Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans

¶38 The jury heard Eisenberg’s testimony immediately after OSBI criminalist Mary Long testified that the OSBI DNA unit had completed its validation process, was still involved in the accreditation process with the American Society Crime Lab Directors, and had received blood stains to test in relation to Shawn Marie Williams.⁴ Eisenberg worked as a consultant to the OSBI lab for a number of years and worked with Long during that time. Eisenberg stated the methodologies the lab utilized were the standard methodologies used by virtually every laboratory in the country using the RFLP method of analysis. He testified the OSBI lab completed all of its validation work, and he remained as a consultant with the lab until 1997, reviewing ongoing case work, testifying in cases, and conducting ongoing audits of the laboratory. Eisenberg said the American Society Crime Lab Directors was one of only two laboratories involved in the accreditation of DNA forensic laboratories. He stated the accreditation process is extremely lengthy and expensive and "probably less than half of all the forensic laboratories are accredited by the ASCLD lab." Eisenberg stated that, in his opinion, nothing would prohibit the DNA portion of the OSBI lab from being accredited. Dr. Eisenberg testified extensively about the processes and methods of DNA analysis. He reviewed a DNA consultant case review – a report of the analysis of DNA evidence received from Appellant and Shawn Marie Williams by the OSBI lab.

¶39 The decision whether to allow an expert witness to testify rests within the discretion of the trial court and its decision will not be reversed absent an abuse of discretion. Barnhart v. State, 1977 OK CR 18, ¶ 20, 559 P.2d 451, 458. Here, the defense attacked the DNA test results, the accreditation of the lab, and the qualifications of chemist Long to perform the tests. Eisenberg’s expert testimony regarding the testing procedures utilized by the lab, his knowledge of the accreditation process, and the qualifications of the lab and Long’s qualifications to perform the tests was relevant and helpful to the trier of fact in its understanding of the DNA evidence presented by the State. The trial court did not abuse its discretion by allowing Eisenberg to testify.⁵

OTHER CRIMES EVIDENCE

Evidence of other crimes, wrongs or bad acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

12 O.S.1991, § 2404(B); Burks v. State, 1979 OK CR 10, ¶ 2, 594 P.2d 771, 772, overruled in part on other grounds in Jones v. State, 1989 OK CR 7, ¶ 8, 772 P.2d 933, 936. These exceptions to the admission of other crimes evidence are not exclusive. Myers I, 2000 OK CR 25, ¶ 24, 17 P.3d at 1030. However, even other crimes evidence which is admissible under a specified exception must display probative value sufficient to outweigh any prejudicial effect. Burks, 1979 OK CR 10, ¶ 8, 594 P.2d at 773.

¶46 The State initially charged Myers with two counts of first degree Murder; the counts were severed, and the State proceeded against him first for the murder of Cindy Marzano. Prior to severance, the State provided Myers with notice that it intended to offer evidence of other crimes at trial. These notices showed the State’s intent to not only introduce evidence of Myers’s murder of Marzano, but also of his conversation with Patricia Curry, his prior assaults against Bonnie Makin Hames and Stacey Lane Fain, and the murder of Chink Elders for which he was never prosecuted. Prior to Myers’s trial, the trial court heard arguments on his Motion in Limine, and sustained the motion in part, specifically as it related to mention of the Marzano murder, and Myers’s prior assaults of Hames and Fain. In Proposition Eight, Myers claims the trial court erred by allowing the State to introduce evidence of other crimes and by refusing to grant a mistrial when references to other crimes were made in violation of the court’s ruling in the first stage of trial.

¶47 The trial court cautioned Sydney Byrd prior to his testimony that he should not make any statements indicating Myers killed more than one woman. However, during redirect examination, the prosecutor asked Byrd whether anyone else in the jail cell might have overheard Myers talking to him because of the level of their voices. Byrd responded, "Oh well, absolutely. He was telling me about raping and murdering these women, yeah. You get excited." Defense counsel objected and moved for a mistrial; the motion for mistrial was denied. The parties agreed the trial court would instruct the jury to "disregard the last question and answer of counsel and not consider it in your deliberations or in any other aspect."

¶48 Before the next witness (Patricia Curry) testified, defense counsel asked the trial court to prohibit her from testifying that Myers told her "you can get rid of women there." The trial court refused, stating it would be improper for her to "rewrite the words she is quoting as having been uttered by the defendant…" Thereafter, Curry testified Myers told her "he knew how to dispose of women," and when talking about Rocky Point said "you could dispose of women there."

¶49 Myers argues there was no reason for the trial court to allow Curry to reference plural "women" when previously finding Byrd should not. However, we see a clear difference – a difference noted by the trial court. Byrd’s objectionable testimony was an outburst and the words he spoke were his own. Curry was quoting Myers and she specifically testified about what he said to her. We find no error in the manner which the trial court handled the objections to these two witnesses’ references to plural victims. See Al-Mosawi v. State, 1996 OK CR 59, ¶ 59, 929 P.2d 270, 284 (a trial court’s admonition to jury to disregard the remarks of counsel or of a witness usually cures any error unless it is of such a nature, after considering the evidence, that the error appears to have determined the verdict). Further, Myers has not shown Byrd’s statement was verdict determinative.

