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In 2013, Billy was tried by a jury found guilty of loitering within the zone of safety of the school after conviction of a sex offense involving a person under 13 years old. The jury sentenced him to jail time and a $2500 fine. Billy appealed and alleged three errors. The first was that the statute concerning loitering was vague. Secondly he argued that the states case was insufficient to convict him of loitering. Thirdly he said that his conviction in the case was in violation of the rule prohibiting ex post facto prosecutions. Fourthly, he argued that he was denied his right to a fair and impartial judge during several stages of the proceedings because the judge had a conflict in the case. Fifth, he argued that the trial court improperly denied his right to strike a juror or for cause.
In his first argument, the defendant argued that the statute dealing with loitering was unconstitutionally vague. The defendant didn’t make this objection a trial. Therefore he waived all but plain error. So, to obtain relief, the defendant must prove a plane or obvious error affected the outcome of the proceeding. The appellate court will correct plain error if the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.
A conviction under criminal law that is so vague that it fails to give ordinary people fair notice of prohibited conduct, or is so standardless that it invites arbitrary enforcement, violates due process of law. It’s presume that the acts of the legislature a constitutional unless otherwise shown. Statute is not unconstitutionally vague have reasonable people would know their conduct is at risk.
Statute at issue prohibited loitering by persons, convicted of sex offenses with victims under 13 years old, within a zone of safety defined by statute. Statute provides such persons are exempt from prohibition only under the following circumstances and limited to a reasonable amount of time to complete the specified tasks. One of those authorized circumstances is where the offender is a custodial parent or legal guardian of an enrolled student who is enrolling, delivering, or treating the child at the school during regular school hours or for extracurricular activities. Statute further requires that the sex offender must inform administrators of his status as an offender an update the school about specific times the person will be within the zone of safety.
Anyone must register as a sex offender who is present in the zone of safety without a statutory exemption and the required prior notice to administrators is loitering in violation of the law. Therefore, the appellate court found that the statute is not unconstitutionally vague, said Tulsa criminal defense attorney Stephen Cale.
In his second argument, the defendant said that the evidence is legally insufficient to support his conviction. This argument requires the court to determine whether, during the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime charge be unoriginal doubt. The defendant was convicted of child sexual abuse with the victim under the age of 13. It was noncustodial parent or legal guardian of an enrolled student when he entered the zone of safety without the a statutory exemption, and without proper advance notice. It was therefore guilty of loitering within the zone the safety.
In his third argument, he states that his conviction under a 2010 version of the statute violates the prohibition against ex post facto laws, said Tulsa Criminal Defense Attorney Stephen Cale. A statute will be upheld unless it is plainly inconsistent with fundamental law. Every law that criminalizes an act done before the passing of the law or makes the crime greater then it was when committed, or inflicts a greater punishment than when it was committed, or receives less, or different, testimony the required at the time defense to convicted offender is an ex post facto law.
According to the Oklahoma Court of Criminal Appeals, the defendant’s conduct was not innocent under the law when committed. The 2010 law did not increase punishment for his offense or make his crime greater. Neither does it require less, or different, testimony been required at the time of the fence to convict him. Therefore, the appellate court said that there was no ex post facto violation.
In his fourth argument, the defendant argued that the judge who acted as magistrate at the preliminary hearing and ruled on certain motions have a conflict of interest and should be disqualified. However, the reviewing court said that claim was waived by his failure to object in the proceedings. A judge cannot preside in the case where he has been an attorney for either side. In this case, the judge was not previously an attorney for either side. The fact that the judge had prosecutor the defendant in a previous case did not by itself show prejudice. Therefore his disqualification was not required.
Lastly, the defendant argued that it was reversible error for the trial court to refuse to excuse a prospective juror. The trial court denied his challenge this juror for cause. However, defense counsel removed the juror with the first peremptory strike. The Oklahoma Court of Criminal Appeals will reverse a conviction based on a denial of a challenge for cause only where the erroneous ruling reduce the appellant’s peremptory challenges and we was forced, over objection, to keep an unacceptable juror. The defense attorney used all five peremptory strikes, but didn’t request any additional ones. He also failed to preserve this claim by making a record of which unacceptable jurors the defendant would have excused had a challenge for cause been granted. Therefore this claim of argument was waived.