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Barnes v. State

Court of Criminal Appeals of Oklahoma

November 22, 2017

TRAVIS DILLION BARNES, Appellant,
v.
THE STATE OF OKLAHOMA, Appellee.

          MARK A. SCHANTZ COUNSEL FOR DEFENDANT

          JARED SIGLER FIRST ASSISTANT DISTRICT ATTORNEY COUNSEL FOR THE STATE

          JEREMY STILLWELL COUNSEL FOR APPELLANT

          E. SCOTT PRUITT OKLAHOMA ATTORNEY GENERAL JULIE PITTMAN ASSISTANT ATTORNEY GENERAL COUNSEL FOR APPELLEE

          OPINION

          HUDSON, JUDGE.

         ¶1 Appellant Travis Dillion Barnes was tried and convicted by a jury in Nowata County District Court, Case No. CF-2014-124, for the crimes of Count 1: First Degree Burglary, in violation of 21 O.S.2011, § 1431; and Count 2: First Degree Rape, in violation of 21 O.S.2011, §§ 1114, 1115. The jury recommended Barnes be sentenced to fifteen (15) years imprisonment and a $10, 000.00 fine on Count 1; and life imprisonment without the possibility of parole on Count 2. The Honorable Curtis L. DeLapp, District Judge, sentenced Barnes in accordance with the jury's recommendations and further imposed a $1, 000.00 fine on Count 2. [1] Judge DeLapp additionally ordered Count 1 to run consecutive to Count 2, imposed various costs and fees, and ordered Barnes to register as a sex offender. Barnes now appeals. We AFFIRM Barnes' convictions, but VACATE his sentences and REMAND FOR RESENTENCING.

         BACKGROUND

         ¶2 On November 30, 2014, 84-year-old D.P. lived alone in an apartment at the Woodbrook Apartments in Nowata. That evening, having gone to bed at 5:30 p.m., D.P. was awakened by Appellant, who had entered her apartment through a window. Appellant jumped on top of D.P. and began choking her, stating "all right, Donna". [2] D.P. was on her back and struggled to remove Appellant's hands from her throat. Unable to pull D.P.'s underwear down as he fought to subdue her, Appellant rolled D.P. over. As D.P. laid face down on the bed, Appellant inserted his penis into her rectum as well as her vaginal area. Although D.P. was unsure how long the rape lasted, she approximated that Appellant penetrated her two or three times. After the rape, Appellant pushed D.P. to the side of the bed, ran out of the bedroom--taking the bed sheets with him--and exited the apartment through the front door. D.P. subsequently called the police and then her family.

         ¶3 Police arrived and D.P. was taken to a Bartlesville hospital. At the hospital, D.P. was examined by Teresa Watson, a sexual assault nurse examiner (SANE). During the SANE exam, Watson took swabs of D.P.'s anal and vaginal areas. These swabs were later submitted to the Oklahoma State Bureau of Investigation (OSBI) for analysis. Janice Joslin, a Technical Manager for the OSBI's Forensic Biology unit, found sperm and the P30 protein commonly found in seminal fluid on one of the vaginal swabs and two of the anal swabs. OSBI Criminalist Joseph Orcutt testified that Appellant could not be excluded as a contributor of the DNA evidence recovered from these three swabs. [3]

         ¶4 Appellant took the stand in his own defense at trial and admitted unlawfully entering D.P.'s apartment and raping her. However, Appellant contended that he did so under the threat of being shot. Appellant explained that he went to D.P.'s apartment with Troynell Threadgill and that Threadgill had a gun in his possession. [4] Appellant indicated that Threadgill was the first to enter D.P.'s apartment through a window. [5] Appellant "acted out of [his] instincts, and jumped in the window head first, hit the floor, and jumped up, ran, and [] jumped on top of [D.P.]." Appellant admitted covering D.P.'s mouth in a manner consistent with D.P.'s testimony and explained that he told her "it's all right." According to Appellant, Threadgill then came up behind him, pointed a gun at him, and told him to "'F' her." [6] When questioned on cross-examination regarding how he managed to get aroused and ultimately ejaculate, Appellant responded that it was a "life or death situation" and that he "did what [he] had to do to make sure [he] survived and so did [D.P.]." Appellant maintained that he used his erect penis to penetrate D.P.'s anus and vagina to "save her life."

         I. Allegations of Prosecutorial Misconduct.

         ¶5 In his first proposition of error, Appellant alleges several instances of prosecutorial misconduct occurred during the prosecutor's closing argument. Appellant specifically complains that the prosecutor improperly 1) commented on Appellant's right to trial; 2) implied Appellant is a liar; 3) interjected his personal opinion; 4) appealed to the jury for a verdict based on sympathy and passion; and 5) misstated the law.

         ¶6 Both parties are given considerable latitude in closing argument to argue the evidence and reasonable inferences from it. Pullen v. State, 2016 OK CR 18, ¶ 13, 387 P.3d 922, 927. Moreover, "[i]t is well established that a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." Frederick v. State, 2017 OK CR 12, ¶ 138, 400 P.3d 786, 822, as amended (June 23, 2017); see also Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). As Appellant did not object to the various instances of prosecutorial misconduct now alleged, he has waived all but plain error review of these claims on appeal. Sanders v. State, 2015 OK CR 11, ¶ 23, 358 P.3d 280, 286. "Plain error is an actual error, that is plain or obvious, and that affects a defendant's substantial rights, affecting the outcome of the trial." Mitchell v. State, 2016 OK CR 21, ¶ 24, 387 P.3d 934, 943. See also Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121. 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. Jackson, 2016 OK CR 5, ¶ 4, 371 P.3d at 1121.

         ¶7 We focus our review of this claim primarily on Appellant's first contention--the prosecutor improperly commented on his right to trial--as we find plain error that requires this matter be remanded for resentencing. The prosecutor at trial made the following statements at the start of his closing argument:

Mr. Barnes told you that he had to rape [D.P.]. He had to do it, right. That's what he told you. Well, let me tell you something that he didn't have to do.
A defendant has a right to a jury trial, you can exercise that right. It's not mandatory that you exercise that right. If you're a defendant and you've got evidence that's overwhelming against you, you can enter a plea to the charge, you can plead guilty.
You don't have to have an 84 year old woman come in and relive what happened to her. You don't have to have 12 citizens of Nowata County come in and listen to this type of evidence when it's overwhelming that you're guilty. I want ya'll to think about that. He made Donna come back in here, re-live it. He made you all listen to it just so he could tell a story that if your ...

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