¶50 Myers also argues Curry’s testimony was in violation of the trial court’s ruling limiting her testimony. The trial court ruled it would admonish Curry not to "address specifically the disposition of women’s bodies and how easy it was to dispose of them in sandy soil in Texas or east Texas." The trial court indicated it wanted to preclude her discussion of the disposal of "bodies in east Texas," but the trial court also acknowledged "the central relevance of her testimony has to do with the body of a woman at Rocky Point and the Rocky Point name. … and I think the State is entitled to get that in." We find Curry’s testimony that Myers said he "knew how to dispose of women" did not violate the trial court’s ruling in limine. Curry’s testimony about what Myers said directly related to the crime in question and was an admission by Myers directly relating to the crime in question. See Myers I, 2000 OK CR 25, ¶ 27, 17 P.3d at 1030.

¶51 Myers also argues Curry’s testimony that she felt threatened by Myers, felt her life was in jeopardy, and that she locked the door after he left was inadmissible evidence of other crimes. This testimony was relevant to show the witness’s state of mind and it helped explain to the jury why Curry was able to identify Myers several weeks later. This testimony was properly admitted and was not evidence of other crimes. 12 O.S.1991, § 2402.

¶52 Next, Myers complains chemist Mary Long injected other crimes evidence when she responded to a prosecutor’s question and mentioned the name Mark Marzano. The prosecutor asked her how two envelopes were labeled. She responded, "These two envelopes are labeled T98 Karl Myers. And the second one is labeled T108 Mark Marzano." Defense counsel objected and moved for a mistrial. The trial court sustained the objection, cautioned Long not to mention the name Marzano, and denied the motion for mistrial. The trial court and the parties agreed an admonishment would draw further attention to the matter and no admonishment was given. Myers submits Long’s mention of the name Marzano could have triggered certain jurors to remember details they might have read or heard concerning the Marzano trial.

¶53 We are not persuaded that the mere mention of the name Marzano was the equivalent of the admission of other crimes evidence. Myers’s argument is purely speculative and we find the trial court’s decision to caution the witness to avoid reference to the name a completely appropriate curative action and no further relief is required.

¶54 Lastly, Myers complains the prosecutor improperly referenced other crimes during opening statements and during closing argument. During opening statements, one prosecutor said, "we anticipate a witness will come in and testify that the defendant has made comments to her about disposal of bodies at this Rocky Point area." During closing argument, the prosecutor referred to Curry’s testimony that Myers said "you could get rid of women there" and argued the "veil of innocence" had been lifted. No objection was made to the prosecutors’ statements and our review is for plain error. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 695.

¶55 We find no plain error. Opening statements are intended to show the jury what evidence the parties intend to present and what the parties expect the evidence to prove, and to prepare jurors’ minds for the evidence that will be presented. Malicoat v. State, 2000 OK CR 1, ¶ 10, 992 P.2d 383, 394-395. The prosecutor’s reference in opening statement about what he anticipated a witness would testify to was proper comment. We address the veil of innocence argument more fully below.

PROSECUTORIAL MISCONDUCT

¶56 In Proposition Nine, Myers claims prosecutorial misconduct deprived him of a fair trial. During voir dire, the trial court overruled defense counsel’s objections to the prosecutor’s questions to prospective jurors to look at the jury instructions to see if the instruction on the State’s burden of proof used the language "beyond all doubt," "a shadow of a doubt," "all doubt," or "any doubt." Myers argues this Court has repeatedly criticized prosecutors’ attempts to define reasonable doubt and submits the trial court committed reversible error by failing to sustain the objections.

¶57 Here, the prosecutor’s use of the phrases "beyond all doubt," "a shadow of a doubt," "all doubt," or "any doubt" when emphasizing the jury should closely examine and consider the language of the jury instructions was not the equivalent of improperly defining reasonable doubt. It is not error for a prosecutor to tell jurors to focus on the language of the jury instructions. In this case, the prosecutor wanted the jury to consider what language the instructions did not contain in an attempt to dispel commonly held attitudes concerning the definition of reasonable doubt. Hammon v. State, 1995 OK CR 33, ¶ 83, 898 P.2d 1287, 1305.

¶58 Myers claims error occurred when the prosecutor argued "that veil of innocence has been removed from Karl Myers, that he sits there now as a guilty man …" Counsel did not object and we review this claim for plain error. Simpson, 1994 OK CR 40, 876 P.2d at 695.

