State of Oklahoma v. Felipe Perez, Sr.

Cordell, Oklahoma criminal defense lawyer represented the Defendant charged with Lewd or Indecent Acts to a Child Under Sixteen, in violation of 21 O.S.Supp.2018, § 1123.



2023 OK CR 1, 526 P.3d 46:



¶4 The challenged evidence here met all of the factors required for admissibility under 12 O.S.2011, § 2414. In Horn v. State, 2009 OK CR 7, ¶ 40, 204 P.3d 777, 786, we required the trial court to consider the following factors when considering the admission of sexual propensity evidence: "1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence." Id., 2009 OK CR 7, ¶ 40, 204 P.3d at 786. Horn instructs the trial court, when considering the dangers posed by the admission of propensity evidence, to consider: "1) how likely is it such evidence will contribute to an improperly-based jury verdict; and 2) the extent to which such evidence will distract the jury from the central issues of the trial." Id. In addition, the propensity evidence must be proven by clear and convincing evidence. Id.



¶5 In the present case, the testimony of R.P. and N.C. was probative and necessary to support the State's burden of proof. Appellant took the stand, flatly denied E.A.'s version of events and claimed that E.A., R.P. and N.C. were all lying and that their stories were made up. Testimony from R.P. and N.C. describing their lewd molestation by Appellant demonstrates his propensity to molest young, prepubescent female grandchildren in his family, in the setting of the family home, with other family members often nearby. This evidence was relevant to prove whether E.A. was molested by Appellant, her granduncle, as charged in the present case. The testimony of R.P. and N.C. tended to show that the victim in the present case was credible, thus refuting Appellant's claim at trial of innocence. There was no less prejudicial evidence the State could use to meet its burden in this regard. The State proved by clear and convincing evidence the existence of the prior similar instances of child molestation committed by Appellant.



¶6 There is no question this evidence was prejudicial to Appellant at trial. "The real question, however, is whether it is unfairly so." James v. State, 2009 OK CR 8, ¶ 10, 204 P.3d 793, 797 (citing 12 O.S.2001, § 2403). The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. 12 O.S.2011, § 2403. This is simply not a case where the sexual propensity evidence had the potential to contribute to an improperly based jury verdict. The sexual propensity evidence provided critical insight into Appellant's motive and capacity to commit these crimes as well as the similar modus operandi he used over the years to victimize the young, prepubescent grandchildren in his family. It is true, as Appellant points out, that R.P. and N.C. were molested years before the victim in the present case. This fact, however, does not preclude admission considering the similarities described in the testimony of all three girls.

The Defendant was found guilty and was sentenced in accordance with the jury's verdict.