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| Limiting Instructions |
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Steven Lynn Smith v. State,
No. F-2005-716 (Okl.Cr., July 3, 2007) (unpublished): 1) Limiting Instructions; 2) "Bad Acts": This is a lengthy and interesting opinion where the Court REVERSED a conviction for Lewd Acts on the basis of the introduction of "other crimes" evidence which consisted of merely a statement made by the accused that his seven-year-old daughter had given him "head" and that he had been convicted of that crime. The Court held that there was no visible connection between this prior crime and the instant charge; and also that the proof of the prior crime was not clear and convincing. Notably, the jury was given a limiting instruction but the Court held that the error was reversible anyway. Judge: Hon. Tammy Bass-Jones (Oklahoma County). NOTE: The legislature has enacted new provisions under the evidence code which specifically allow this type of prior bad act evidence in child sex abuse case. It remains to be seen how these new provisions will be analyzed by the Court in a claim of unfair prejudice (one would think that if the evidence is fundamentally unfair it would not matter whether it is authorized by the legislature, but something tells me it is not going to be that easy). This case also contains decent discussions of specific versus general statutes, conflicting punishment ranges (21 O.S. 1123(A) versus 21 O.S. 51.1a), the use of defense "rebuttal" evidence, and application of the 85% Rule. Concerning the 85% Rule, the Court held that such an instruction was not applicable since, as a repeat offender, Smith was subject only to LWOP.
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