¶59 It is error for a prosecutor to argue that the "cloak" of innocence has been stripped from a defendant. See Miller v. State, 1992 OK CR 77, ¶¶ 4-5, 843 P.2d 389, 390; Hamilton v. State, 1997 OK CR 14, ¶ 34, 937 P.2d 1001, 1010. We see no significant difference in the words cloak and "veil" as used in this case. However here, as in Hamilton, in light of the overwhelming evidence of guilt in this case, any error in the prosecutor’s argument was harmless beyond a reasonable doubt. Hamilton, id.; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

¶60 Last, Myers complains that the prosecutor improperly commented upon his failure to independently test the DNA evidence and such comments unconstitutionally shifted the burden of proof by misleading the jury into believing Myers was required to come forward with evidence. Defense counsel objected only once and the objection was sustained. The jury was not admonished. No objection was made to the prosecutor’s closing argument on this subject.

¶61 It is not improper for a prosecutor to comment on State’s evidence which is uncontroverted. Robinson v. State, 1995 OK CR 25, ¶¶ 21-22, 900 P.2d 389, 398. At trial, Myers contested the State’s handling and reliability of the DNA evidence throughout the trial. It was fair comment for the State to indicate and show Myers had access to the same samples and did not have them tested to contradict the reliability of the State’s DNA testing results. Cf. Pickens v. State, 2001 OK CR 3, ¶ 39, 19 P.3d 866, 880 (comments on the defendant’s access to evidence and witnesses is permissible).

¶62 Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect of the conduct deprived the defendant of a fair trial. Washington v. State, 1999 OK CR 22, ¶ 41, 989 P.2d 960, 974. Having reviewed each of the instances of alleged misconduct, we find only one amounts to misconduct and it does not warrant relief. Accordingly, this proposition of error is denied.

JURY INSTRUCTIONS

¶63 Myers claims in Proposition Ten that at the conclusion of the first stage of trial, the trial court erred when it administered Jury Instruction No. 2 (OUJI-CR 2d. 10-2) which states:

It is your responsibility as jurors to determine the facts from the evidence, to follow the rules of law as stated in these instructions, to reach a fair and impartial verdict of guilty or not guilty based upon the evidence, and to determine punishment if you should find the defendant guilty as you have sworn you would do. You must not use any method of chance in arriving at a verdict, but must base your verdict on the judgment of each juror.

Myers submits the language "to determine punishment if you should find the defendant guilty as you have sworn you would do" is misleading because in a bifurcated or death penalty trial, the issue of punishment is not before the jury at the conclusion of the first stage. Although Myers admits the jury was properly instructed in Jury Instruction No. 11 that the issue of punishment was "not before you at this time," he submits Jury Instruction No. 2 suggests the jury is sworn to find the defendant guilty. Relying upon Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), Myers argues the error constitutes a denial of due process and is reversible where there is a "reasonable likelihood" that the jury has applied the challenged instruction in an unconstitutional manner.

¶64 Defense counsel did not object to this uniform instruction at trial and our review is for plain error. Roberts v. State, 2001 OK CR 14, ¶ 7, 29 P.3d 583, 585. When there is no objection to an instruction at the trial court level and an appellant challenges an instruction as ambiguous, we look at whether the instructions, taken as a whole, properly advise the jury of the applicable law. See Thomas v. State, 1991 OK CR 58, ¶ 37, 811 P.2d 1337, 1346.

¶65 Here, the jury was properly instructed in Jury Instruction No. 11 that the issue of punishment was not before them at this time. In addition, the first stage instructions, as a whole, did not address the issue of punishment. Further, even utilizing the "reasonable likelihood" standard set forth in Boyde, we find the jury was properly instructed on the elements of the crime and the State’s burden of proof in the first stage of trial, and the instructions taken as a whole were not confusing or ambiguous.

¶66 However, even though we find no plain error, we are convinced by Myers’s argument that the uniform jury instruction, OUJI-CR 2d. 10-2, requires some modification. Accordingly, we prospectively modify OUJI-CR 2d. 10-2 to read:

It is your responsibility as jurors to determine the facts from the evidence, to follow the rules of law as stated in these instructions, to reach a fair and impartial verdict of guilty or not guilty based upon the evidence,[and to determine punishment if you should find the defendant guilty,] as you have sworn you would do. You must not use any method of chance in arriving at a verdict, but must base your verdict on the judgment of each juror.

The Notes on Use following OUJI-CR 2d. 10-1 shall also be amended to indicate the bracketed material in the modified OUJI-CR 2d. 10-2 instruction shall only be used in non-bifurcated trials.

 INEFFECTIVE ASSISTANCE OF COUNSEL

¶67 In his twentieth proposition of error, Myers claims his trial counsel’s performance was constitutionally ineffective, because trial counsel "failed to investigate and present evidence so important" that the guilt and sentencing verdicts are unreliable. Simultaneously with the filing of his Brief in Chief, counsel for Myers filed an Application for Evidentiary Hearing on Sixth Amendment Claims, pursuant to Rule 3.11(B)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001). Myers argues his claim of ineffective assistance of trial counsel is supported by matters outside the appeal record and urges this Court to remand for an evidentiary hearing to develop facts relating to his claim. Attached to the Application for Evidentiary Hearing are Affidavits offered to meet the burden set forth in Rule 3.11(B)(3)(b) that "the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective." Rule 3.11.

