Charles Eugene Bannister v. State

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Charles Eugene Bannister v. State
1996 OK CR 60
930 P.2d 1176
Case Number: F-95-973
Decided: 12/26/1996
Charles Eugene BANNISTER, Appellant, v. STATE of Oklahoma, Appellee
Oklahoma Court of Criminal Appeals

S U M M A R Y O P I N I O N

CHAPEL, V.P.J.:

[930 P.2d 1177]

¶1 Charles Eugene Bannister was tried by a jury and convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(C), in Payne County District Court Case No. CRF-94-143. Bannister waived jury sentencing and the Honorable Donald L. Worthington imposed a sentence of life imprisonment. Bannister has perfected his appeal of this conviction.

¶2 Bannister raises the following propositions of error in support of his appeal:

In a motion to supplement filed after his appellate brief, Bannister cites Hockersmith v. State 1 to support his additional claim that contradictory and confusing jury instructions setting forth the elements of first degree child abuse murder constitute plain 2 error warranting reversal. We agree and remand this case for a new trial.

¶3 Bannister's trial judge administered the following jury instructions explaining the elements of first degree child abuse murder:3

[930 P.2d 1178]

The confusion arises over the manner in which the term "willful" is defined. While the first degree child abuse murder instruction accurately told the jury that this offense requires "willful or malicious injuring, torturing, maiming or using of unreasonable force,"

¶4 At best, these instructions confused the meaning of the critical mens rea element necessary for a conviction. At worst, they effectively instructed the jury that Bannister was guilty of first degree child abuse murder whether he did or did not intend to injure, torture, maim or use unreasonable force on the child victim. We do not believe this is what the legislature intended when it defined child abuse and first degree child abuse murder as the "willful or malicious injuring, torturing, maiming or using of unreasonable force … upon [a] child…."

¶5 Although the jury instructions now at issue were taken either from statutes

¶6 The definition of "willful," as provided both by statute and in the uniform instructions, is at odds with the plain meaning of that term as it is used in the statutes defining the crimes of child abuse and first degree child abuse murder. Accordingly, this definition of "willful" should not be included in jury instructions when the accused has been charged with either child abuse or first degree child abuse murder. Defendants facing charges of either child abuse or first degree child abuse murder are thus entitled to have their juries instructed that both "willful" and [930 P.2d 1179] "malicious"-collectively the mens rea component in each of these crimes-require a wish or an intent to injure, vex or annoy another person.

¶7 We also note the existence of some additional errors in this case which should be avoided upon retrial. In his fifth proposition, Bannister claims that the trial court should have instructed the jury that April Bannister was an accomplice whose testimony required corroboration before it could be believed. We agree. The test for determining whether a person is an accomplice is whether he or she could have been charged with the crime for which the accused is on trial.

¶8 Finally, we agree with Bannister's proposition two claim that the trial court improperly instructed the jury that "other crimes" evidence was admissible to show some sort of "plan."

DECISION

The Judgment and Sentence of the trial court is REVERSED and this cause is REMANDED for a NEW TRIAL.

ATTORNEYS AT TRIAL
JOHN D. ECHOLS
SCOTT D. KEITH
BRYAN L. DUPLER
P.O. BOX 701196
TULSA, OK 74170-1196
ATTORNEYS FOR DEFENDANT

ELIZABETH A. PAUCHNIK
LAURA AUSTIN THOMAS
ASSISTANT DISTRICT ATTORNEYS
PAYNE COUNTY COURTHOUSE
STILLWATER, OK 74074
ATTORNEYS FOR STATE

ATTORNEYS ON APPEAL

OPINION BY

JOHNSON, P.J.: CONCUR

LUMPKIN, J.: CONCUR IN RESULTS

LANE, J.: CONCUR

STRUBHAR, J.: CONCUR

FOOTNOTES

LUMPKIN, JUDGE: CONCUR IN RESULTS

¶1 I concur in the results reached by the Court based on stare decisis. However, I continue to disagree with the Court's action as set out in my separate vote in Hockersmith v. State, ___ P.2d ___, 67 OBJ 3049, 3051 (Okl.Cr.1996).