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Holtzclaw v. State

Court of Criminal Appeals of Oklahoma

August 1, 2019

DANIEL K. HOLTZCLAW, Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE

         ATTORNEYS AT TRIAL

          SCOTT ADAMS ROBERT GRAY ADAMS & ASSOCIATES COUNSEL FOR DEFENDANT

          GAYLAND GIEGER LORI MCCONNELL ASST. DISTRICT ATTORNEYS COUNSEL FOR STATE

         ATTORNEYS ON APPEAL

          JAMES H. LOCKARD DEPUTY DIVISION CHIEF MICHAEL D. MOREHEAD HOMICIDE DIRECT APPEALS DIVISION OKLA. INDIGENT DEFENSE SYS. COUNSEL FOR APPELLANT

          MIKE HUNTER ATTORNEY GENERAL OF OKLA. KEELEY L. MILLER ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE

          OPINION

          KUEHN, VICE PRESIDING JUDGE

         ¶1 Daniel K. Holtzclaw was tried by jury and convicted of Sexual Battery in violation of 21 O.S.Supp.2013, § 1123 (B) (Counts 1, 13, 14, 30, 33 and 34); Procuring Lewd Exhibition in violation of 21 O.S.2011, § 1021 (Counts 4, 5, and 15); Forcible Oral Sodomy in violation of 21 O.S.2011, § 888 (Counts 8, 10, 16, and 27); Rape in the First Degree in violation of 21 O.S.2011, §§ 1111, 1114 (Counts 11, 28, 29 and 32); and Rape in the Second Degree in violation of 21 O.S.2011, §§ 1111, 1114 (Count 31), in the District Court of Oklahoma County, Case No. CF-2014-5869. [1] In accordance with the jury's recommendation the Honorable Timothy R. Henderson sentenced Appellant to eight (8) years imprisonment on each of Counts 1, 13, 14, 30, 33 and 34; five (5) years imprisonment on each of Counts 4, 5, and 15; twenty (20) years imprisonment (Count 8); sixteen (16) years imprisonment on each of Counts 10, 16, and 27; thirty (30) years imprisonment on each of Counts 11, 28, 29, and 32; and twelve (12) years imprisonment (Count 31), all to run consecutively. Appellant must serve 85% of his sentences on Counts 8, 10, 11, 16, 27, 28, 29, and 32 before becoming eligible for parole consideration. 21 O.S.Supp.2015, § 13.1. Appellant appeals from these convictions and sentences, and raises seven propositions of error in support of his appeal.

         Facts

         ¶2 From at least February 2014 to June 2014 Holtzclaw, an Oklahoma City police officer, sexually assaulted women in northeast Oklahoma City. An investigation into Appellant's activities began in earnest in late June of 2014. T.M. had reported in late May that a police officer sexually assaulted her on May 8, 2014. While that claim was being investigated, J.L. reported on June 18, 2014 that Appellant sexually assaulted her during a traffic stop early that morning. This led to a larger investigation. Officers used police department records, including warrants check logs, computer reports, computer dispatch records, and the automatic vehicle locator in Appellant's patrol car to identify women with whom Appellant had contact, and to confirm the time frame and locations of the crimes. They also used surveillance video from local businesses.

         ¶3 Eventually Appellant was charged with assaulting thirteen women. Jurors acquitted him of all charges involving five women: C.R., F.M., T.M., K.L., and S.H. He was acquitted of some charges and convicted of others for each of two women: T.B. (convicted of three, acquitted of two) and R.G. (convicted of one, acquitted of one). He was convicted of all charges concerning six women: S.E. (four counts), C.J. (two counts), J.L. (two counts), S.B. (two counts), R.C. (one count), and A.G. (three counts).

         ¶4 Taken together, the women's stories form a pattern wherein Appellant would conduct a traffic stop, or stop the victims while they were walking. While discussing the reason for the stop, he would ask whether the women had any drugs or "anything on them". He would then demand that they show him their breasts or vaginas, often asking how he could be sure the women weren't hiding something in their bra or pants or otherwise referring to the demand as a search. With several victims he touched their breasts or vaginas; he also demanded fellatio from some victims. In addition, he was convicted of five counts of first or second degree rape, and acquitted of three other rape claims. Appellant's threats included taking each of his victims to jail or detox, arresting her, charging her with a crime or promising that if she did as he demanded, he could make warrants or criminal charges go away, or otherwise help her situation. Most of the victims had previous recent contacts with law enforcement; some had outstanding warrants, some had drug paraphernalia on them, some were under the influence of drugs or alcohol when stopped. Sometimes he offered the victims a ride. Most of the crimes occurred late at night or in the early morning hours. The women ranged in age from seventeen to in their fifties.

