State of Oklahoma v. Malik Omar Vance

Oklahoma City, Oklahoma criminal defense lawyer represented the Defendant charged with f Rape in the First Degree in violation of 21 O.S.Supp.2011, § 1114(A).



2022 OK CR 25, 519 P.3rd 526:



¶3 On the evening of October 20, 2017, M.P. went to Appellant's apartment and joined Appellant and other friends playing games and drinking. A.L, Appellant's girlfriend who also lived in the apartment, went to sleep before the other guests left or went to sleep. After a few hours, in the early morning of October 21, 2017, M.P. went to sleep alone in the spare bedroom of Appellant's apartment because she did not feel comfortable driving home after drinking. M.P. was wearing leggings when she went to sleep. When M.P. awoke, she was no longer wearing her leggings or underwear and Appellant's penis was inside her vagina. M.P. testified that when Appellant asked her if she liked what he was doing, she responded "no." M.P. also testified that she tried to move her body to get away but could not do so. M.P. testified that after Appellant "finished" and left the room, she gathered herself, got dressed, and left the apartment. M.P. went to the hospital, reported the event to law enforcement, and completed a SANE exam. M.P. texted A.L. after leaving the apartment and informed A.L. that she had woken up to Appellant penetrating her. The SANE examination results confirmed Appellant's sexual intercourse with M.P.



¶4 In Proposition I, Appellant argues that the trial court improperly admitted prejudicial evidence of prior bad acts. Appellant's objection was preserved during trial; therefore, the claim will be reviewed for an abuse of discretion by the trial court.



¶5 An abuse of discretion is a clearly erroneous conclusion and judgment, contrary to the logic and effect of the facts presented. Pullen v. State, 2016 OK CR 18, ¶ 4, 387 P.3d 922, 925; Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. The trial court is given considerable deference in deciding to admit or exclude evidence and we will not disturb the trial court's decision absent an abuse of discretion. Pavatt v. State, 2007 OK CR 19, ¶ 42, 159 P.3d 272, 286. "[T]his Court may sustain the admission of hearsay on a different theory, so long as the alternative basis for admission finds support in the record." McClendon v. State, 1989 OK CR 29, ¶ 7, 777 P.2d 948, 951.



¶6 Title 12, Section 2404(B) allows evidence of other crimes, wrongs, or acts for the limited purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Additionally,



[e]vidence 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.



Kirkwood v. State, 2018 OK CR 9, ¶ 5, 421 P.3d 314, 316 (citing Marshall v. State, 2010 OK CR 8, ¶ 38, 232 P.3d 467, 477). Section 2413 of Title 12 of the Oklahoma Statutes also allows evidence of another sexual assault to be admitted to be considered for its bearing on any matter to which it is relevant. Section 2413(B) requires only that the state "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." 12 O.S.2011, § 2413.



¶7 When the State seeks to introduce evidence pursuant to Section 2404, of a crime other than the one charged, it must comply with the procedures in Burks v. State, 1979 OK CR 10, ¶¶ 12-18, 594 P.2d 771, 774-75, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922. The party opposing the admission of evidence has the burden to show it is substantially more prejudicial than probative. Welch v. State, 2000 OK CR 8, ¶ 14, 2 P.3d 356, 367. When the state seeks to introduce sexual propensity evidence pursuant to Section 2413, the State must notify the defense at least fifteen (15) days before the trial, and the evidence is subject to the balancing test for all relevant evidence--whether its probative value is substantially outweighed by its prejudicial effect. See Horn v. State, 2009 OK CR 7, ¶ 27, ¶ 40, 204 P.3d 777, 784, 786.



¶8 A.L. testified at trial that she had a similar encounter to the charged offense with Vance when she was 16 years old. She testified that after a night of drinking, she went to sleep alone, and woke up to Vance touching her. She testified that she was in and out of consciousness while oral sex and sexual intercourse occurred. She testified that at the time she did not fully understand what occurred and she entered into a dating relationship with Vance because she did not want to have had "casual sex" with someone. She testified that after going through therapy, her perception of the event changed, and she realized that she had been sexually assaulted by Vance.



¶9 Here, the testimony of A.L. was clearly propensity evidence and the trial court should have determined admissibility of the testimony pursuant to Section 2413, through review of the relevance of propensity factors set out in Horn. We said in Horn that



trial courts should consider, but not be limited to the following factors: 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. When analyzing the dangers that admission of propensity evidence poses, the trial court should 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. . . . Any other matter which the trial court finds relevant may be considered. In particular, as proof of the prior act may largely rest upon testimony of the victim of that prior act, the credibility of that individual would be a factor for the court's consideration. Further, the propensity evidence must be established by clear and convincing evidence. If the defense raises an objection to the admission of the propensity evidence, the trial court should hold a hearing, preferably pre-trial, and make a record of its findings as to the factors set forth above.



Horn, 2009 OK CR 7, ¶ 40, 204 P.3d at 786 (footnotes and internal citations omitted).



¶10 The testimony of A.L. was evidence of Appellant's commission of another offense of sexual assault and the trial court should have first considered its admissibility as sexual propensity evidence pursuant to Section 2413. However, the evidence was admitted under Section 2404 to show Vance's motive or intent, or to show that Vance did not make a mistake or accident. The record shows the procedures required for admission of the evidence were followed. A review of the sexual propensity evidence in light of the Horn factors would also show that the evidence was more probative than prejudicial. Had the evidence been admitted as propensity evidence, it would have been admitted for its bearing on any matter to which it was relevant.



¶11 Although the trial court did not review the evidence for admission as sexual propensity evidence, the testimony was found admissible under a valid legal theory. Therefore, there was no abuse of discretion by the trial court. Proposition I is denied.







OUJI-CR 9-10A



EVIDENCE - EVIDENCE OF DEFENDANT'S PRIOR SEX CRIMES



You have heard evidence that the defendant may have committed another/other offenses(s) of (sexual assault)/(child molestation) in addition to the offense(s) for which he/she is now on trial. You may consider this evidence for its bearing on any matter to which it is relevant along with all of the other evidence and give this evidence the weight, if any, you deem appropriate in reaching your verdict. You may not, however, convict the defendant solely because you believe he/she committed this/these other offense(s) or solely because you believe he/she has a tendency to engage in acts of (sexual assault)/(child molestation). The prosecution's burden of proof to establish the defendant's guilt beyond a reasonable doubt remains as to each and every element of each/the offense charged.

The Defendant was found guilty and was sentenced to 13 years in prison.



¶27 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. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.