Curtis v. State

1988 OK CR 185, 763 P.2d 377, 1988 Okla. Crim. App. LEXIS 207, 1988 WL 97585

• Court: Court of Criminal Appeals of Oklahoma
• Decided: September 7, 1988
• Docket: F-85-398
• Status: Published

Opinions

OPINION

PARKS, Judge:

Ronald Hansel Curtis, appellant, was tried by jury and convicted of Lewd Molestation (21 O.S.Supp.1984, § 1123) (Count I), and Sodomy (21 O.S.1981, § 886) (Count II), in Noble County District Court, Case No. CRF-84-52, before the Honorable Lowell Doggett, District Judge. The jury set punishment at twenty (20) years imprisonment on both counts, and the trial judge, pursuant to 22 O.S.1981, § 928, reduced the sentence on Count II to ten (10) years, the maximum allowable under 21 O.S.1981, § 886, and ordered the sentences to run concurrently. We reverse and remand for a new trial.

A recitation of the facts is unnecessary as we find merit in appellant’s third assignment of error in which he asserts that he was improperly denied his constitutional right to confront the witnesses against him when the trial court erroneously admitted at trial a videotaped interview of A.C. on June 1,1984, by social worker Ronni Blunt. On appeal, the State contends that the videotape was properly admitted under 10 O.S. Supp.1984, § 1147. We disagree.

The videotaped statements made by A.C. to social worker Ronni Blunt during an interview on June 1,1984, were hearsay. See 12 O.S.1981, § 2801. “Hearsay is not admissible except as provided by law.” 12 O.S.1981, § 2802. Unless hearsay falls within an exception to the hearsay rule provided in the Oklahoma Evidence Code or other enactment of the Legislature, it is inadmissible, as Oklahoma courts are not free to create new exceptions. See 1 L. Whinery, Guide to the Oklahoma Evidence Code 277 (1985). We now turn to the question of whether the videotape was properly admitted under 10 O.S.Supp., § 1147, as urged by the State.

Section 1147 applies “only to a proceeding affecting the parent-child, guardian-child or family relationship in which a child twelve (12) years of age or younger is alleged to have been abused_” 10 O.S. Supp.1984, § 1147(A). Title 22 O.S.Supp. 1986, § 752, generally follows the form of Section 1147, but “shall apply only to a proceeding in the prosecution of an offense alleged to have been committed against a child twelve (12) years of age or younger....” A comparison of the language employed in Sections 1147 and 752 indicates that while certain prerecorded statements may be admissible under Section 752 in criminal trials, Section 1147 has no application in criminal cases. See 1984 Okla. Sess.Laws 369. A statute must be held to mean what it plainly expresses, and there is no room for interpretation where the language employed is clear and unambiguous. See Abshire v. State, 551 P.2d 273, 274 (Okla.Crim.App.1976). Further support is derived from the fact that Section 1147, unlike Section 752, does not require the child to testify or be declared unavailable, and thus creates doubt as to its validity against a constitutional challenge for denial of an accused’s fundamental right to confrontation. See Note, The Sexually Abused Infant Hearsay Exception: A Constitutional Analysis, 8 JJuv.L. 59, 68-73 (1984); Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1748-49 (1983).

The fact that Section 752 was not available at the time of trial does not justify the admission of the videotape under Section 1147, a statute which, for the reasons already given, is clearly not applicable in criminal proceedings. Finally, with regard to the suggestion by the dissent that the videotape was admissible under 12 O.S. Supp.1984, § 2803.1, it should be noted that Section 2803.1 by its own terms does not purport to apply to prerecorded videotaped statements, and does not contain the critical foundational safeguards provided for in 22 O.S.Supp.1986, § 752, which specifically address the admission of prerecorded videotaped statements. The more specific of two applicable provisions must be utilized in a given situation. Holder v. State, 556 P.2d 1049, 1053 (Okla.Crim.App.1976). The fact that Section 752 was not available at the time of trial does not justify stretching Section 2803.1 beyond its intended limitations. We believe the enactment of Section 752 indicates that the Legislature did not intend that prerecorded videotaped statements be admissible under Section 2803.1. To hold otherwise, would make the enactment of Section 752 a useless act. The Legislature is never presumed to have done a vain thing. Loffland Bros. Equipment v. White, 689 P.2d 311, 314 (Okla. 1984). We cannot say the admission of the June 1, 1984, videotaped interview of A.C. by Ronni Blunt was harmless error beyond a reasonable doubt.

For all of the foregoing reasons, the judgments and sentences are REVERSED and REMANDED for a NEW TRIAL.

BRETT, P.J., concurs. BUSSEY, J., dissents.