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Brewer v. State

Court of Criminal Appeals of Oklahoma

September 26, 2019

ROBERT EUGENE BREWER, Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE WILLIAM J. MUSSEMAN, JR., DISTRICT JUDGE

          BRIAN MARTIN COUNSEL FOR DEFENDANT

          KATIE KOLJACK COUNSEL FOR THE STATE

          MARK P. HOOVER COUNSEL FOR APPELLANT

          MIKE HUNTER KEELEY L. MILLER COUNSEL FOR APPELLEE

          SUMMARY OPINION

          HUDSON, JUDGE

         ¶1 Appellant, Robert Eugene Brewer, was tried and convicted by jury in Tulsa County District Court, Case No. CF-2016-6383, of Sexual Abuse of a Child Under 12 (Count 1), [1] in violation of 10 O.S.Supp.2002, § 7115. [2] The jury recommended a sentence of seven years imprisonment. [3] The Honorable William J. Musseman, Jr., District Judge, presided at trial and sentenced Appellant in accordance with the jury's verdict. The court further ordered Brewer to serve a term of three years post-imprisonment supervision. Brewer now appeals, raising the following issue:

THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF OTHER CRIMES WHICH HAD NOT BEEN SUBSTANTIATED.

         ¶2 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties' briefs, we find that no relief is required under the law and evidence. Brewer's Judgment and Sentence is therefore AFFIRMED.

         ¶3 Proposition I: Brewer asserts the trial court erred in admitting the propensity testimony of A.K., J.H., L.R.N., and P.E.S. Brewer specifically contends the trial court abused its discretion when it failed to hold a proper pre-trial hearing. Brewer asserts the court should have required the State to present live testimony from the propensity witnesses. Without such testimony, Brewer argues the court was unable to properly examine the proposed witnesses' credibility, which rendered impossible the court's task of determining whether clear and convincing evidence of the challenged propensity evidence existed.

         ¶4 Brewer failed to specifically object to the challenged propensity evidence when it was presented at trial. [4] He has thus waived all but plain error review of this claim. See Lowery v. State, 2008 OK CR 26, ¶ 9, 192 P.3d 1264, 1268 (reviewing for plain error where defense counsel challenged the evidence during a hearing, but failed to renew his objection at the time it was actually offered at trial). To be entitled to relief under the plain error doctrine, Brewer must show an actual error, which is plain or obvious, and which affects his substantial rights. Baird v. State, 2017 OK CR 16, ¶ 25, 400 P.3d 875, 883; Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395; 20 O.S.2011, § 3001.1. "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." Baird, 2017 OK CR 16, ¶ 25, 400 P.3d at 883; Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.

         ¶5 Two separate provisions of the Oklahoma Evidence Code provide for admission of sexual propensity evidence-- 12 O.S.2011, §§ 2413 and 2414. James v. State, 2009 OK CR 8, ¶ 4, 204 P.3d 793, 794-95; Horn v. State, 2009 OK CR 7, ¶¶ 25, 27, 37, 41, 204 P.3d 777, 784, 786. To be admissible, challenged propensity evidence "must be established by clear and convincing evidence." Horn, 2009 OK CR 7, ¶ 40, 204 P.3d at 786. "If the defense raises an objection to the admission of the propensity evidence, the trial court should hold a hearing, preferably pre-trial, and make a record of its findings...." Id.

         ¶6 In determining the relevance of propensity evidence, trial courts should consider the following factors: "1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence." Horn, 2009 OK CR 7, ¶ 40, 204 P.3d at 786. In addition, when analyzing the dangers of admitting propensity evidence trial courts should consider: "1) how likely is it such evidence will contribute to an improperly based jury verdict; and 2) the extent to which such evidence will distract the jury from the central issues of the trial." Id. Trial courts may consider other relevant matters, including the credibility of the accuser in the other act, and must ensure that the other acts are shown by clear and convincing evidence. Id.

         ¶7 Reviewing the record evidence in the present case, we find the trial court properly admitted the challenged evidence as sexual propensity evidence. While proof of propensity evidence certainly may be established through the victim's testimony, proof may also be found in the pleadings and discovery. The rules of evidence, except those relating to privilege, do not apply where the judge is called upon to determine questions of fact preliminary ...


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