BURGESS v. STATE

BURGESS v. STATE
2010 OK CR 25
Case Number: F-2009-308
Decided: 11/16/2010
MICHAEL G. BURGESS, Appellant, v. THE STATE OF OKLAHOMA, Appellee.

SUMMARY OPINION

LUMPKIN, JUDGE:

¶1 Appellant, Michael G. Burgess, was tried by jury and convicted of Engaging in a Pattern of Criminal Offenses (Count 1) (

¶2 Appellant raises the following propositions of error in this appeal:

I. The Trial Court Abused Its Discretion In Denying Mr. Burgess' Motion To Dismiss Counts 1, 26, 27, 29, 32, 33, And 34 Of The Amended Information Because The State Failed To Present Sufficient Evidence At The Preliminary Hearing To Prove That Mr. Burgess Committed The Offenses As Charged In Those Counts.

II. Insufficient Evidence Was Presented To Support Mr. Burgess' Convictions.

III. The Jury Instructions As Given Were Not Constitutional And Deprived Mr. Burgess Of His Due Process Rights Under The Fourteenth Amendment To The United States Constitution With Respect To All The Counts For Which He Was Convicted.

IV. In Light Of Unconstitutional Jury Instructions, The Deleterious Effect Of Which Pervaded And Tainted the Evidence Relating To All Of The Allegations Presented At Trial, And In Light Of Uncorroborated And Contradictory Testimony From The Alleged Victims, A Modification Of Mr. Burgess' Clearly Excessive Sentence Is Warranted.

¶3 After a thorough consideration of these propositions and the entire record before us on appeal including the original records, transcripts, and briefs of the parties, we have determined that neither reversal nor modification of sentence is warranted under the law and the evidence.

¶4 Appellant was the duly elected Sheriff of Custer County. Pursuant to his elected position, Appellant was appointed to serve on the Washita/Custer County Drug Court Team. Appellant's office conducted urinalysis testing of the drug court participants and one of his deputies was the drug court compliance officer. Appellant actively participated on the Drug Court Team.

¶5 Appellant befriended drug court participant, J.M. On February 7, 2006, Appellant repeatedly telephoned J.M. and requested that she travel from Custer County to his hotel room in Oklahoma City. J.M. acquiesced when Appellant demanded that she meet him or he would vote for her termination from drug court. When she arrived at the hotel, Appellant provided J.M. with alcohol, engaged in sexual intercourse with her, and performed oral sodomy on her person. Thereafter, Appellant engaged in sexual intercourse with J.M. at her home, at the home of a friend of the Appellant's, at a motel, and at Appellant's home while his wife was on vacation. At Appellant's home, Appellant gave J.M. alcohol, engaged in several instances of intercourse, and performed oral sodomy upon J.M. Appellant and J.M. travelled to Oklahoma City for Drug Court Day at the State Capitol. Appellant repeatedly demanded and engaged in instances of sexual intercourse with J.M. in his hotel room.

¶6 During this timeframe, Appellant intervened in J.M.'s urinalysis testing at the Custer County Jail. Appellant instructed his employees to permit J.M. to test in the courthouse bathroom which was nicer than the jail restroom. On at least two separate occasions, Appellant intervened and stopped the jail employees from reporting J.M. for a positive test, took J.M. for a mouth swab test, and had the jail employees discard the positive urinalysis test.

¶7 On January 3, 2007, Appellant assisted the drug court compliance officer with an investigation into drug court participant, B.B. Appellant discovered that B.B. was in violation of the Drug Court's rules. He contacted the Drug Court Judge and pursuant to her order took B.B. into custody. The compliance officer assisted and investigated other drug court participants while Appellant drove B.B. to the jail. Through repeated comments on her future, Appellant painted the grim picture of jail, termination from Drug Court, and imprisonment for B.B. Appellant told B.B. that he could save her from prison and make her stay in the jail more comfortable. He pulled off the road near two barns and told B.B. that he would help her if she would help him. Appellant directed B.B. to perform oral sodomy on his person and engaged in sexual intercourse with B.B. The records within the sheriff's department reflected that it took Appellant approximately 44 minutes to transport B.B. the 5 mile distance from her home to the jail.

