James v. State

2007 OK CR 1, 152 P.3d 255, 2007 Okla. Crim. App. LEXIS 1, 2007 WL 38140

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 8, 2007
• Docket: F-2005-763
• Status: Published

Opinions

OPINION

CHAPEL, Presiding Judge.

T1 Daniel Cole James was tried by jury and convicted of Count I, Rape by Instrumentation in violation of 21 0.$.2001, $ 1111, and Count II, Lewd Molestation in violation of 21 0.8.S8upp.2008, § 1123, in the District Court of Tulsa County, Case No. CF-2004-3854. In accordance with the jury's recommendation the Honorable Gordon D. McAllis-ter sentenced James to thirty-five (85) years imprisonment (Count I) and twenty (20) years imprisonment (Count II). James appeals from these convictions and sentences.

12 James raises eight propositions of error in support of his appeal. In Propositions I, II III, IV and V he complains of the admission and use of other crimes evidence in his case. As errors in the admission and use of this evidence require reversal, we do not consider the remaining propositions of error.

T3 "defendant should be convicted, if at all, by evidence showing guilt of the offenses charged, rather than evidence indicating guilt for other crimes."¹ Other crimes evidence is not admissible to show that a person is acting in conformity with a character trait.² Evidence of a prior bad act may be admissible if it is offered for a purpose specifically identified in § 2404(B)³ The following factors are necessary for the use of other crimes evidence.⁴ There must be a visible connection between the other crimes evidence and the charged crimes. The evidence must go to a disputed issue and be necessary to support the State's burden of proof, and its probative value must outweigh the danger of unfair prejudice. It must be established by clear and convincing evidence. The jury must be properly instructed on the limited purpose for which the evidence may be considered. If the evidence is offered to show a common scheme or plan, it must embrace the commission of crimes so related to each other that proof of one tends to establish the other.⁵ These rules are designed to protect both parties in a criminal case.

T4 The other crimes evidence in this case was extensive and prejudicial. It was thirteen years old, the allegations never resulted in filed charges, and there were eredi-bility issues. To some extent the evidence was improperly used as substantive proof of James's guilt of the charged crimes. The jury was not properly instructed on its limited use. In relying on its admission, the State refers this Court to Myers v. State.⁶ In Myers, this Court created a "greater latitude rule" in sexual assault cases, allowing otherwise inadmissible other crimes evidence to be admitted, even if it was remote in time. This Court has had the opportunity to review the effect of the Myers "greater latitude rule" in subsequent prosecutions. We conclude that this rule is unworkable, and hereby overrule Myers to the extent that it created the "greater latitude rule" for other crimes evidence in sexual assault cases. The statute on other crimes evidence, 12 0.8. 2001, § 2404(B), along with our previous case law on this issue, governs the admissibility of other crimes evidence in criminal trials in Oklahoma.

15 James was unfairly prejudiced by other crimes evidence which should not have been admitted. The case must be reversed and remanded for a new trial.

Decision

T6 The Judgments and Sentences of the District Court are REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

C. JOHNSON, A. JOHNSON, and LEWIS, JJ., concur. LUMPKIN, V.P.J., dissent.

1 . Burks v. State, 1979 OK CR 10, 594 P.2d 771, 772, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922.

2 . 12 0.8.2001, § 2404(B).

3 . Blakely v. State, 1992 OK CR 70, 841 P.2d 1156, 1158-59.

4 . Welch v. State, 2000 OK CR 8, 2 P.3d 356, 365.

5 . - Burks, 594 P.2d at 773.

6 . 2000 OK CR 25, 17 P.3d 1021, 1031.