Folks v. State

2008 OK CR 29, 207 P.3d 379, 2008 Okla. Crim. App. LEXIS 27, 2008 WL 5265148
CourtCourt of Criminal Appeals of Oklahoma
DecidedDecember 19, 2008
DocketF-2007-1204
StatusPublished
Cited by11 cases

This text of 2008 OK CR 29 (Folks v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Folks v. State, 2008 OK CR 29, 207 P.3d 379, 2008 Okla. Crim. App. LEXIS 27, 2008 WL 5265148 (Okla. Ct. App. 2008).

Opinions

SUMMARY OPINION

L UMPKIN, Presiding Judge.

4 1 Appellant Samuel Clifton Folks, II, was tried by jury and convicted of Sexually Abusing a Minor (10 0.8.8upp.2002, § 7115), Case No. CF-2006-5452, in the District Court of Tulsa County. The jury recommended as punishment eight (8) years imprisonment and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

2 Appellant raises the following propositions of error in support of his appeal:

I. The admission of a DVD showing DR being interviewed by a social worker was error which prejudiced the jury [381]*381against Appellant on the issues of both guilt and punishment.
II. The trial court violated Appellant's statutory and constitutional right to present his defense when the trial court ruled that Appellant could not testify that he had agreed to take a polygraph test.
III. The trial court's failure to answer the jury's question regarding the nature of the offense being tried generated an unacceptable risk that some, and perhaps all, of the jurors convicted Appellant in the absence of a finding that Appellant committed the charged offense.
IV. Collateral estoppel barred Appellant's conviction for sexual abuse, therefore his conviction should be reversed with instructions to dismiss; in the alternative Appellant's conviction should be reversed because he received ineffective assistance of counsel when trial counsel failed to raise the issue at trial.
V. The prosecutor's impeachment of defense witness Frieda Walls with the fact that she had pled guilty even though the plea did not result in a conviction was error which requires that Appellant's conviction be reversed.
VI. Appellant's right to cross-examine the witnesses against him was violated when the trial court restricted his right to cross-examine a key prosecution witness.
VII. Appellant was deprived of a fair trial when the prosecution subjected DR to "court school".
VIII. Appellant was deprived of a fair trial when the majority of the evidence against him was in the form of hearsay.

13 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification is warranted under the law and the evidence.

T4 Appellant was convicted of sexually abusing five year old D.R. At the time of the crime, Appellant lived with D.R.'s mother, Frieda Walls. Appellant and Walls had two children, six year old J.F. and three year old S.F., III. D.R. was not Appellant's biological child. The State's evidence showed that on October 29, 2006, Coletha Medlock, a cousin of Frieda Walls, was babysitting the children at her home. Medlock testified at trial that J.F. told her that he saw Appellant put his penis in D.R.'s mouth and her bottom. She testified to having heard D.R. make similar comments two years earlier. Medlock also said she observed D.R. imitate having sexual intercourse. Medlock subsequently called the police. Officer Richard responded and spoke with J.F. He repeated the statements he had made to Medlock. He also said he had seen it happen several times. Based upon this information, Officer Richard reported the information to detectives. J.F. repeated his statements to Betsy Boyd, an investigator with the Department of Human Services. J.F. and D.R. were subsequently placed into protective custody.

15 On November 1, 2006, both children were interviewed at the Child Abuse Network/Justice Center by forensic interviewer Rose Perry. These interviews were taped and the DVD of D.R.'s interview was admitted at trial as State's Exhibit 1. On the DVD, D.R. said "daddy was humping me", that she had told this to her cousin "Squeaky" (Cole-tha Medlock), that she was on the floor at her home in the front room when it happened, that her clothes were on but her daddy's clothes were off, that when her daddy was humping her that his "weenie" was touching her "stuff" inside her clothes, that "snot came out of his weenie" and that it hurt when he put it "way up there." D.R. also said that her brother saw when "daddy made me suck his dingaling", that her daddy's "dingaling" was "big and hard", and that she told her mother what happened.

T6 At trial, the then 7 year old J.F. retracted his earlier story and denied ever seeing Appellant sexually abuse D.R. He testified he remembered talking with Rose Perry at the Child Abuse Center but he was mistaken in his allegation of sexual abuse [382]*382against Appellant. He said he did not remember talking to his grandmother about Appellant molesting D.R., and he said he did not tell Squeaky, Officer Richard, Ms. Boyd, or the prosecutor that Appellant had molested D.R.

T7 D.R. testified on direct examination consistent with her statements made during the interview at the Child Abuse Center. However, on eross-examination, she first testified she had never seen Appellant's penis but then admitted she had previously testified she had said she had seen it. She said she did not remember saying that anything had come out of Appellant's penis, but after having her memory refreshed by looking at the transcript of the previous hearing, she remembered testifying that "snot" had come out of his penis.

18 On re-direct examination, D.R. was asked if something "nasty" had happened on the couch with Appellant. D.R. said something had, but she did not remember what. D.R. then responded she was five when Appellant did something nasty to her on the couch. D.R. said Squeaky did not tell her what to say and the things she said Appellant did to her actually happened.

19 Appellant took the stand in his own defense and denied sexually abusing D.R. He blamed the accusations on Coletha Medlock who he claimed had made up the allegations and coached D.R. to repeat them.

€10 In Proposition I, we find the DVD of D.R.'s recorded interview at the Child Abuse Network/Justice Center (State's Exhibit 1) was properly admitted under 12 0.8.8upp.2004, § 2808.1, as D.R. testified at trial. Section 2808.1 is a specific exception to the general hearsay rule and allows for the admission of a statement by a child under thirteen years old describing acts of physical or sexual conduct performed on or with the child. The provision requires an in-camera hearing for the trial court to determine that the time, content and totality of cireum-stances surrounding the taking of the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. "In determining such trustworthiness, the court may consider, among other things, the following factors: the spontaneity and consistent repetition of the statement, the mental state of the declarant, whether the terminology used is unexpected of a child of similar age, and whether a lack of motive to fabricate exists." 12 O.S.Supp.2004, § 2808.1(A)(1). If the statement is found sufficiently trustworthy it is admissible if the child either testifies, is available to testify pursuant to the provisions of 12 O.S.Supp. 2004, § 2611.2 or is unavailable pursuant to 12 O.S.Supp.2004, § 2804.

T11 Section 2808.1 has previously been held not to apply to pre-recorded statements. See Curtis v. State, 1988 OK CR 185, ¶ 5, 763 P.2d 377, 378.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

NORMAN v. STATE
2023 OK CR 4 (Court of Criminal Appeals of Oklahoma, 2023)
George v. Whitten
W.D. Oklahoma, 2022
Taylor v. Martin
E.D. Oklahoma, 2020
GORDON v. STATE
2019 OK CR 24 (Court of Criminal Appeals of Oklahoma, 2019)
State v. Legg
785 S.E.2d 369 (Supreme Court of South Carolina, 2016)
Folks v. State
2008 OK CR 29 (Court of Criminal Appeals of Oklahoma, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2008 OK CR 29, 207 P.3d 379, 2008 Okla. Crim. App. LEXIS 27, 2008 WL 5265148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folks-v-state-oklacrimapp-2008.