¶8 In May, 2007, J.M. informed Appellant that she could not do it anymore. Appellant informed her: "Well, you know what that means." (Tr. V, 1210, 1453-54). Subsequently, J.M. tested positive on her urinalysis test at the Custer County Jail. She tried to get Appellant to intervene both before and after the test, however, he ignored her requests. J.M. was placed in the Custer County Jail and sanctioned to one year inpatient treatment by the Drug Court. As she left the courtroom, she screamed: "I've effed [sic] the sheriff all this time, you can't do this to me." (Tr. V, 1211, 1490-92).

¶9 J.M.'s cousin, C.T., contacted Appellant and informed him that J.M. had DNA evidence proving their sexual relationship. Appellant offered to help C.T.'s brother get out of prison if she would obtain the evidence from J.M. and bring it to him.

¶10 The investigation into the circumstances further revealed that in the fall of 2005, Appellant had groped the buttocks and chest of a female deputy against her will while she was on duty inside the county courthouse. She left her employment with the county soon thereafter.

¶11 Appellant testified in his own defense at trial. He denied the incidents with B.B. and the female deputy. He flatly admitted a sexual relationship with J.M. but denied that there was anything unlawful about it. Under cross examination, Appellant was forced to admit that the Drug Court had control or authority over the lives of its participants.

¶12 In Propositions I and II, Appellant seeks to attack the special provisions of

¶13 This Court has previously recognized that "any county, precinct, district, city, town or school district" constitutes a political subdivision. Davenport v State, 20 Okl.Cr. 253, 256,

¶14 The Drug Court programs are statutorily required to provide "vigilant supervision" of their participants.

¶15 The Legislature has defined the term "employee" as any person who is authorized to act in behalf of a political subdivision or the state with or without being compensated.

¶16 As to Proposition I, Appellant did not file a formal motion to quash before the district court arraignment thus he has waived appellate review of the alleged error for all but plain error. Primeaux v. State,

¶17 It must be noted that the Oklahoma Legislature has determined that those citizens who have been entrusted to the custody, supervision or authority of individuals serving in the capacity of officers, employees, or contractors with the state or its political subdivisions are due special protection during the time of custody or supervision. It is readily apparent that Appellant, as the elected Sheriff of Custer County, and statutorily designated member of the Drug Court team, is a person included within the parameters of the penal statutes in which the Legislature sought to include as owing special trust and confidence to those citizens ordered into their custody or control. Appellant violated that trust, and the provisions of the penal statutes, drafted to protect those committed citizens. The provisions of both

¶18 As to Proposition II, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the victims were under the legal custody or supervision of a political subdivision of the state and that Appellant was an employee of the political subdivision that exercised authority over the victims beyond a reasonable doubt. Easlick v. State,

¶19 Within Proposition II, Appellant also challenges the sufficiency of the evidence as to those offenses concerning victim, B.B. We find that the testimony of prosecuting witness B.B. did not appear incredible or so unsubstantial as to make it unworthy of belief. Ray v. State,

¶20 As to Proposition III, Appellant properly preserved appellate review of his claim that the jury instructions inaccurately stated the law by raising a timely objection at trial. Simpson,

¶21 Appellant further claims that the jury instructions removed the State's burden to prove all of the essential elements of the offenses. Appellant did not raise this challenge before the district court, thus he has waived appellate review of the challenge for all but plain error. Simpson,

¶22 As to Proposition IV, we find Appellant's sentences are within the applicable statutory ranges and when considered under all the facts and circumstances of the case, are not so excessive as to shock the conscience of the Court. Rea v. State,

¶23 Accordingly, this appeal is denied.

DECISION

¶24 The judgment and sentence are hereby AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF MAJOR COUNTY
THE HONORABLE N. VINSON BAREFOOT, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

STEVEN HUDDLESTON
TIMOTHY R. HENDERSON
HUDDLESTON, PIKE, HENDERSON & PARKER
PO BOX 95146
OKLAHOMA CITY, OK 73143
COUNSEL FOR APPELLANT

JAMES M. BORING
DISTRICT ATTORNEY
JAMES L. SWARTZ
ASSISTANT DISTRICT ATTORNEY
319 N. MAIN
GUYMON, OK 73942
COUNSEL FOR THE STATE

APPEARANCES ON APPEAL