State of Oklahoma v. John Fitzgerald Neloms, Jr.

Norman, Oklahoma criminal defense lawyers represented the Defendant charged with , for First Degree Rape in violation of 21 O.S.2001, § 1114(A)(3) (Count 1), and First Degree Rape by Instrumentation in violation of 21 O.S.Supp.2007, § 1111.1 (Count 2).



2012 OK CR 7, 274 P.3d 161:





¶10 At trial, the State introduced evidence about an unrelated burglary at a residence of the Hofmann family in Norman, Oklahoma, a year-and-a-half earlier. In that case, the Hofmanns were asleep in their bed when an intruder entered their home. The intruder turned on the Hofmanns' computer and used it to conduct internet searches and view images of young girls in sexually suggestive poses and clothing. By following the history of web sites visited, the internet searches stored on the computer, and information from an image that had jammed in the Hofmanns' printer, police printed copies of some of the images that the intruder had viewed. Some of these images were introduced as evidence at trial.2



¶12 Neloms claims that evidence showing that he broke into the Hofmann home a year-and-a-half earlier and masturbated in front of a computer screen to images of young girls was improperly admitted as evidence of other crimes, wrongs, or acts. This Court reviews a trial court's decision to allow introduction of evidence of other crimes for an abuse of discretion. Williams v. State, 2008 OK CR 19, ¶ 36, 188 P.3d 208, 218.



¶13 The State defends the admission of the Hofmann evidence, as it did in the district court, by arguing that the evidence was admissible under 12 O.S.Supp.2007, §§ 2413 and 2414. Section 2413 provides in part that



[i]n 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.



12 O.S.Supp.2007, § 2413(A) (emphasis added). Similarly, Section 2414 provides in part that



[i]n a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.



12 O.S.Supp.2007, § 2414(A) (emphasis added). It is obvious from the plain language of these two statutory provisions, however, that the Hofmann evidence was not admissible under either section. These two sections permit introduction of evidence of other sexual "assaults" or instances of child "molestation." Masturbation in front of a computer monitor displaying images of children is neither sexual assault, nor molestation of a child. The Hofmann evidence was therefore not admissible under either Section 2413 or Section 2414.



¶15 Understanding that the common scheme and plan exception requires the two crimes to be related, the evidence in this case did not support a finding that the break-in at the Hofmann residence was part of a common scheme and plan that led to B.N.'s rape. That is, there is no evidence that B.N.'s rape was in any way dependent on, or facilitated by, the break-in at the Hofmann residence a year-and-a-half earlier. Lacking any dependence or facilitation nexus, the two crimes were independent of each other. Furthermore, while the entries to both dwellings were surreptitious nighttime entries to dwellings while the adult occupants slept, the entries were over a year apart, involved different victims at different locations, and most importantly, one involved a sexual attack against a child, while the other did not. While both of these crimes may have had some superficial similarities as nighttime burglaries of occupied dwellings, "[s]imilar, but independent crimes are not admissible." Owens, 2010 OK CR 1, ¶ 15, 229 P.3d at 1267.



¶17 Because the evidence of the Hofmann break-in satisfies neither the common scheme and plan, nor the identity exceptions to 12 O.S.2001, § 2404(B), the trial court abused its discretion by allowing the evidence at trial. Owens, 2010 OK CR 1, ¶¶ 14-16, 229 P.3d at 1266-1267.

The jury found Neloms guilty and imposed a sentence of life imprisonment on each count.



¶45 The Judgment and Sentence of the district court is AFFIRMED. Nevertheless, this case is REMANDED to the district court for correction of the Judgment and Sentence document, through an order pro tunc, to reflect that Neloms's conviction in Count 1 was for Rape in the First Degree in violation of 21 O.S.2001, § 1114(A)(3). Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon delivery and filing of this decision.