finding that information regarding taking and possessing obscene photographs and videos of children was not stale, despite passage of three years since material was last seen in defendant’s possession; affiant averred that he knew from “training and experience” that “individuals who are involved with the sexual exploitation of children and child pornography, rarely, if ever, dispose of their sexually explicit materials”
How later courts described this case
- finding that information regarding taking and possessing obscene photographs and videos of children was not stale, despite passage of three years since material was last seen in defendant’s possession; affiant averred that he knew from “training and experience” that “individuals who are involved with the sexual exploitation of children and child pornography, rarely, if ever, dispose of their sexually explicit materials”
- defendant asked to be excused from courtroom prior to the jury's exits and during arguments on motions
- relying upon same rationale
Written by the judges who cited it.
The opinion
ORDER DENYING MOTION FOR REHEARING
Carroll Evans Gregg, Petitioner, was tried by jury and convicted of nineteen (19) counts of Lewd or Indecent Acts With a Child Under Sixteen, twelve (12) counts of Oral Sodomy, four (4) counts of Second Degree Rape and three (3) counts of First Degree Rape in Oklahoma County District Court, Case No. CRF-89-4690. He was sentenced to one hundred thirty one (131) years imprisonment.
By published opinion handed down December 4, 1992, this Court reversed and remanded with instructions to dismiss one (1) count of Lewd or Indecent Acts With a Child Under Sixteen, and affirmed judgment and sentence for the remaining counts. Petitioner is now before the Court on a Petition for Rehearing.
Petitions for Rehearing are governed by Rule 3.14 of the Court of Criminal Appeals. 22 O.S. Ch. 18, App. As provided by Rule 3.14, a Petition for Rehearing shall not be filed as a matter of course but only for two reasons:
(1) That some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
(2) That the decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.
The petition filed herein is, in large part, a reiteration of the arguments contained in the original brief on appeal. Those issues have been fully addressed in the opinion handed down and will not be reconsidered. Additionally two (2) novel issues are submitted which do not come within the parameters of a Motion for Rehearing. These two issues are ineffective assistance of trial counsel, and insufficient evidence to support conviction for Count 27. These issues are not properly before us and will not be addressed.
Petitioner asserts one issue which is properly before us, for it raises the question whether the opinion handed down in this case is in conflict with a controlling decision of this Court.
Petitioner argues the opinion handed down in his case is in conflict with Conner v. State, 839 P.2d 1378 (Okl.Cr.1992). In that case, the trial judge appointed counsel to represent a child victim without the statutory authority to do so. Counsel actively participated in the trial and advocated conviction through vigorous cross-examination of witnesses, and closing argument to the jury. We found this active advocacy caused reversible error for the appointment of counsel was unauthorized, and counsel’s active advocacy created an unauthorized two-against-one situation.
Petitioner argues the appointment of counsel for the child victim, S.S., likewise requires reversal in this case. We disagree. Initially we note counsel was not appointed absent statutory authority by the criminal trial judge. Counsel had been properly appointed to represent S.S. in a pending juvenile matter which was separate from this criminal trial. Therefore counsel’s appointment, unlike that in Conner was not unauthorized. Furthermore, counsel’s participation in trial was minimal.
The transcript indicates counsel for S.S. was introduced to the jury and was present throughout the trial. Her advocacy was *882 limited to passing a note to the prosecutor during voir dire, advising the trial judge in a bench conference outside the hearing of the prospective jurors that she may have represented one of the veniremen in the past, and arguing a Motion in Limine to the judge in chambers. Counsel never asserted herself in front of the jury. Even in chambers counsel did not place the appellant in a “two against one” situation, for the State and the defense both wanted certain evidence of the child’s prior sexual activity admitted. It was excluded due to efforts of the child’s attorney. Under the circumstances we find counsel’s appointment to fall within the category of harmless error carved in Conner, 839 P.2d at 1380 .
IT IS THEREFORE THE ORDER OF THE COURT that the Motion for Rehearing filed herein is DENIED.
IT IS SO ORDERED.
/s/ James F. Lane JAMES F. LANE, Presiding Judge
/s/ Gary Lumpkin GARY LUMPKIN, Vice Presiding Judge
/s/ Charles A. Johnson CHARLES A. JOHNSON, Judge