¶68 Myers argues his counsel’s trial investigation was inadequate in two areas: impeachment evidence relating to Sydney Byrd and mitigation evidence. In support of his Application for Evidentiary Hearing, counsel for Myers has filed her own Affidavit and Affidavits of Kristin Brown, Barry Rouw, and John Struchtemeyer. (Exhibits 1-4, respectively).

¶69 The Affidavits of Kristin Brown, and Barry Rouw suggest that Byrd was or could have been suffering from some psychiatric disorder and was or could have been medicated at the time he claims Myers confessed to him. Further, appellate counsel argues his Byrd’s prior criminal records would have revealed his propensity to distort reality or lie. Appellate counsel argues the Affidavits show a probability that trial counsel was ineffective for not obtaining and presenting evidence that would have severely undermined Byrd’s credibility.

¶70 Appellate counsel also argues trial counsel’s performance fell below objective standards because he did not obtain Myers’s school records and use them as mitigation evidence. Counsel argues the school records would have confirmed Myers’s sister’s testimony about Myers’s very bad childhood and would have also corroborated Dr. Murphy’s testimony that Myers suffered from mental deficits. Counsel argues "[I]n sum, Mr. Myers’ school records would have dispelled any doubts about the accuracy of the pictures painted by Ms. Robitaille and Dr. Murphy."

¶71 Analysis of a claim of ineffective assistance of counsel begins with the presumption that trial counsel was competent to provide the guiding hand the accused needed, and therefore the burden is on the accused to demonstrate both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-part test to be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel’s performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction . . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S.Ct. 2064. Appellant must demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 689, 104 S.Ct. at 2065-66.

¶72 Here, the record shows trial counsel thoroughly and successfully attacked Byrd’s credibility and exposed his motive to fabricate to the jury. Further, the evidence contained in the elementary school records which trial counsel did not discover or utilize was arguably cumulative to the testimony of Dr. Murphy and Appellant’s sister.

¶73 Review of the Application and the supporting Affidavits show trial counsel certainly could have obtained and utilized this evidence for trial. However, it does not show by "clear and convincing evidence" a strong possibility that trial counsel was ineffective for failing to identify or utilize this evidence. Accordingly, we decline to grant the Application for Evidentiary Hearing and relief is denied on Proposition Twenty.

SECOND STAGE ISSUES

¶79 In Proposition Fifteen, Myers contends the trial court’s refusal to give the requested instruction on mitigation improperly conveyed the judge’s personal opinion and deprived him of a fair penalty determination. During the second stage of trial, Layne Davison, Myers’s case manager at the Oklahoma State Penitentiary (OSP), testified concerning his behavior while in prison. He evaluated Myers’s behavior as good; he had no trouble with other inmates and had no disciplinary problems. Defense counsel requested the following instruction relating to the "continuing threat" aggravator: "Karl Lee Myers functions well in the secure environment of prison, has not misbehaved, gives no trouble to other inmates or staff, and would not be a continuing threat to others in a prison setting." The State objected to the last clause of the requested instruction, beginning with the word "staff"⁶ on the ground that the objectionable language "would invade the province of the jury to make a conclusion whether or not that evidence presented would amount to – that he is not a continuing threat to society." Defense counsel did not object to omitting the language.

¶83 This Court addressed this issue in Myers I.⁷ Myers was prosecuted in that case for the murder of Cindy Marzano. Sharp’s testimony in this case was virtually identical to that given in the Marzano case.

¶88 Myers argues the "especially heinous, atrocious, or cruel" aggravator is unconstitutionally vague and overbroad as applied and on its face. We have already determined this aggravator cannot stand in this case and its constitutionality need not be addressed.⁸

¶93 Here, neither the admission of autopsy diagrams and photographs of Marzano nor Mark Marzano’s testimony was more prejudicial than probative.⁹ The circumstances surrounding Marzano’s disappearance and details of her injuries were relevant and admissible to show Myers constituted a continuing threat. Id.

¶102 This Court previously denied requests of counsel to consolidate this appeal with PCD 2002-978 on November 5, 2003 and June 23, 2004. See Myers v. State, PCD 2002-978 and PCD 2002-258 (Okl.Cr. November 5, 2003)(not for publication) and Myers v. State, PCD 2002-978 (Okl.Cr. June 23, 2004)(not for publication). An additional remand for an evidentiary hearing and/or jury determination on Myers’s claim of mental retardation in this appeal is not warranted because a jury has already determined Myers is not mentally retarded, and this Court has affirmed that verdict on appeal. Smith v. State, 2002 OK CR 2, ¶ 7, 46 P.3d 136, 137 (when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot be relitigated between the same parties in any future lawsuit). Accordingly, no relief is warranted on Proposition Sixteen as the issue has previously been decided and the Motion to file Notice of Extra-Record Evidence Supporting Appellant’s Proposition of Error Regarding Execution of the Mentally Retarded is therefore DENIED. A jury has determined Myers is not mentally retarded, and we affirmed that finding on appeal. Myers, 2005 OK CR 22, ¶ 11, -- P.3d ---.

ACCUMULATION OF ERROR

¶103 In his final proposition of error, Myers asks this Court to review the aggregate impact of the errors in his case in addition to reviewing them individually. Where there is no error, there can be no accumulation of error; however, "when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial." Smith v. State, 1996 OK CR 50, ¶ 62, 932 P.2d 521, 538. While in this case we have found a few irregularities during the course of the trial, even taken together, these irregularities are not so great as to have denied Myers a fundamentally fair trial. After reviewing the errors in the aggregate, we find they were harmless beyond a reasonable doubt and no relief is warranted.

MANDATORY SENTENCE REVIEW

¶114 Although the mitigating evidence was uncontroverted, it was not overly compelling or unusually persuasive.¹⁰ The evidence supporting the aggravating circumstances was strong. Upon reweighing the remaining valid aggravating circumstances against the mitigating evidence, we find the aggravating circumstances outweighed the mitigating evidence and supported the death sentence. Had the jury considered only these valid aggravating circumstances, we find beyond a reasonable doubt the jury would have imposed the same sentence of death.

¹ The State originally charged Appellant with two (2) counts of First Degree Murder. (O.R. 1-3, 37-40) The trial court later severed the charges. Count II was tried separately to a jury in 1998 and the jury set punishment at death. We affirmed Appellant’s conviction and sentence of death in that case. See Myers v. State, 17 P.3d 1021, 2000 OK CR 25(hereafter referred to as Myers I).

² Myers filed his Petition in Error on September 6, 2000. On August 8, 2001, Myers filed his Brief in Chief, an Application for Evidentiary Hearing on Sixth Amendment Claims, and Notice of Extra Record Evidence Supporting Appellant’s Proposition of Error Referencing the Execution of the Mentally Retarded. The State filed its Answer on December 6, 2001, and Myers filed a Reply Brief on December 26, 2001. Oral argument was held on June 4, 2003. The parties filed Supplemental Authorities on May 31, 2002 and June 14, 2002. Appellant also filed a Motion for Leave to Present Supplemental Brief Regarding New Authority on Issues Previously Raised and a Supplemental Brief Regarding New Authority on July 3, 2002. That Motion is hereby GRANTED. Myers also filed a subsequent Application for Post-Conviction Relief in Myers I (PCD 2002-978), therein raising a claim substantially the same as that raised in the Supplemental Brief filed July 3, 2002. This Court denied requests of counsel to consolidate this appeal with PCD 2002-978 for purposes of deciding that issue and held the Opinion in this case in abeyance pending resolution of the issue in PCD 2002-978. See Myers v. State, 2005 OK CR 22, ¶ 8, -- P.3d -- .

³ Chemist Mary Long estimated the probability/match in this case was one in four billion Caucasians on the five genetic loci examined.

⁴ To accommodate Dr. Eisenberg’s schedule, he was called as a witness during a break in Long’s testimony.

⁵ Myers argues it was improper to allow Eisenberg to vouch for the credibility of Long and the lab when Long "had not even testified." The record shows Eisenberg was called as a witness, out of order, just after Long had begun to testify. The record does not show the defense objected to Eisenberg testifying out of order; rather, the only objection went to his testimony as being irrelevant or cumulative.

⁶ Although Myers claims the State objected to the "last clause" of the requested instruction, review of the trial transcript shows the State did not "object to anything preceding the word staff." (emphasis added).

⁷ See n. 1.

⁸ We have repeatedly upheld the constitutionality of this aggravator. See Black v. State, 2001 OK CR 5, ¶ 77, 21 P.3d 1047, 1073 and cases cited therein.

⁹ We note Mark Marzano did not "detail" the effects Cindy Marzano’s murder had on their children. In fact, review of his testimony shows he only testified they had four children and gave their ages.

¹⁰ The jury was instructed in Instruction No. 38 that Myers had introduced evidence of the following mitigating circumstances: (1) Myers suffers from a low I.Q.; (2) Myers suffers from brain damage; (3) Before suffering a severe automobile accident as a small child which left him in a coma for a period of time, Myers was a normal, outgoing child; (4) As a child and adolescent, Myers was subjected to extensive emotional, psychological, and physical abuse at the hands of various father figures; (5) In school, Myers was ostracized, ridiculed, and emotionally and physically abused by other students and teachers because of his low intellectual functioning; (6) Myers has been a loving brother to his sister, Hazel Robitaille, and her family, helping out whenever he could; (7) Hazel Robitaille, Myers’s sister, loves him and would continue to contact him if he is sentenced to spend the rest of his life in prison. Myers life has meaning to his sister; (8) If not executed and sentenced to life imprisonment without the possibility of parole, Myers will spend the rest of his life in custody; (9) Myers functions well in the secure environment of prison, has not misbehaved, gives no trouble to other inmates. This instruction also advised the jurors that "in addition, you may decide that other mitigating circumstances exist, and if so, you should consider those circumstances as well."

