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Willis v. State

Court of Criminal Appeals of Oklahoma

August 31, 2017

OSCAR DALE WILLIS, Appellant,
v.
STATE OF OKLAHOMA, Appellee.

         AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE CINDY H. TRUONG, DISTRICT JUDGE

          APPEARANCES AT TRIAL BRITTANY M. NOVOTNY 2410 N.W. 23RD, STE. 42 OKLAHOMA CITY, OK 73107 COUNSEL FOR DEFENDANT

          APPEARANCES ON APPEAL CINDY BROWN DANNER P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR DEFENDANT

          DAVID W. PRATER DISTRICT ATTORNEY RYAN STEPHENSON ASSISTANT DISTRICT ATTORNEY 320 ROBERT S. KERR, STE. 505 OKLAHOMA CITY, OK 73107 COUNSEL FOR THE STATE

          MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA JULIE PITTMAN ASSISTANATTORNEY GENERAL 313 N.E. 21 ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE

          SUMMARY OPINION

          LUMPKIN, PRESIDING JUDGE

         ¶1 Appellant Oscar Dale Willis was tried by jury and convicted of Offering and/or Soliciting Sexual Conduct with a Minor by Use of Technology (21 O.S.2011, § 1040.13a) in the District Court of Oklahoma County, Case No. CF-2015-961. At the conclusion of trial, the jury did not recommend a prison sentence, but did recommend a four thousand dollar ($4, 000.00) fine. 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 evidence was insufficient to support a conviction of the crime charged because the alleged "offer" was not made "by use of technology, " nor did the alleged use of technology serve to exploit or victimize a minor, as required under 21 O.S. § 1040.13a (A).
II. Absent the Preliminary Hearing testimony of Samuel Burwell, admitted at trial over objection and in violation of the Confrontation Clause, the evidence of guilt was insufficient and Appellant's conviction should be reversed with instructions to dismiss.
III. Without the trial court's admission, over defense objection, of highly inflammatory, prejudicial and irrelevant evidence and the prosecutor's improper argument, the jury would not have convicted Appellant. The case should be reversed with instructions to dismiss.

         ¶3 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 under the law and the evidence no relief is warranted.

         ¶4 In Proposition I, Appellant challenges the sufficiency of the evidence supporting his conviction. Specifically, he argues the evidence was insufficient because the alleged offer for sexual conduct with a minor was not made by use of technology as required by statute, but was made face-to-face and it was made to another adult and not to a minor. Appellant was convicted under 21 O.S.2011, § 1040.13a (A) which makes it unlawful "for any person to facilitate, encourage, offer or solicit sexual conduct with a minor, or other individual the person believes to be a minor, by use of any technology, or to engage in any communication for sexual or prurient interest with any minor, or other individual the person believes to be a minor, by use of any technology." For purposes of this section, a cell phone is included the definition of "by use of technology." Id.

         ¶5 This Court has addressed § 1040.13a in only one published opinion, Arganbright v. State, 2014 OK CR 5, 328 P.3d 1212. Appellant asserts that Arganbright has limited the application of § 1040.13a to this case by stating that "the plain language of Section 1040.13a reveals that the Legislature intended to prevent individuals from using electronic technology to sexually exploit or sexually abuse minors, " quoting Arganbright,2014 OK CR 5, ΒΆ 21, 328 P.3d at 1217. Appellant insists that using a cell ...


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