State of Oklahoma v. Ashley Reed Pullen

Tulsa, Oklahoma criminal defense lawyers represented the Defendant charged with First Degree Rape by Narcotic or Anesthetic Agent, in violation of 21 O.S.2011, § 1111(A)(4).



2016 OK CR 18, 387 P.3d 922:



¶5 Appellant fails to show actual error, let alone plain error, from the admission of the propensity evidence in this case. Malone v. State, 2013 OK CR 1, ¶ 41, 293 P.3d 198, 211-12 (discussing three-part plain error test). Reviewing the propensity evidence in light of the factors for admissibility articulated in Horn v. State, 2009 OK CR 7, ¶ 40, 204 P.3d 777, 786 and Johnson v. State, 2010 OK CR 28, ¶ 6, 250 P.3d 901, 903, the trial court did not abuse its discretion. M.W., C.S., T.B. and L.P. described a similar pattern in which all four women: 1) were in their early 20s; 2) were lured in January or early February 2014 during the nighttime to Appellant's apartment under the guise of meeting their Facebook friend Corey Davis; 3) waited for Corey at Appellant's apartment for a substantial period of time while Corey communicated via text message and online that he would arrive soon; 4) drank shots of vodka at Appellant's suggestion; 5) blacked out for a lengthy period of time after drinking the shots; 6) awoke the next morning in Appellant's apartment with only Appellant and/or his young son present; and 7) never met Corey Davis. The State also proved by clear and convincing evidence that Appellant sexually assaulted M.W., C.S., T.B. and L.P. while they were blacked out at his apartment. 12 O.S.2011, § 2413(A), (D).



¶10 Appellant timely objected to Shandi Clouse's testimony that K.S. told her she had been raped, thus preserving this issue for appellate review. Again, we review a trial court's ruling admitting evidence for an abuse of discretion. See Levering, 2013 OK CR 19, ¶ 15, 315 P.3d at 397. The record confirms that K.S. made the statement to Shandi about being raped roughly twelve (12) hours after the rape. Title 12 O.S.2011, § 2803(2) provides that a statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule.



¶11 Upon review, we find that the trial court abused its discretion in admitting this testimony. Taylor v. State, 2011 OK CR 8, ¶¶ 29-31, 248 P.3d 362, 372-73. There is no persuasive showing that K.S. was still under the excitement of the startling event or that the statement's nearness to the stimulating event excludes the possibility of premeditation and fabrication. Id., 2011 OK CR 8, ¶ 29, 248 P.3d at 372. The passage of twelve hours provided K.S. an extended opportunity for reflection. It appears that this opportunity for reflection, as well as K.S.'s previous failure to disclose the rape to several people, caused K.S. renewed anguish. Even though K.S.'s statements were spontaneous, and there is no evidence that she told anyone about the rape prior to telling Shandi Clouse, the record shows that the challenged statement was not made under the stress of the startling event, i.e., the rape itself, but events which transpired in the twelve hours afterwards. "The substantial lack of contemporaneity undermines the reliability of the statements here and thereby defeats the rationale for the hearsay exception." Id., 2011 OK CR 8, ¶ 30, 248 P.3d at 373.



¶12 The error arising from the admission of this testimony was nonetheless harmless. K.S. testified in court to virtually the same thing in great detail and was subject to cross-examination. Relief is therefore denied for Proposition III. Beavers v. State, 1985 OK CR 146, ¶ 7, 709 P.2d 702, 705; Martin v. State, 1973 OK CR 269, ¶ 8, 510 P.2d 1394, 1395; 20 O.S.2011, § 3001.1.

The Defendant was found guilty and was sentenced to life in prison.



¶17 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. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision.