# Fairchild v. State

> Court of Criminal Appeals of Oklahoma · May 11, 2000 · 998 P.2d 611

URL: https://www.frixlaw.com/law-library/cases/9598148

## Case

- **Full name:** Richard Stephen FAIRCHILD, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** May 11, 2000
- **Citations:** 998 P.2d 611; 1999 OK CR 49; 1999 OK 49; 1999 WL 1796709
- **Precedential status:** Published
- **Opinion:** Dissent by Strubhar
- **Judges:** Lile, Strubhar, Chapel, Lumpkin, Johnson
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9598148

## How later opinions describe it (automated extraction)

- stating that child abuse murder is a general intent crime requiring, at a minimum, that the State prove the defendant "willfully" injured or willfully used unreasonable force against a minor child
- holding crime of first degree murder by child abuse is a general intent crime
- affirming trial court's refusal to instruct on meaning of life sentence and meaning of sentence of life without possibility of parole
- describing willfully starving a child as one of several examples of "acts which result in injury or death but do not require force"

## Opinion text

STRUBHAR, Presiding Judge,
Dissenting:
¶ 1 Because the majority chooses to depart from this Court’s reasoned and well-settled precedent finding child abuse murder is a specific intent crime, I must dissent. 1 Hence, I remain unwavering in my opinion that the specific intent to injure is an element of child abuse murder including child abuse murder committed by the willful use of unreasonable force. See Fairchild v. State, 1998 OK CR 47 , 965 P.2d 391, 403 (Lane, J. dissenting joined by Strubhar, V.P.J.). See also Grady v. State, 1997 OK CR 67 , 947 P.2d 1069; Bannister v. State, 1996 OK CR 60 , 930 P.2d 1176 ; Hockersmith v. State, 1996 OK CR 51 , 926 P.2d 793 .
¶ 2 Child abuse murder is nothing more than another form of felony murder, albeit in a section all by itself. See Drew v. State, 1989 OK CR 1 , ¶¶ 13 & 15, 771 P.2d 224 , 228 & 229; 21 O.S.Supp.1998, § 701.7(C). The mens rea element of child abuse murder, like other enumerated felonies, is supplied by the underlying felony which in this case is child abuse (10 O.S.Supp.1999, § 7115 formerly 21 O.S.1991, § 843) which requires the acts of abuse be committed willfully or maliciously. See Drew, 1989 OK CR 1, ¶ 13 , 771 P.2d at 228 . I recognize that the statutory definition of “willfully” as it applies to the intent with which an act is done or omitted, “implies simply a purpose or willingness to commit the act or the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” 21 O.S.1991, § 92. In other words, “willfully” as defined in section 92 connotes general intent rather than specific intent. The terms “malice” and “maliciously” when used in a criminal statute mean “a wish to vex, annoy or injure another person, established either by proof or presumption of law.” 21 O.S. 1991 , § 95. Said definitions of “willfully” and “maliciously” are to be employed throughout Title 21 unless a different sense plainly appears. 21 O.S.Supp.1997, § 91.
¶ 3 In Hockersmith, 1996 OK CR 51 , ¶¶ 10-12, 926 P.2d at 795 , the Court held that it was plain error to instruct the jury that the term “wilful” required no intent to violate the law, or to injure another, or to acquire any advantage. We found the statutory definition employed in the jury instructions created conflict with the specific intent crime of child abuse. Id. In so holding, the Court correctly concluded the statutory definition of “willful” did not comport with the crime of child abuse and that a “different sense [of willful] plainly appeare[d]” in this context. 21 O.S.Supp.1997, § 91. This was made clear in Bannister, 1996 OK CR 60, ¶ 4 , 930 P.2d at 1178 , in which the Court followed Hockersmith and stated:
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_” In 21 O.S.1991, § 91, the legislature provides that “[wherever the terms mentioned in the following sections are employed in this chapter, they are deemed to be employed in the senses hereafter affixed to them, except where a different sense plainly appears.” While 21 O.S.1991, § 92 then provides that a person may act “willfully” and yet not intend to injure, “a different sense of [the term Svill- *634 fully’] plainly appears” when it is used in the statutes on child abuse and first degree child abuse murder. As employed in those statutes, the term willful — used interchangeably with malicious — must require an intent to injure if the mens rea element for those crimes is to make any sense, (footnotes omitted)
¶ 4 In Grady, 1997 OK CR 67, ¶ 6 , 947 P.2d at 1071 , the Court held the improper statutory definition of “willful” did not warrant reversal and was not plain error since Grady’s jury was properly instructed bn the elements of the crime of child abuse murder, including the requirement of an intent to injure. Regardless of the Court’s decision concerning the impact of an erroneous definition of “willful” in the jury instructions in these cases, one unmistakable finding in Hockersmith, Bannister and Grady remains — child abuse, and consequently child abuse murder, are specific intent crimes requiring an intent to injure.
