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United States v. Brown,
No. 03-8071 (10th Cir., March 28, 2005) (Unpublished): No relief for Brown, but good discussion of federal standards of "bad acts" evidence and jurisdiction in cases where Defendant uses the internet to entice a minor (the undercover cop) to engage in sexual activity. Here, both cop and Defendant were in Cheyenne, Wyoming, but messages were routed through California. Circuit held this was enough to establish federal jurisdiction. Contrast this holding with the Eleventh Circuit's decision in the Smith case presented last week (no federal jurisdiction where Defendant takes photo of minor and equipment used to process it is from different states).
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United States v. Matthews,
No. 03-15528 (11th Cir., June 8, 2005): Nice win on the basis of "bad acts" evidence involving a prior arrest. Drug convictions reversed when such evidence was not harmless.
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United States v. McNeill,
No. 04-3092 (June 17, 2005) (Unpublished): Drug conviction reversed on issue of "bad acts" introduced at trial--a prior conviction for drug crimes.
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United States v. Wesley,
No. 04-1626 (6th Cir., May 18, 2005): Winner!!! Attempted bank robbery conviction reversed on Rule 403 unfair prejudice grounds when Government presented a videotape of Wesley in which he stated that he had been to prison.
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United States v. Owens,
No. 04-2793 (7th Cir., September 21, 2005): Another federal bank robbery winner where the trial court allowed "bad acts" evidence that suggested Owens robbed the same bank several years earlier.
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United States v. Mares,
No. 05-2117 (10th Cir., March 24, 2006) (Published): Horrible "other crimes" case where Mares was arrested trying to cross the border into Mexico with over 30 kilograms of marijuana in the gas tank of her car. Subsequent to her trial on this charge, she was arrested for doing the same thing (nearly identical facts). The Circuit held that evidence of the second arrest was admissible under 404(b).
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United States v. Curtin,
No. 04-10632 (9th Cir., April 4, 2006): Another sex sting case involving a guy who interacting with a person he thinks is a minor in a chat room (who is really a police officer) and who goes to meet her and is arrested. This case is reversed on the basis of 404(B) evidence involving stories on Curtin's PDA involving incest fantasies which were held by the panel to be more prejudicial than probative (although one judge dissented).
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George Luther Carter, III, v. State,
No. F-2005-288 (Okl.Cr., June 30, 2006) (unpublished): "Bad Acts": Carter was convicted of Child Sexual Abuse and sentenced to 30 years. Reversed and remanded for new trial based on the introduction of "other crimes" evidence. The State's Burks notice sought to introduce the testimony of "S.P.," age 10, who testified over defense objection that Carter had inserted his finger into her vagina (Rape I by Instrumentation). In reversing, the Court discussed the "greater latitude rule" in Myers v. State, 2000 OK CR 25, which provides for more liberal admission of other crimes in sex crime cases in which the victim is a child. The Court noted however that other crimes evidence is still governed by evidentiary statutes that require the State to show a "visible connection" between the other crime and the charged crime, the probative value must outweigh the prejudicial effect, and the evidence must prove one of the proper purposes under 2404(B). In this case, the Court held that there was no connection between the sexual assault on "S.P." and the one upon the complaining witness who was the subject of the new charge, other than the identity of the perpetrator. The Court stated specifically that a common scheme or plan is not established by the mere allegation that the accused committed another sexual offense against a child in the past. NOTE: as far as I know, this is the only case from the Court of Criminal Appeals that finds reversible error even when the greater latitude rule applies. This case should be published. Trial Judge: Paul M. Vassar, Lincoln County.
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Stouffer v. State,
2006 OK CR 46 (Okl.Cr., November 14, 2006): Death Penalty; State Cases; "Bad Acts": Death penalty case that originated in 1985 and has already wound itself through the appellate process once. In this appeal from a re-trial, Stouffer is once again found guilty and sentenced to death over a host of the usual death penalty issues. The Court did find error in the State's use of "other crimes" evidence but held that the error was harmless.