         ¶5 In his defense, Appellant basically asked jurors to accept as true all the information that victims gave about the stops that was amply supported by police records and documents, but to determine that the same victims were lying about the details of the sexual assaults.

         Proposition I

         ¶6 In Proposition I Appellant claims there was insufficient evidence to convict him of procuring lewd exhibition, rape, oral sodomy, or sexual battery. He argues there was no evidence that the alleged "procuring lewd exhibition" occurred in public view; nor was there any evidence that the alleged rape and oral sodomy counts were accomplished by means of the use or threat of force or violence; and the evidence supporting the sexual battery counts was insufficient. We take each of these claims in turn.

         ¶7 Appellant was convicted on three counts of procuring lewd exhibition. [2] For each count, the State had to show that Appellant willfully procured the victim to expose herself to public view or to the view of any number of persons, for the sexual stimulation of the viewer. 21 O.S.2011, § 1021 (A)(2) (emphasis added). Jurors were correctly instructed on the elements of the crime. The victims in these counts each testified that Appellant demanded they expose their breasts and vagina to him. Moreover, J.L. testified that, after that exposure, Appellant took his penis from his pants, clearly aroused. Taken as a whole, sufficient evidence supports these charges.

         ¶8 Appellant's primary argument is concerned with the italicized language above. He argues that the State did not show Appellant compelled the victims to expose themselves to public view. Appellant admits that the plain language of the statute also includes exposure to the view of any number of persons. 21 O.S.2011, § 1021 (A)(2). On its face, this language would appear to include exposure to one person -- in this case, the Appellant. He argues that the statute should not be so interpreted. He says that "common sense" requires that the person viewing the exposure must be different from the person procuring it. That is, he argues that the crime necessarily requires three people: one to procure the exposure, one to expose herself, and one to see it. He offers no law to support this interpretation. Nor does he convincingly explain why common sense would suggest the Legislature intended to introduce a third person to the equation; his best, unstated, argument is that, under this interpretation, since there were no third persons present Appellant would win.

         ¶9 "In interpreting a statute, we look to its purpose, the evil to be remedied, and the consequences of any particular interpretation." Rousch v. State, 2017 OK CR 7, ¶ 5, 394 P.3d 1281, 1283. In Section 1021, the Legislature prohibits lewd exhibition, by both the person exhibiting and anyone who encourages or assists them to do so. Appellant suggests that the necessity of a third person is implicit in the language, because, since any person participating in a lewd exhibition would necessarily observe it, without a third person there would be no reason to refer to any type of "view" at all. On the contrary; this is not how statutory interpretation works. In order for the Legislature to protect the public from lewd exposure -- the apparent purpose of this statute -- the language must refer specifically to some type of public or personal view. Even assuming Appellant were correct in stating that one who procured or participated in a lewd exhibition must see it (an assumption we do not make), without specific language including public or personal view as an element, the fact that they or anyone else could see the exhibition would simply not be a crime. That interpretation cannot be what the Legislature intended.

         ¶10 As the State notes, other courts have interpreted similar language. The New Mexico Court of Appeals found that "public view" meant the crime happened in a place "accessible or visible to the general public", State v. Artrip, 112 N.M. 87, ¶ 4, 811 P.2d 585, 586 (N.M.Ct.App. 1991). The U.S. Court of Appeals for the Armed Forces found that, for indecent exposure, the phrase "public view" focuses on the person who views the indecent exposure, not the nature of the place as accessible to the public; where the crime is willful and a member of the public views the crime, the requirement is satisfied. U.S. v Graham, 56 M.J. 266, 269-70 (C.A.A.F. 2002). Even though these are indecent exposure statutes, the breadth of the interpretation is instructive. In addition, Appellant mistakenly compares the case to this Court's finding in an older case interpreting the old statute of outraging public decency, charged as a sexual assault on a public street. Hulsey v. State, 86 Okla.Crim. 273, 192 P.2d 301 (Ok.Cr.1948). There, because the crime required an act which was committed openly and affected the public, the jury should have been instructed to find whether the offense was committed "open to the view of the public in such a manner that it offended public decency." Id., 192 P.2d at 306. This holding has no bearing on the Appellant's claim. The statute at issue in Hulsey did not refer to "public view" (or public place, for that matter), and it specifically required a finding that members of the public should be able to see and be outraged by the crime. That is not one of the elements of the crime of lewd exhibition, and the discussion in Hulsey is unhelpful.