O P I N I O N

LILE, JUDGE:

[17 P.3d 1026]

¶1 Karl Lee Myers was convicted, by jury, of Murder in the First Degree (21 O.S.1991, § 701.7) in the District Court of Rogers County, Case No. CF-96-233, before the Honorable Dynda Post, District Judge. After the sentencing stage, the jury found the existence of four aggravating circumstances: the murder was especially heinous, atrocious, or cruel; the Defendant was previously convicted of a felony involving the use or threat of violence; the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and set punishment at death. 21 O.S.1991, § 701.12(1), (4), (5) & (7). The trial court entered Judgment and Sentence in accordance with the jury's verdict. From this Judgment and Sentence, Myers has perfected his appeal.

FACTS

¶2 The victim, Cindy Marzano, and Appellant were acquaintances. She left home for work on March 14, 1996, bearing no bruises or wounds on her face or head. She drove her 1984 silver Chevrolet Impala to work for her 1:00 p.m. to 9:00 p.m. shift. While at work she spoke to Appellant twice between 7:00 p.m. and 8:00 p.m. and was overheard agreeing to meet Appellant after work. She checked out at 9:09 p.m. and was seen thereafter at Denny's restaurant where she and a man remained about thirty (30) minutes.

¶3 At 11:51 p.m., Appellant was at a convenience store, where he had been a regular customer, and remained two to two and one-half hours. He washed his truck while there and told the clerk he had been at a relative's house. At 12:30 a.m., Cindy Marzano was found floating face down in the water at the Highway 33 Landing on the navigation channel near the Port of Catoosa. Her blouse and bra were pulled up and she had bruises on her forehead, upper left arm and neck. She had cuts on her face and an abrasion between her shoulder blades. She had bruises on her right thigh and left leg. These injuries were suffered prior to death. Asphyxiation was determined to be the cause of death. DNA testing established that spermatozoa found in her vagina matched Appellant's DNA.

¶4 Appellant first denied that he had seen the victim that night. He finally admitted talking to the victim that night at her work. He said they agreed to meet at Denny's for coffee, and he was home by 11:45 p.m. He denied any physical contact with the victim. He later admitted to having consensual sex with the victim that night.

¶5 Inmate Sidney Byrd testified that Appellant admitted killing two women, and further admitted that (concerning Cindy Marzano) "he was fucking her from behind when he strangled her and she died."

JURY SELECTION ISSUES

¶6 In Proposition I, Appellant complains that the trial court improperly refused to excuse prospective juror, Janice Irene Riggs, on the grounds that she was unable to consider all three punishment options: life, life without parole, and death. We said in Humphries v. State, 1997 OK CR 59, ¶ 3, 947 P.2d 565, 570-71:

¶7 The Court first inquired of prospective Juror Riggs whether she could consider all three of the legal punishments to which the prospective Juror replied, "Yes, ma'am." When examined by Appellant's trial counsel the prospective Juror stated that the death sentence "was not always appropriate" in circumstances of first degree murder although she opined it was "more of the time" as opposed to less of the time. Although at one time the prospective Juror stated that if somebody is charged with killing somebody and guilt is proved that he should be put to death, she later explained: "I will say it again, in most instances, yes." Under further examination by Appellant's trial counsel, the prospective Juror stated that she would "more than likely" vote for the death sentence, but that she would consider life or life without parole. At this point, Appellant's trial counsel moved to excuse the juror for cause. The court further examined the juror at which time the juror responded that "I could certainly weigh all three" and that by weigh she meant consider. Appellant's trial counsel asked numerous further questions on different issues and ultimately passed prospective Juror Riggs for cause.

¶8 It is clear that this prospective juror was willing to consider all three possible punishments for First Degree Murder, and the trial court properly refused to excuse her for cause. Humphries, 1997 OK CR 59, ¶ 3, 947 P.2d at 570.

¶9 Further, apparently even Appellant's trial counsel believed the juror to be legally qualified after Judge Post's follow up questioning because he ultimately passed the juror for cause. The right to challenge any juror for cause is a statutory right which may be waived by the defendant. Plantz v. State, 1994 OK CR 33, ¶ 24, 876 P.2d 268, 277, cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995).

¶10 Thereafter, but prior to the jury being sworn, Appellant renewed his objection to prospective Juror Riggs, even though he had previously excused her by peremptory, and stated that he would have used his last peremptory challenge to excuse Mr. Smith if Ms. Riggs had been excused for cause by the court. In the interim, Appellant had passed for cause prospective jurors, Mr. Smith and Ms. Bunt.1

¶11 We have held:

Ross v. State, 1986 OK CR 49, ¶ 11, 717 P.2d 117, 120 (citations omitted), aff'd sub nom, Ross v. Oklahoma, 487 U.S. 81, 83-84, 108 S.Ct. 2273, 2276, 101 L.Ed.2d 80, 87 (1988). In affirming Ross v. State, the U.S. Supreme Court said:

Ross, 487 U.S. at 83-84, 108 S.Ct. at 2276. The Supreme Court further stated,

Ross, 487 U.S. at 86, 108 S.Ct. at 2277, 101 L.Ed.2d at 88.2

¶12 We have examined the entire record on voir dire and we find nothing to indicate that Mr. Smith, or any of the jurors who ultimately decided the case, were not impartial.