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United States v. Cerno,
No. 07-2136 (10th Cir., June 24, 2008) (Published): 1. "Bad Acts"; 2. Federal Sentencing Guidelines; Reasonableness: Sexual Abuse convictions AFFIRMED over claims of improper evidence during cross examination of Cerno (an incident where he watched porn in the house and passed out with his penis exposed). The panel found no violation of Rules 403 or 404(b). However, the panel VACATED the sentence because the District Court refused to consider "the comparative amount of force he used to commit the abuse." HELD: We agree with Cerno that the District Court committed procedural error by refusing, as a matter of law, to entertain his argument that relatively little force was used to perpetrate the assaults. NOTE: Judges Lucero and Holloway were in the majority; Judge McConnell dissented on the indecent exposure issue, finding that the incident was not relevant at all.
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United States v. Smith,
No. 07-3061 (10th Cir., July 23, 2008) (Published): 1. "Bad Acts"; 2. Prosecutorial Misconduct; Brady Issues: Smith was convicted by jury on seventeen counts related to a drug conspiracy and walloped with 324 months. AFFIRMED over her claims regarding: 1) error in admitting evidence of a double murder, including graphic photographs (error but harmless); 2) instructional error that the jury could consider the murders even if the government had not proved Ms. Smith's participation beyond a reasonable doubt; 3) denial of motion for a new trial as the result of a Brady violation involving statements made by her attorney who later testified against her; 4) the government intentionally destroyed exculpatory evidence when it deposited seized cash into a forfeiture account without documenting the serial numbers on the bills; 5) chain of custody error; 6) a Batson claim; and 7) improper application of an obstruction of justice enhancement.
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Lowery v. State,
2008 OK CR 26 (Okl.Cr., September 5, 2008): "Bad Acts": Lowery was convicted in Tulsa County by a jury in the courtroom of the Hon. Dana L. Kuehn of multiple counts including Burglary in the First Degree, Indecent Exposure, Lewd Molestation, and Assault and Battery. The principal issue is the introduction of a "separate and serious assault on a child" as "other crimes" evidence. The evidence was admitted because it was relevant as to identity and motive, although on appeal the State argued it was relevant as to common scheme or plan and absence of mistake. HELD: "We conclude that the R.P. other crimes evidence was not admissible under any of the exceptions to the rule against other crimes evidence and that the trial court committed plain error in admitting this evidence." However, the Court held that the evidence was harmless as to guilt/innocence, but affected the sentence. Thus, his sentences are modified. NOTE: This is another case where trial counsel "vigorously challenged this" evidence during the in-trial hearing on its admissibility, but failed to renew the objection at the time it was actually offered at trial; thus, plain error review is all that is available. NOTE: This is another case where the Court cites 12 O.S. 2404(B) to resolve the case and does not mention the new statutes that could control this issue found at 12 O.S. 2413 & 2414. NOTE: This opinion does not appear on the Court's web site for some reason, although I received it from the Court via e-mail. AND NOTE: Judge Lumpkin does not like extensive discussions in footnotes and, in a twist of irony, he penned this footnote to his concurring in part/dissenting in part opinion: "My colleague's extensive footnotes seeking to justify the deviation I have noted seems to fit William Shakespeare's great line from Hamlet, Act III, Scene II, "The [gentlemen] protests too much, methinks."
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United States v. Edwards,
No. 07-6212 (10th Cir., September 3, 2008) (Published): "Bad Acts": Edwards was convicted of drug counts and conspiracy (he was a member of the Playboy Gangster Crips). HELD: 1) The evidence was sufficient; 2) The as-applied constitutional challenge to a statute criminalizing firearm possession by a drug user is rejected (such a "challenge will fail where the government has introduced sufficient evidence of a temporal nexus between the drug use and firearm possession"); 3) No error in the introduction of 911 calls; and 4) Error in the introduction of his previous drug convictions for possession of small amounts of cocaine and marijuana (but harmless). AFFIRMED.
