Holtzclaw v. State

448 P.3d 1134

Daniel K. HOLTZCLAW, Appellant,

v.The STATE of Oklahoma, Appellee.

No. F-2016-62

Court of Criminal Appeals of Oklahoma.

FILED AUGUST 1, 2019

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...