         ¶11 Appellant initially notes that the Information states that, in committing the crimes, he acted under his authority as a police officer. Appellant correctly points out that this is not an element of the crime. However, he fails to show how the addition of this language to the Information has any effect on the sufficiency of the evidence. Appellant later returns to this language, arguing that he cannot be convicted of this crime precisely because it was alleged that he acted under authority of his badge. In § 1021.1, the Legislature provides that § 1021 does not apply where the proscribed conduct "occurs in the course of law enforcement activities." 21 O.S.2011, § 1021.1. Appellant admits that he was on duty or in uniform, in a patrol car, and "engaged in a Terry stop" when the crimes occurred. He argues that the statute might be designed to protect officers like him, who are merely searching detainees. He is mistaken. The statute protects persons connected with law enforcement who engage in prohibited sexual activity specifically connected with a law enforcement activity, such as a sting or undercover operation. The whole point in including the "on duty" language in the Information is that Appellant used his position to abuse the public trust afforded police officers -- that is, that this made his actions worse. To construe the statute as Appellant suggests would produce the absurd result of shielding from prosecution any law enforcement officer who commits sex crimes prohibited under this statute while on duty. We will not presume the Legislature intended absurd consequences. Head v. State, 2006 OK CR 44 ¶ 13, 146 P.3d 1141, 1145. Taking the evidence in the light most favorable to the State, any rational juror could find beyond a reasonable doubt that Appellant committed the crimes of procuring lewd exhibition. Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559.

         ¶12 Turning to the second set of charges, Appellant was convicted on four counts of first degree rape. [3] For each count, the State had to show that Appellant had sexual intercourse with a person not his spouse, using or threatening force or violence, where the defendant had the apparent power to carry out the threat. 21 O.S.2011, §§ 1111 (A)(3), 1114(A)(5). Jurors were correctly instructed on the elements of the crime. Appellant claims the State failed to show any evidence that he either used or threatened force or violence. Appellant's position as a police officer put him in a position to make a type of threat not usually open to sexual perpetrators: the threat of incarceration. The victims in these counts each testified that they had warrants or were under the influence when they were stopped, and that Appellant presented them explicitly or implicitly with the choice of sex with him, or going either to detox or jail.

         ¶13 Appellant claims this is not enough, because the use or threat of force refers exclusively to physical force. On the contrary, the Legislature has specifically defined force:

In all instances of sexual assault including, but not limited to, rape, rape by instrumentation and forcible sodomy where force is alleged, the term "force" shall mean any force, no matter how slight, necessary to accomplish the act without the consent of the victim. The force necessary to constitute an element need not be actual physical force since fear, fright or coercion may take the place of actual physical force.

21 O.S.Supp.2016, § 111. While this definition was adopted by statute in 2016, it mirrors the definition first approved by this Court in 1987, and consistently used since then. Lawson v. State, 1987 OK CR 140, ¶¶ 11-12, 739 P.2d 1006, 1008. The testimony overwhelmingly showed the victims were frightened, coerced by threats of incarceration or detention, and did not consent to sexual intercourse with Appellant. Taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Appellant committed first degree rape. Easlick, 2004 OK CR 21, ¶ 15, 90 P.3d at 559.

         ¶14 Appellant was convicted of four counts of forcible oral sodomy. [4] The State had to show that Appellant penetrated the victims' mouths with his penis, using or threatening force or violence with the apparent power of its execution, or that he committed the acts while he was an Oklahoma municipal employee, and upon a person under the legal custody, supervision or authority of an Oklahoma municipality. 21 O.S.2011, § 888 (B)(3), (4).

         ¶15 Appellant first complains that the evidence failed to show he used force or violence in the commission of the acts. As we discuss above, in connection with the rape charges, the definition of "force" includes fear, fright or coercion. 21 O.S.Supp.2016, § 111; Lawson, 1987 OK CR 140, ¶¶ 11-12, 739 P.2d at 1008. Each victim testified that Appellant stopped her and required her to commit fellatio, against her will and without her consent, in lieu of arrest or detention at a detox center. Appellant earlier argued that he could not be guilty of procuring lewd exhibition since each of those acts occurred while, acting as an Oklahoma City police officer, he was attempting to search each victim. Here, where one element of the crime is that the victim is under the legal custody, supervision or authority of an Oklahoma City police officer, he argues that none of the victims were in his custody. He can hardly argue that they were not detained -- since he relies on that for his previous argument -- so instead he claims that the statute does not include routine detention. He offers no law to support this argument, merely claiming "it is not reasonably likely" that is what the Legislature meant. A person is seized by authorities when, under the totality of the circumstances, a reasonable person in that situation would not believe she was free to leave. Skelly v. State, 1994 OK CR 55, ¶ 12, 880 P.2d 401, 405. The victims in these counts each testified that Appellant detained them, and demanded oral gratification during the course of that detention. No reasonable person under the circumstances would have felt free to leave. There is no question but that the victims were under Appellant's supervision and authority when he committed these acts. Taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Appellant committed forcible oral sodomy. Easlick, 2004 OK CR 21, ¶ 15, 90 P.3d at 559.