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James v. State,
2007 OK CR 1 (January 8, 2007): "Bad Acts": Starting out the new year with a bang, the Court jettisoned the "greater latitude rule" which had been used by the State to introduce more easily "other crimes" evidence in child sexual abuse cases. James was convicted by jury in Tulsa of Rape by Instrumentation and Lewd Molestation. He was sentenced to 35 years and 20 years, respectively. The opinion does not go into great detail concerning the nature of the "other crimes" introduced in this case, other than to note that they were thirteen years old, never resulted in a filed charge, and there were "credibility issues." The Court held that the "greater latitude rule" was unworkable and overruled Myers v. State, 2000 OK CR 25, 17 P.3d 1021, holding that the introduction of "other crimes" evidence in sex cases must be governed by the usual rules of evidence under 12 O.S. sec. 2404(B) and the prior cases of the Court.
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People v. Albarran,
No. B185547 (Cal. App., April 2, 2007): "Bad Acts": Attempted Murder, Shooting at an Inhabited Dwelling and Attempted Kidnapping for Carjacking convictions are reversed because of the erroneous introduction of evidence of gang affiliation.
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United States v. Jones,
No. 06-30535 (5th Cir., April 13, 2007): Possession of Firearm by Felon; "Bad Acts": Solid case that reverses a conviction of Felon in Possession of a Firearm on the basis that the trial court allowed the Government to introduce evidence of a prior conviction for the same offense in a case where the Government alleged actual possession as opposed to constructive possession.
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United States v. Sumlin,
No. 05-51720 (5th Cir., June 15, 2007): "Bad Acts": Sumlin was convicted by jury of unlawful Possession of a Firearm by a Felon and sentenced to 24 months. REVERSED because the District Court erred in admitting the testimony of the arresting officer regarding the unproven extrinsic bad act by Sumlin of transporting drugs.
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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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United States v. Benally,
No. 06-4173 (10th Cir., August 29, 2007) (Published): "Bad Acts": Benally was convicted by jury of one count of Aggravated Sexual Abuse of a Minor in Indian Country. He was sentenced to 324 months. AFFIRMED over his claim that the District Court erred in allowing testimony of four witnesses regarding his prior acts of sexual assault.
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Charles Terrell v. State,
No. F-2006-348 (Okl.Cr., October 12, 2007) (unpublished): "Bad Acts": Terrell was tried and convicted by jury of one count of Lewd Molestation in Sequoyah County before the Hon. A. J. Henshaw and sentenced to the maximum of 20 years. The State was allowed to introduce evidence of "other crimes" in the form of testimony by his former step-daughter who testified that Terrell molested and raped her repeatedly over a four year period. The Court held that this evidence of "other crimes" had a visible connection with the charged offense because: 1) both girls testified that Terrell committed the same act against them; 2) Terrell threatened them afterwards to not tell; 3) both girls were family members; and 4) both girls were about the same age when the molestation occurred. However, the Court held that the testimony by the step-daughter was not limited and that she was allowed to testify about the details of the abuse, including many instances of rape by instrumentation with various inanimate objects. This degree of detail was more prejudicial than probative and constituted error. The Court held that the error did not affect the finding of guilt, but did contribute to the sentence and therefore the Court modified the sentence to 10 years. NOTE: In footnote 2, the Court recognized that the Legislature enacted 12 O.S. 2414 which allows this type of evidence and also held that such evidence is subject to the balancing test under 12 O.S. 2403. To my knowledge, this is the first opinion from the Court addressing the newly enacted 12 O.S. 2414.
