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Under the plain language of the statute, it was not necessary for the state to prove that the defendant was at least three years older than some actual child, or that the proposal was made to an actual child who is younger than 16 years old. The state need only prove that the indecent proposal was made to an individual that the defendant believed to be under 16 years old and that the defendant was at least three years older than the contrived child. This language was not included as an element in the instruction given to the jury. Because the jury instruction omitted the element of the mere belief that the proposal was made to a child under 16 years old as an alternative to a proposal having been made to an actual child, the real issue presented in this claim is whether the amended element rendered the instruction fatally defective. The defendant did not object to the instruction. Therefore, the matter will be reviewed for plain error.
In order to be entitled to relief for plain error, the defendant must show: 1) the existence of an actual error; 2) that the error is plain or obvious; and 3) at the error affected his substantial rights, meaning that the error affected the outcome of the proceeding. The appellate court held that even though it would review for plain error, the harmless error doctrine still applied to its analysis, said Tulsa criminal defense attorney Stephen Cale. This is because the only way to determine whether the admission of an element from a jury instruction affected the defendant’s substantial rights is to evaluate the error for its effect on the jury verdict.
Therefore, the question to be resolved under this analysis is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the jury verdict. In other words, the analysis looks as to whether it is clear be unoriginal doubt that a rational jury would’ve found the defendant guilty without the error, such as when the omitted element is supported by uncontroverted evidence. If the error in this case is harmless, it cannot by definition have affected the outcome of the defendants trial, and thus, cannot have affected his substantial rights.
In this case, it was clear be unoriginal doubt that a rational jury would’ve found him guilty of the crime of making a lewd or indecent proposal to the child despite the incomplete jury instruction because the defendant’s belief of his intended child victims age was supported by strong uncontroverted evidence. In other words, the jury had sufficient undisputed evidence to conclude that the defendant believed the person to whom he directed the indecent proposals was a child under 16 years old. Specifically, the detective who posed as a child told the defendant several times that she was 12 years old. The defendant admitted knowing or believing that the fake child was 12 years old. Additionally, the defendant did not dispute these facts. He even stipulated that he was 30 years old. Therefore, the evidence was overwhelming and uncontroverted that defendant was more than three years older than the pretend child.
The jury was fully aware that there was no actual child victim. Despite that fact, the jury found the defendant guilty. Given the strong and uncontested evidence of the defense belief that he was communicate with a 12-year-old child, it’s obvious that a properly instructed jury would’ve been even more likely to return a guilty verdict. On this basis, and is clear beyond a reasonable doubt that the defective jury instruction did not contribute to the verdict. The error is harmless be unoriginal doubt. Where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would’ve been the same without the error, the erroneous instruction is properly found to be harmless.
The defendant next argued that the trial court erred by issuing a non-uniform jury instruction. The instruction read that the fact that an undercover officer was involved in the detection and investigation of this fence does not constitute a defense to the charge. The defendant contended that this instruction is an entrapment this instruction that was improperly given because he never raised and entrapment defense. The defendant also argued that the instruction is misleading, allowing that the state need not prove those portions of a jury instruction listing the elements of the offense requiring proof that the indecent the proposal was made to a child under 16 years old. Look for the best Tulsa criminal defense attorney near you.
The defendant pointed to a note from jurors that asked whether though were conflicting instructions and whether they could have a layman explanation of one of the instructions. The trial court responded by saying that the jury had been given all of the law and the evidence that is proper for it to consider in reaching a verdict. The state argued that the supplemental instruction was not and entrapment defense instruction the rather an explanation of the elements of the crime charged. According to the prosecution, and the instruction supplemented the uniform instruction given by allowing the jury to find the defendant guilty if the police officer is posing as a victim.
The defendant objected to this instruction, preserving the alleged error for the appellate courts review. At trial court’s ruling on jury instructions are reviewed for an abuse of discretion. If the instructions as a whole accurately state applicable law, there is no abuse of discretion, said Tulsa criminal defense attorney Stephen Cale.
The Oklahoma Court of Criminal Appeals has explained that one who is instigated, and induced, or lured by a law officer or other person into the commission of the crime which he had otherwise no intention of committing may avail himself of the defense of entrapment. The appellate court found that the contested instruction did not instruct jurors on these elements but instead merely informed jurors the fact that a law enforcement officer was involved in the detection or investigation of the defense of making a lewd or indecent proposal to a child and that it was not a defense to that charge. Have your family look for the best Tulsa crminal defense attorney.