State of Oklahoma v. Charles Neil Foote

Chandler, Oklahoma criminal defense lawyer represented the Defendant charged with Lewd or Indecent Acts to a Child Under 16, in violation of 21 O.S.Supp.2013, § 1123(A)(2).



This case concerns Defendant's alleged horrific sexual abuse of MC when she was between the ages of 6 and 8. Terri Henderson and her daughter MC lived in a trailer in Wellston with Henderson's boyfriend, the boyfriend's mother, Defendant, and some other people. Henderson had to be at work early, so she would leave MC with Defendant as MC waited on the porch for the school bus to arrive. MC called Defendant "Dory." The other adults living in the trailer would usually be asleep at this time. When MC was about 10 years old, and she and Henderson were living in Tulsa away from Defendant, MC disclosed to her mother that Defendant sexually abused her during the time they lived in Wellston. Henderson contacted the Lincoln County Sheriff's Department regarding the disclosure and law enforcement set up a forensic interview and a sexual assault nurse examination (SANE) for MC.



During her interview with Vanessa Parsons at the Unzner Child Advocacy Center in Shawnee, then 10 year old MC disclosed the following: Defendant (Dory) touched her "pee pee" (her term for vagina) with his fingers, with his "pee pee" (her term for his penis) and with his mouth; Appellant would position MC on her hands and knees on the bed in Defendant's bedroom and Defendant would stand behind her and place his penis into her vagina and go up and down; when Defendant put his mouth on her vagina, it would bleed and she would see blood on his lips; Defendant put his penis inside her mouth and moved it around until "something gross" came out of his penis and he gave her milk to wash it down with; and Defendant showed her "porn", including an instance where an adult woman was on her hands and knees and a man knelt behind her as he placed his penis into her vagina. As MC recounted this abuse, her demeanor changed and she became frightened, pulling a blanket over her, crossing her arms, and clinging to a baby doll.



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There are hearsay exceptions for the admission of child hearsay. Section 2803.1(A) provides a specific exception to the general rule prohibiting the admission of hearsay. This section allows the admission at trial of statements made by a child under the age of thirteen . . . regarding "any act of sexual contact performed with or on the child against the child . . . by another." The child must testify or be "available to testify at the proceedings in open court or through an alternative method pursuant to the provisions of the Uniform Child Witness Testimony by Alternative Methods Act . . ." 12 O.S.2021, § 2803.1(A)(2)(a). The trial court must also hold a hearing and determine that the statements are "inherently trustworthy." 12 O.S.2021, § 2803.1(A)(1). The State filed a notice indicating it would offer Parsons' testimony under Section 2803.1 and at a hearing pursuant to that section, the court found the testimony inherently trustworthy. Under the old Roberts analysis, once the trial court held the Section 2803.1 hearing and determined the statements were inherently trustworthy, the statements would be admitted.



However, post-Crawford, a different analysis must occur. While Section 2803.1 provides a hearsay exception, it does not solve the problem in this case, which is that the State did not call MC as a witness, either at trial or at preliminary hearing; therefore, Appellant had no opportunity to cross examine her. Under the post-Crawford analysis set forth above, MC's statements to Parsons were inadmissible since they were testimonial in nature and Appellant had no prior right of confrontation. In order to satisfy Crawford, the child must testify when her hearsay statements are unconfronted; it is not enough that she is available to testify. We urge the Legislature to amend Section 2803.1 to conform to the current post-Crawford requirements by deleting the language that a child victim is only required to be available.3 To be clear, if Crawford applies and the defendant had no prior opportunity to cross-examine the victim, then the victim must testify in person at trial using those methods authorized which protect child victims.



In this case, however, our analysis must continue. Confrontation rights can be waived, either by a defendant's actions or by those of his attorney. Ludlow v. State, 1988 OK CR 178, ¶¶ 10-13, 761 P.2d 1293, 1294-96 (failure to object on Confrontation Clause grounds deemed a waiver if trial counsel's strategy was a legitimate trial tactic); Henderson v. State, 1983 OK CR 38, ¶ 11, 661 P.2d 68, 70 (defense counsel's failure to object to hearsay amounted to waiver of right to confrontation). See also Hemphill v. New York, __ U.S. __, 142 S. Ct. 681, 694 (2022) (Alito, J., concurring) (a defendant can impliedly waive his Sixth Amendment right to confrontation through his conduct or that of counsel).



Defendant was found guilty and was sentenced to forty-five years imprisonment.

Affirmed