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Earnest Ray Kingery, Jr., v. State,
No. F-2006-1015 (Okl.Cr., November 27, 2007) (unpublished): "Bad Acts": Kingery was convicted of Rape in Cherokee County and sentenced by the Hon. Mark Dobbins to seventy years. Kingery apparently raped his two children, one boy and one girl. He was charged originally with two counts, but one was dismissed at PH when the child did not testify. However, at trial, the State proceeded on one count, but introduced the evidence and testimony on the other count as Burks material to show common scheme or plan. The Court held that it was not error to introduce evidence of the second rape, but the manner in which the State did it, by presenting evidence of the second rape as if it was a second count, was unduly prejudicial. Sentence modified to 25 years. NOTE: This opinion contains some very bad language in allowing the second rape. The Court held the evidence admissible because of "the contemporaneous nature of the crimes and locations, the similarity of the acts, and the close relationship between the victims and Kingery, all suggest the existence of a common scheme or plan." But, these are the very things that make the evidence unduly prejudicial. Finally, this opinion was 3-2, with Judges Lumpkin and Lewis dissenting to the sentence modification.
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State v. Ellison,
No. SC88468 (Mo., December 4, 2007): "Bad Acts": In a child molestation case, the introduction of a prior conviction for sexual abuse simply to show propensity of the accused to commit such acts violates the state constitutional guarantee that the accused shall be tried only for the offense for which he is charged.
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United States v. Stout,
No. 06-6353 (6th Cir., December 20, 2007): "Bad Acts": This is a solid "bad acts" winner on the Government's appeal when the District Court granted a pre-trial motion in limine to prevent the Government from introducing the fact that Stout had a prior conviction for installing a video camera in the home of family friends and taping their 14-year-old daughter take a shower. He was on trial for Possession of Child Porn. The District Court held that the prior conviction was "creepier" than the charges for which he was on trial and excluded evidence of the prior conviction on the basis that it would be more prejudicial than probative. The panel, in this split opinion, held that exclusion of the evidence was not an abuse of discretion.
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United States v. Bell,
No. 06-6248 (6th Cir., February 14, 2008): "Bad Acts": Conviction of Possession of Marijuana w/Intent is REVERSED on the basis that the District Court erred in admitting into evidence four prior state court drug convictions under Rule 404(b) for the purpose of proving absence of mistake or accident and intent.
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Anthony Paul Free v. State
No. F-2006-1086 (Okl.Cr., February 25, 2008) (unpublished): "Bad Acts": Free was convicted by a jury in Tulsa County of Lewd Molestation, after former conviction of a similar offense, and sentenced to mandatory LWOP. Free raised one issue on appeal: it was error for the State to introduce evidence of his prior acts of child sexual abuse twenty years earlier in Arkansas. One issue was all it took, though, because the Court REVERSED and REMANDED for a new trial. The trial court allowed the evidence under the then-existing "greater latitude rule" pursuant to Myers v. State. While Free's case was pending on direct appeal, the Court overruled Myers in James v. State. The Court held that the prior crimes had "no visible connection" to the charged crime because the gender of the victims was different and the acts were different; also, the prior acts were too remote in time to offer any probative value at trial. The Court stated: "Other crimes evidence should not be admitted where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character....The minimal relevance of the other crimes evidence in this case suggests that this evidence is only being offered to show propensity, an improper reason for admission under our statutes." NOTE: This appears to be exactly the reason why the legislature enacted the new rules of evidence in 2413 & 2414. In a footnote, the Court recognized these additions to the Oklahoma Evidence Code, but appeared to suggest that these new evidentiary provisions do not apply to this case because they were enacted effective April 30, 2007. Thus, it remains unclear to me exactly how a relevancy and an unfair prejudice analysis applies under the new evidentiary provisions since the Court appeared to conduct an analysis under 2404 only. NOTE: The Court noted that the mandatory LWOP sentence is found at 21 O.S. 51.1a, but 21 O.S. 1123 has its own enhancement which is inconsistent with 51.1a. However, in light of the reversal of the conviction, the Court chose to "not delve into this morass." NOTE: This was a 3-2 opinion. Judge Lumpkin dissented based on the new 12 O.S. secs. 2413 & 2414. Judge A. Johnson concurred in part and dissented in part, agreeing that it was error for the trial court to admit the evidence, but holding that it was harmless; and, as to the sentence, she seems to see no tension between 51.1a and 1123 on this point and would hold that since 51.1a applies, and mandates LWOP, the error could not have affected the sentence even if it inflamed the passions of the jury.
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