APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY THE
HONORABLE JACK D. McCURDY, II, SPECIAL JUDGE
McCLENDON ATTORNEY AT LAW COUNSEL FOR DEFENDANT.
HESSE FIRST ASSISTANT DISTRICT ATTORNEY COUNSEL FOR THE
MacNIVEN APPELLATE DEFENSE COUNSEL COUNSEL FOR APPELLANT.
SCOTT PRUITT ATTORNEY GENERAL OF OKLAHOMA THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL COUNSEL FOR THE STATE.
LUMPKIN, PRESIDING JUDGE
Appellant, David Paul Duclos, was tried by jury and convicted
of Unlawful Communication With Minor By Use of Technology (21
O.S.2011, § 1040.13a) in District Court of Canadian
County Case Number CF-2013-623. The jury recommended as
punishment imprisonment for eight (8) years and a $5, 000.00
fine. The trial court sentenced Appellant accordingly. It is
from this judgment and sentence that Appellant appeals.
On October 18, 2013, Appellant communicated through both
email and a cellphone text messaging application with an
individual whom he believed to be a 14-year-old female. The
exchanges communicated Appellant's sexual or prurient
interest in the minor. Appellant was unaware that he was
actually interacting with Lieutenant Adam Flowers of the
Canadian County Sheriff's Department Internet Crimes
Against Child Task Force. Ultimately, Appellant arranged a
meeting with the minor at the movie theater in El Reno,
Appellant parked his Denali on the dark and secluded side of
the movie theater. He backed into a parking space and placed
a sun visor across the glass of the front windshield. Officer
Jason McWhorter of the El Reno Police Department made contact
with Appellant inside the theater. When McWhorter identified
himself, Appellant declared: "I'm the one."
Appellant waived his rights under Miranda and
voluntarily admitted to Lieutenant Flowers that he had come
to the movie theater to meet a 14-year-old girl.
Although Appellant claimed that he had not intended to have
sex with the minor, a search of Appellant's vehicle
revealed a pillow and blanket in the back seat.
In Proposition One, Appellant contends that his trial was not
conducted in accordance with 22 O.S.2011, § 576. He
argues that Section 576 disqualified the Honorable Jack D.
McCurdy II, Special Judge, from presiding over his trial
because Judge McCurdy presided at his preliminary hearing.
Appellant failed to assert his right to preclude Judge
McCurdy from presiding at trial, thus, we find that he has
waived appellate review of his claim for all but plain error.
Mitchell v. State, 2006 OK CR 20, ¶ 86, 136
P.3d 671, 706 (holding defendant waived right to preclude
disqualified judge from hearing case by failing to properly
pursue claim in trial court); Welch v. State, 2000
OK CR 8, ¶ 37, 2 P.3d 356, 372 ("[T]he right to
preclude a disqualified judge from trial is a personal
privilege which can be waived by the failure to strictly
comply with the proper procedure for See king the
disqualification of the trial judge."). We review
Appellant's claim pursuant to the test for plain error
set forth in Simpson v. State, 1994 OK CR 40, 876
P.2d 690. Stewart v. State, 2016 OK CR 9, ¶ 12,
372 P.3d 508, 511. Under this test, an appellant must show an
actual error, which is plain or obvious, and which affects
his substantial rights. Simpson, 1994 OK CR 40,
¶¶ 10, 26, 30, 876 P.2d at 694, 699, 701; Hogan
v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.
This Court will only correct plain error if the error
seriously affects the fairness, integrity or public
reputation of the judicial proceedings or otherwise
represents a miscarriage of justice. Id., 1994 OK CR
40, ¶ 30, 876 P.2d at 701; Hogan, 2006 OK CR
19, ¶ 38, 139 P.3d at 923.
Reviewing the record in the present case we find that
Appellant has shown the existence of an actual error. Section
576 provides that: "The judge who conducts the
preliminary examination shall not try the case except with
the consent of all parties." To effect such a consent
the trial court should inform the defendant of this statutory
right and secure an affirmative expression of consent from
the parties on the record. Nelson v. State, 2001 OK
CR 4, ¶ 17, 21 P.3d 55, 59; Doss v. State, 1992
OK CR 15, ¶ 7, 829 P.2d 45, 46.
Judge McCurdy presided over Appellant's preliminary
hearing in this case. Although both parties consented to have
a special judge preside over the trial, the record is silent
as to whether Appellant consented to have the ...