FIRST STAGE ISSUES

¶13 Myers claims that evidence of other "unrelated" crimes deprived him of a fair trial. The State filed an extensive Notice of Intent to offer evidence of other crimes, seeking to offer evidence that:

The trial court found that the evidence was relevant to Appellant's motive and intent to kill the victim in this case and further found that the crimes were sufficiently similar to establish a common scheme or plan.

¶16 Despite our prior cases to the contrary, "the enumerated permissible purposes for which other crimes, wrongs, or acts evidence may be admitted under [12 O.S.1991, § 2404(B)] of the [Oklahoma Evidence] Code are not exclusive." 2 Leo H. Whinery, Oklahoma Evidence, 354 (1994).3 The literal language of Section 2404(B) - "It may, [17 P.3d 1029] however, be admissible for other purposes, such as . . . ." - clearly indicates more exceptions than those listed in the statute. Whinery, supra.

¶17 This Court has stated on more than one occasion that "consistent with the prevailing view . . . the five enumerated exceptions in Section 2404(B) of the Oklahoma Evidence Code were not intended to be exclusive or exhaustive." Anderson v. State, 1999 OK CR 44, ¶ 12, 992 P.2d 409, 415, cert. denied, ___ U.S. ___, 121 S.Ct. 124, ___ L.Ed.2d ___ (2000); quoting Gideon v. State, 1986 OK CR 112, ¶ 11, 721 P.2d 1336, 1338; Rhodes v. State, 1985 OK CR 16, ¶ 9, 695 P.2d 861, 863.

¶18 In State v. Plaster, 424 N.W.2d 226 (Iowa 1988), the Court allowed evidence of a defendant's sexual assault on a woman other than the prosecutrix. The court, examining Rule 404(b) of the Iowa Rules of Evidence, reasoned that the exceptions listed in the rule are not exclusive. Id. at 228. The Court stated that the

Id. at 229 (citations omitted). A consequential fact in the Plaster case was whether the victim consented to sexual intercourse. The evidence of the other similar sexual abuse showed the likelihood that there was no consent. The evidence of the prior sexual conduct also showed the same peculiar and characteristic behavior pattern manifested in the crime charged. This conduct made it more probable that there was no consent.

¶19 Appellant, in one of his statements, claimed that he had consensual sex with Marzano. However, similarities between the two prior acts and the present case, make it more probable that Marzano did not consent to sexual intercourse with Appellant. Further, there are striking similarities between the assaults which are probative of motive, intent, and common scheme or plan. In all three instances Appellant was acquainted with the victim; the victims were lured into automobiles; all of the victims were forcefully and sexually assaulted; the assailant threatened to kill the first two victims and did kill the third.

¶20 Another reason for admission was to show Appellant's motive for murder. Having received a stiff prison sentence following the Hames assault, and having been investigated following the Fain assault, although he avoided criminal charges, presents a sufficient factual basis to support the submission of the evidence to the jury as proof of motive for and as proof of intent in the instant case. The jury may well have determined that Appellant intended to kill Cindy Marzano in order to avoid punishment and investigation similar to what he endured after the other assaults.

¶21 Several states have adopted a "greater latitude" approach to the admission of other crimes evidence in sex crimes cases. See State v. Davidson, 613 N.W.2d 606, 617 n.12 (Wis. 2000). The Federal Rules of Evidence have also been expanded to include a provision for the introduction, in sexual assault cases, of "evidence of the defendant's commission of another offense or offenses of sexual assault . . . for its bearing on any matter to which it is relevant." Fed. R. Evid. 413.

¶22 In keeping with this "greater latitude" for introduction, the court in State v. Davidson allowed the introduction of a sexual assault on a girl which had occurred ten years prior to the charged offense, also a sexual assault on a young girl. There were just as many differences in the assaults as there were similarities. However the court, following a "greater latitude rule," determined that the evidence was relevant to show motive, as well as common plan or scheme. Davidson, 613 N.W.2d at 620-21.

¶23 Wisconsin's rules of evidence are substantially similar to our own. Wisconsin has a "long-standing principle that in sexual assault cases . . . courts permit a 'greater latitude of proof as to other like occurrences.'" Davidson, 613 N.W.2d at 615 (citations omitted). However, before admission, the other crimes evidence must conform to certain [17 P.3d 1030] rules such as: (1) whether the evidence is introduced for a proper purpose, Wis. Stat. § (rule) 904.04(2) [same as Title 12 O.S.1991, § 2404(b)]; (2) whether the evidence is relevant pursuant to rule 904.01, and (3) whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion, or delay under rule 904.03. Davidson, 613 N.W.2d at 614-15.

¶24 Our holding today brings our interpretation of Title 12 O.S.1991, § 2404(B), in line with the clear language that the exceptions are not exclusive. The trial court acted properly within its discretion in determining that evidence of the Hames and Fain assaults were probative and admissible. The evidence was properly admitted under current Oklahoma law. Further, the evidence would be admissible under the "greater latitude rule" recognized today for cases involving sexual assaults.