¶ 5 In Revilla v. State, 1997 OK CR 48, ¶ 5 , 946 P.2d 262, 265 , the Court stated that “[t]he decision in Hockersmith merely applied established law to the particular facts of the case” (emphasis added) and therefore the claim challenging the jury instruction defining “willful” could not be reviewed on the merits on post-conviction because Hock-ersmith was not an intervening change of law. The established law relied on was Re- villa, 2 itself, and Watkins v. State, 1987 OK CR 215 , 744 P.2d 967, 970 . In Revilla , the Court found the jury instructions utilizing the mens rea of “willfully” or “maliciously” “adequately informed [the jury] of the State’s burden to prove that the [child’s] death ... was intentional.” Revilla, 1994 OK CR 24, ¶ 14 , 877 P.2d at 1149 . In Watkins , the Court dismissed Watkins’ conviction for child abuse because Watkins’ conduct toward the child only showed a reckless disregard for human life rather than an intent to injure as mandated by the “clear and readily understandable” statutory language. Watkins, 1987 OK CR 215, ¶14 , 744 P.2d at 970 . Based on the above precedent, I see no need to retreat from our prior decisions finding child abuse and child abuse murder specific intent crimes. 3
¶ 6 Also troubling is the majority’s holding that a general intent crime, is death eligible without any finding of culpability. This holding allows for the imposition and carrying out of the death penalty on a person who, without any intent to injure much less intent to take the life of a child, nonetheless somehow causes the death of that child. The majority relies on Wisdom v. State, 1996 OK CR 22, ¶ 40 , 918 P.2d 384 , 395 for its holding. Wisdom was a child abuse murder case decided five months prior to Hockersmith when the.Court was functioning under the belief and law that child abuse murder was a specific intent crime as .evidenced by its prior decisions and subsequent Hockersmith decision. See Revilla, 1994 OK CR 24, ¶ 14 , 877 P.2d at 1149 ; Watkins, 1987 OK CR 215, ¶ 14 , 744 P.2d at 970 . In reviewing a claim that Wisdom was entitled to Enmund/Tison 4 instructions, the Wisdom court distinguished and strictly construed the Enmund holding, concluding culpability instructions were not necessary in the second stage of a capital child abuse murder case where the defendant actually committed intentional abuse.
*635 ¶ 7 Two recent decisions from the United States Supreme Court counsel that a culpability assessment, i.e. a finding of intentional harm, must be made at some point in the process for the death penalty to be constitutionally sound in felony murder eases where intent to kill is not an element of the crime even if the defendant is the actual killer. This constitutes an expansion of Enmund/Ti-son but is consistent with Eighth Amendment jurisprudence because any capital sentencing scheme “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877 , 103 S.Ct. 2733, 2742 , 77 L.Ed.2d 235 (1983).
¶8 In Hopkins v. Reeves, 524 U.S. 88, 90-91 , 118 S.Ct. 1895, 1898 , 141 L.Ed.2d 76 (1998), the Court held that Beck 5 does not require state trial courts to instruct juries on offenses that are not lesser include offenses of the charged crime under state law. In so holding, the Court found that the states are not constitutionally required to include a mens rea requirement with respect to killing in their definitions of felony murder so long as an Enmund/Tison culpability assessment is performed before the death penalty is imposed. Reeves, 524 U.S. at 100 , 118 S.Ct. at 1902 . In Loving v. United States, 517 U.S. 748, 773-74 , 116 S.Ct. 1737, 1751 , 135 L.Ed.2d 36 (1996), the Supreme Court held the President had the delegated authority to prescribe aggravating circumstances for the military capital punishment scheme to maintain the constitutional validity of it. The additional aggravating factors establishing a higher degree of culpability were necessary “to save” the military’s death eligible felony murder statute because the Code of Military Justice article criminalizing felony murder required no specific intent to kill. Loving, 517 U.S. at 756 , 116 S.Ct. at 1742 .
¶ 9 Following the Supreme Court’s decision and its voiced concerns during oral argument about the imposition of the death penalty on felony murder defendants whose crimes required no intent to kill, Loving sought further review of his conviction and death sentence. He argued in part that the military article defining felony murder was constitutionally infirm as a capital offense because it did not require an intent to kill and such defect could not be remedied because he was the actual killer or triggerman. Loving v. Hart, 47 M.J. 438, 441 (U.S.Ct.App. Armed Forces 1998), cert. denied, 525 U.S. 1040 , 119 S.Ct. 590 , 142 L.Ed.2d 533 (1998). Because neither Enmund nor Tison involved actual killers, the Loving Court considered “whether a person who ‘actually killed’ may be sentenced to death absent a finding that the person intended to kill.” Loving, 47 M.J. at 443 . The Loving court stated:
