during the pre-trial hearing on its admissibility, Appellant failed to timely or specifically renew his objection to this evidence at trial. Appellant has thus waived all but plain error of this claim. Lowery v. State, 2008 OK CR 26, ¶ 9, 192 P.3d 1264, 1268. "Under the plain error test, an appellant must show an actual error, that is plain or obvious, affecting his substantial rights." Baird v. State, 2017 OK CR 16, ¶ 25, 400 P.3d 875, 883. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id.; Stewart v. State, 2016 OK CR 9, ¶ 12, 372 P.3d 508, 511. Appellant fails to show actual or obvious error.
¶7 The principal issue in this case was whether Appellant accidentally hurt A.J., or if he willfully or maliciously injured A.J. as the State contended. 21 O.S.Supp.2014, § 843.5(A); OUJI-CR (2d) 4-35A (Supp. 2012); Cf. Fairchild v. State, 1999 OK CR 49, ¶ 47, 998 P.2d 611, 622 (stating that child abuse murder is a general intent crime requiring, at a minimum, that the State prove the defendant "willfully" injured or willfully used unreasonable force against a minor child). The challenged evidence was probative of this disputed issue and was necessary to support the State's burden of proof, i.e., that Appellant acted willfully or willfully used unreasonable force when he injured A.J. The evidence demonstrated that Appellant had purposefully been physically aggressive and violent with another member of his household--a loved one--and countered Appellant's claim of accident or mistake.4
¶8 Moreover, contrary to Appellant's assertion on appeal,5 we find the probative value of the challenged evidence was not substantially outweighed by the danger of unfair prejudice. "When balancing the relevancy of evidence against its prejudicial effect, the trial court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Welch v. State, 2000 OK CR 8, ¶ 14, 2 P.3d 356, 367. That Appellant caused A.J.'s injuries was for the most part uncontroverted. Whether Appellant accidentally injured A.J. or "willfully and maliciously" injured A.J. was the pivotal issue. The challenged evidence was relevant to counter Appellant's claim of accidental or mistaken injury and was properly admitted pursuant to 12 O.S.2011, § 2404(B) for this purpose, i.e., to discredit Appellant's defense as opposed to proving action in conformity with his past character. See Cole v. State, 2007 OK CR 27, ¶ 23 n.5, 164 P.3d 1089, 1102 n.5 (evidence of prior crimes was admitted "more as a matter of discrediting a defense than proving action in conformity with past character.").

¶9 Thus, under the circumstances presented in this case, the probative value of the challenged evidence clearly outweighed its prejudicial effect and was necessary to support the State's burden of proof. Appellant has failed to demonstrate the trial court abused its discretion, i.e., took "an unreasonable or arbitrary action . . . without proper consideration of the facts and law pertaining to the matter at issue." Neloms, 2012 OK CR 7, ¶ 35, 274 P.3d at 170. And, for the reasons discussed above, admission of the challenged evidence "did not result in a miscarriage of justice or constitute a substantial violation of a constitutional or statutory right." Welch, 2000 OK CR 8, ¶ 10, 2 P.3d at 366. Appellant's first proposition of error is denied.
II.
¶10 Appellant argues error occurred when both the State and trial court failed to specify the exception under which the proffered other crimes evidence was admissible. As noted in Proposition I, Appellant failed to timely object to the admission of the challenged evidence at trial. Moreover, the record provided on appeal does not show that Appellant objected to the State's Burk's6 notice or to the trial court's limiting instructions on this ground. Appellant has therefore waived all but plain error review of this claim. Lowery, 2008 OK CR 26, ¶ 9, 192 P.3d at 1268; Welch, 2000 OK CR 8, ¶ 9, 2 P.3d at 365. No such error occurred.
¶11 In Welch, 2000 OK CR 8, ¶ 9, 2 P.3d at 366, this Court reminded both trial judges and prosecutors of "the importance of delineating the exception and purpose for which other crimes evidence is being offered." The Court instructed that "[s]pecific rulings ensure fairness to the accused as well as facilitate expedient review of claims contesting admission of other crimes evidence." Id. The record in the present case shows Appellant was adequately apprised of the State's intent to introduce the other crimes evidence specifically to counter Appellant's claim of accident or mistake. Moreover, given the evidence presented against Appellant coupled with his own trial testimony, we find the trial court's limiting instruction does not amount to plain error. Id. Appellant's final proposition is denied.

Outcome: 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. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Plaintiff's Experts:

Defendant's Experts:

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