         ¶16 Appellant also claims that the evidence did not support his forcible oral sodomy conviction for Count 8, against R.G. R.G. testified that Appellant stopped her, drove her home, followed her into her bedroom, told her "[T]his is better than county jail," and put his penis in her mouth. This evidence is sufficient to support the jury's determination of guilt. Easlick, 2004 OK CR 21, ¶ 15, 90 P.3d at 559. Appellant argues, essentially, that the jury couldn't have meant it because jurors acquitted him of first degree rape charges against R.G. He implies that the verdicts were inconsistent. Each verdict stands on its own, and we will not disturb a verdict supported by substantial evidence. Smith v. State, 2013 OK CR 14, ¶ 64, 306 P.3d 557, 578; Gray v. State, 1982 OK CR 137, ¶ 20, 650 P.2d 880, 884; U.S. v. Powell, 469 U.S. 57, 67-68, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984); Dunn v. U.S., 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932).

         ¶17 Appellant was convicted of six counts of sexual battery. [5] The State had to show that Appellant intentionally touched, felt or mauled the body of a person over the age of sixteen, in a lewd and lascivious manner, either without her consent or that he committed those acts while employed by an Oklahoma municipality and the victim was under the legal custody, supervision or authority of an Oklahoma municipality. 21 O.S.Supp.2013, § 1123 (B)(1), (2). Specifically, Appellant, while acting as a police officer, stopped each woman and demanded to touch her breasts, vagina or both during the course of each stop. The circumstances of each encounter, as related by the victims, supports a conclusion that each individual touching was in a lewd and lascivious manner. Appellant, returning to his earlier argument, claims he was merely engaged in searching each woman pursuant to detention, which he argues was according to department policy. Evidence showed that while OKCPD policy allows male officers to search female detainees, justification for such searches is strictly limited and standard policy is for a female officer to be called to do any search. Evidence also showed the victims and Appellant were aware of this policy, and Appellant had followed it on at least one other occasion. While Appellant was certainly acting as a municipal employee, and the victims were under his supervision and authority, the record does not support his claim that he was merely carrying out official duties. Taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Appellant committed sexual battery. Easlick, 2004 OK CR 21, ¶ 15, 90 P.3d at 559.

         ¶18 In summary, sufficient evidence supported Appellant's convictions. Proposition I is denied.

         Proposition II

         ¶19 In Proposition II Appellant claims his cases -- comprising thirty-six allegations involving thirteen victims -- should not have been joined into a single trial. Appellant admits that, when a defendant commits multiple, similar crimes, they may be joined and charged in one Information. 22 O.S.2011, § 436; Glass v. State, 1985 OK CR 65, ¶ 8, 701 P.2d 765, 768. The transactions must refer to similar offenses, occurring over a relatively short period of time in approximately the same place, with overlapping proof showing a common scheme or plan. Collins v. State, 2009 OK CR 32, ¶ 14, 223 P.3d 1014, 1017; Glass, 1985 OK CR 65, ¶ 9, 701 P.2d at 768. "'Transaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." Gilson v. State, 2000 OK CR 14, ¶ 46, 8 P.3d 883, 904 (citations omitted). The transactions must overlap because joinder is essentially designed to promote judicial economy by trying similar crimes together, conserving judicial resources. Smith v. State, 2007 OK CR 16, ¶ 28, 157 P.3d 1155, 1166. Appellant failed to object to joinder of the offenses below and we review for plain error. Collins, 2009 OK CR 32, ¶ 12, 223 P.3d at 1017. "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." Thompson v. State, 2018 OK CR 5, ¶ 7, 419 P.3d 261, 263.

         ¶20 We find no error. Appellant was charged with similar crimes, all occurring in a particular section of northeast Oklahoma City, over a span of just over six months. Appellant admits we have held that a "relatively short period of time" includes crimes committed within four to eight months of one another. Gilson, 2000 OK CR 14, ¶¶ 47-48, 8 P.3d at 904-05; Collins, 2009 OK CR 32, ¶ 15, 223 P.3d at 1017. He also admits we have held proximity in location may include crimes committed as much as five miles apart, Pack v. State, 1991 OK CR 109, ¶ 8, 819 P.2d 280, 283, or within the same county, Middaugh v. State, 1988 OK CR 295, ¶¶ 9-10, 767 P.2d 432, 435. Here, all the crimes occurred within the city limits in northeast Oklahoma City, and are ...


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