Without speculating on the views of the current membership of the Supreme Court, we conclude that when Enmund and Tison were decided, a majority of the Supreme Court was unwilling to affirm a death sentence for felony murder unless it was supported by a finding of culpability based on an intentional killing or substantial participation in a felony combined with reckless indifference to human life. Thus, we conclude that the phrase, “actually killed” as used in Enmund and Tison, must be construed to mean a person who intentionally kills, or substantially participates in a felony and exhibits reckless indifference to human life.
Id. The Supreme Court declined further review of this issue that it voiced such concerns about during oral argument denying Loving’s petition for a writ of certiorari. Loving v. Hart, 525 U.S. 1040 , 119 S.Ct. 590 , 142 L.Ed.2d 533 (1998).
¶ 10 Like in Loving, we are bound by the requirement of Zant, 462 U.S. at 877 , 103 S.Ct. at 2742 , to “genuinely narrow the class of persons eligible for the death penalty” and this can only be done in child abuse murder cases if the defendant’s level of culpability is part of the narrowing process. See Loving, 47 M.J. at 444 . As stated above, the better solution is to follow our established precedent holding child abuse murder is a specific intent crime and avoid the Enmund/Tison problem altogether as we did in Wisdom . Barring the return to our prior holdings that *636 child abuse murder is a specific intent crime, child abuse murder under 21 O.S.1991, § 701.7(C) can pass constitutional muster as a capital offense only if it is combined with our statutory aggravating circumstances (none of which concern the defendant’s culpability for the murder) and the culpability requirements of Enmund/Tison. Combining these factors in assessing punishment reasonably justifies the imposition of the more severe sentence of death on the . defendant vis a vis others found guilty of murder thereby satisfying Zant .
¶ 11 To maintain the constitutional validity of Oklahoma’s capital sentencing scheme in child abuse murder cases, a culpability assessment must be made at some point in the process to determine if the defendant intentionally killed or participated in the child abuse exhibiting a reckless indifference to human life. While I would rather have the sentencer who hears all the evidence and sees the witnesses first hand make this determination, I recognize that, such a finding may be made on appeal. Cabana v. Bullock, 474 U.S. 376, 392 , 106 S.Ct. 689, 700 , 88 L.Ed.2d 704 (1986) Accordingly, this Court should either mandate that capital sentencing juries make this determination or undertake such a culpability assessment in future child abuse murder cases where the death penalty is imposed to ensure the ultimate penalty is exacted on the small class of murderers who “are deemed the worst of the worst murderers.” Cheney v. State, 1995 OK CR 72, ¶ 9 , 909 P.2d 74, 78 . By making child abuse murder a general intent crime and holding-no Enmund/Tison culpability assessment is required for child abuse murder defendants, the majority paves the way for a higher court to strike down the death penalty in this and other horrific cases simply to affirm the instant case. As I cannot join the majority in this endeavor, I dissent.
. Although I believe this case is not procedurally proper for rehearing, see Rule 3.14(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999) and Fairchild v. State, 1999 OK CR 30 , 992 P.2d 349 (Strubhar, P.J. dissenting), I choose to focus my remarks on the merits. In my opinion since the original opinion was withdrawn, this opinion constitutes the opinion in this matter and both parties have the right to pursue further review in accordance with this Court’s rules.
. Revilla v. State, 1994 OK CR 24 , 877 P.2d 1143 , cert. denied, 513 U.S. 1096 , 115 S.Ct. 764 , 130 L.Ed.2d 661 (1995).
. 1 cannot agree that the isolated reference in Workman v. State, 1991 OK CR 125, ¶ 22 , 824 P.2d 378, 383 , cert. denied, 506 U.S. 890 , 113 S.Ct. 258 , 121 L.Ed.2d 189 (1992), may serve as this Court's sweeping pronouncement that child abuse murder is a general intent crime in light of our more definitive cases on the subject matter.
. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987). In Enmund, 458 U.S. at 797 , 102 S.Ct. at 3376 , the Supreme Court held that ¾ defendant cannot receive a senténce of death for felony murder committed by an accomplice unless the defendant knew the killing would take place, knew lethal force would be used, killed, or attempted killing. In Tison, 481 U.S. at 158 , 107 S.Ct. at 1688 , the Supreme Court modified En-mund holding that a defendant who was a major participant in the felony committed, who displayed reckless indifference to human life, may be sufficiently culpable to receive the death penalty. See also Allen v. State, 1994 OK CR 30, ¶ 15 , 874 P.2d 60, 64 .
. Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9598148. Public record. Not legal advice.