State of Oklahoma v. Alton A. Horn, III

Oklahoma City, Oklahoma criminal defense lawyer represented the Defendant charged with First Degree Rape (Counts 1-18) (21 O.S.1991, § 1114); and Forcible Oral Sodomy (Counts 19-30) (21 O.S.Supp. 1992, § 888),



2009 OK CR 7, 204 P3d 777 (2009):



¶10 The record shows the State filed a pre-trial Notice of Intent to Introduce Evidence of Other Crimes, specifically the sexual offenses committed by Appellant in Beaver County, in order to prove Appellant's "motive, intent, identity and method of operation." Six months later, the State filed another notice outlining its intent to offer evidence of Appellant's sexual assault on 14 year old A.H. as res gestae or in the alternative to prove Appellant's "plan, design, intent and lack of mistake." The defense objected to both motions and a hearing was held. At the hearing, the prosecutor argued the evidence was admissible under 12 O.S.2001, § 2404(B) and 12 O.S.Supp.2007, § 2413(A). Defense counsel argued the evidence was not relevant and the application of § 2413(A) violated his constitutional rights and could not be applied retroactively to his case. The trial court overruled the defense objection and admitted the evidence under both §§ 2404(B), 2413 and 2414. 1



¶13 Title 12 O.S. Supp. 2007, § 2413 provides:



A. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.



B. In a case in which the state intends to offer evidence under this rule, the attorney for the state shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen (15) days before the scheduled date of trial or at such later time as the court may allow for good cause.



C. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.







¶15 Federal courts have said that Rule 413, "provide[s] an exception to the general rule codified in Rule 404(a) which prohibits the admission of evidence for the purpose of showing a defendant's propensity to commit bad acts." United States v. Bennally, 500 F.3d 1085, 1089 (10th Cir. 2007). See also United States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008) (Rule 413(a) "allows the admission of evidence of prior sexual assaults for any relevant purpose, including to show propensity, in sexual assault cases."); United States v. Hawpetoss, 478 F.3d 820, 823 (7th Cir. 2007) (Rule 413 "create[s] an exception to the general rule against 'propensity evidence' found in [Rule 404(b)].") Numerous federal courts have found Rule 413(a) withstands due process and equal protection challenges. See Dillon, 532 F.3d at 387; Bennally, 500 F.3d at 1092; Hawpetoss, 478 F.3d at 823; United States v. Seymour, 468 F.3d 378, 385 (6th Cir. 2006); United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001).



¶16 In conducting a due process analysis of Rule 413 in United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998), the Tenth Circuit Court of Appeals stated:



In order to prove a due process violation defendant must show that Rule 413 fails the "fundamental fairness" test and "violate[s] those fundamental conceptions of justice which lie at the base of our civil and political institutions." Dowling v. United States, 493 U.S. 342, 352-53, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990) (citations and quotations omitted). The Supreme Court has defined narrowly those infractions that violate fundamental fairness, and declared that "[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Id. at 352, 110 S. Ct. at 674; see also United states v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752 (1977).





¶25 Here, Appellant has failed to show that the exclusion of sexual propensity evidence is so "deeply rooted" in Oklahoma as to fall within the narrowly defined "fundamental fairness" arena.



¶26 Further, § 2404(B) allows for the introduction of evidence of a defendant's other crimes or bad acts to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." 12 O.S. 2001, § 2404(B). Section 2404(B) is virtually the same as Federal Rules of Evidence 404(b). That § 2404(B) permits the introduction of evidence of a defendant's other crimes, despite the risk of prejudice, weighs heavily in favor of the conclusion that § 2413 does not fall within the narrowly defined "category of infractions that violate fundamental fairness." Castillo, 140 F.3d at 881.



¶27 Section 2413 specifically states, "[t]his rule shall not be construed to limit the admission or consideration of evidence under any other rule." 12 O.S. Supp.2007, § 2413 (C). By this language, the Legislature clearly intended relevant propensity evidence to be treated as any other relevant evidence and thus subject to the weighing of its probative value versus its prejudice as set forth in 12 O.S.2001, §§ 2402 and 2403.2 With the safeguards put in place by these sections, any due process concerns posed by the admission of the evidence under § 2413 are eliminated.



¶28 For the foregoing reasons, Appellant has failed to show that § 2413 violates the Due Process Clause of either the State or Federal Constitution.

The trial court dismissed Counts 5, 19, and 23, after sustaining in part the defendant’s demurrer to the evidence at the conclusion of the State’s case. The jury acquitted the defendant on Counts 12-17. The jury found the defendant guilty on the remaining counts and recommended as punishment fifty (50) years imprisonment in each of Counts 1-4, 6-11 and 18, and ten (10) years imprisonment in each of Counts 20-22, and 24-30.



Affirmed