¶25 Appellant claims that the procedural safeguards were not followed. Appellant correctly states that the following procedural safeguards protect Appellant from the admission of unduly prejudicial evidence of other crimes: (1) the evidence must be offered for a proper purpose under § 2404; (2) the evidence must be relevant under § 2402) (3) the probative value of the evidence must outweigh its prejudicial value under § 2403; and (4) if requested, a limiting instruction on the proper use of the evidence must be given. Blakely v. State, 1992 OK CR 70, ¶ 10, 841 P.2d 1156, 1158-59.

¶26 Appellant incorrectly argues that he was denied these safeguards. The trial court carefully and fully considered all of these safeguards, as shown by the record and the trial court's exclusion of evidence of the murder of Shawn Marie Williams. The trial court abuses its discretion when its decision is "a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application." Stevens v. State, 94 Okl.Cr. 216, 225, 232 P.2d 949, 959 (1951). We do not find an abuse of discretion here.

¶27 Appellant also complains that the witness, Patricia Curry, testified that in July of 1996 Appellant told her that "you could dispose of women very easily" either in the soft sand in east Texas or at Rocky Point (located a short distance from the location of Cindy Marzano's body) and that the testimony constituted "other crimes evidence." In fact, this testimony related to the crime in question and not to other crimes as far as the jury was concerned (the trial court had excluded evidence of the murder of Shawn Marie Williams who in fact was found at Rocky Point). The evidence was admissible as an admission by Appellant directly relating to the murder of Marzano.

¶28 In Proposition IV, Appellant complains for the first time on appeal that his "statutory rights were violated when the state elicited improper opinion testimony" from the medical examiner. The question now complained of was stated by the prosecutor as follows: "Question: Okay. Doctor, from your observations during the viewing, autopsy, and investigation, were you able to draw any conclusion as to or develop any opinion that would suggest that this individual was raped?" Appellant did not object to the question nor to any of the testimony that followed. As we said in Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693, "failure to object with specificity to errors alleged to have occurred at trial, thus giving the trial court an opportunity to cure the error during the course of trial, waives that error for appellate review . . . ." We are left then to review for plain error only, i.e. errors "which go to the foundation of the case, or which take from a defendant a right which was essential to his defense." Simpson, 1994 OK CR 40, ¶ 12, 876 P.2d at 695.

¶29 Although invited by the prosecutor to give a medical opinion as to whether the victim was raped, he wisely declined, which may well explain the failure of Appellant to object to the answers that followed. The witness stated that there were things present suggestive of rape, and after thorough cross-examination, the same witness conceded, "There are aspects to the case that can support the idea that sexual intercourse was not rape." When asked by defense counsel if there was anything scientifically [17 P.3d 1031] conclusive, one way or the other, the witness stated, "Absolutely not."

¶30 The witness's medical opinion regarding whether rape occurred was that there was no scientific evidence either way; an answer helpful to Appellant. When asked about observable evidence suggestive of rape or consent, he found both (i.e., the victim's upper clothing was pulled up to expose her breasts; her lower clothing was completely intact; sperm was found in her vagina; she had multiple bruising indicative of a struggle, but no vaginal area injuries).

¶33 A review of the photographs complained of in the case reveals that neither evidence of decomposition, nor autopsy are depicted. State's exhibit 56, 57, and 58 show a frontal facial view, the left side of the face, and the right side of the face, respectively. Each photo depicts contusions or lacerations not shown in the other photographs. State's exhibit 60 shows a large abrasion on the victim's left upper arm. State's exhibit 61 shows the back of the right arm, including the elbow and forearm, revealing an abrasion and a scratch. State's exhibit 62 shows a contusion and an abrasion to the left elbow. State's exhibit 63 shows lacerations or scratches on the victim's back. State's exhibit 64 shows a patterned contusion on the left side of the abdomen. State's exhibit 66 shows a side view of the upper left leg and reveals a contusion. State's exhibit 67 shows a contusion on the back of the victim's left hand. State's exhibit 68 shows the petechiae, including a very large one, in the left eyeball of the victim, which was consistent with the cause of death being asphyxiation. State's exhibit 69 shows the back of the left upper arm of the victim revealing an area of contusion and abrasion.

[17 P.3d 1032]

Peninger, 1991 OK CR 60, ¶ 7, 811 P.2d at 611. Further,

Peninger, 1991 OK CR 60, ¶ 9, 811 P.2d at 611.

¶34 Each photograph shows a different injury. The photographs are not unduly gruesome, nor prejudicial. Each photograph confirmed the doctor's testimony concerning observed injuries to the victim. The photographs displayed for the jury the exact location of and size and extent of the injuries that the doctor had described in his oral testimony, both confirming and more accurately delineating the various injuries suffered by the victim.

¶35 The photographs complained of here were clearly relevant; they were not unduly gruesome nor prejudicial and were properly admitted into evidence.

¶36 Appellant complains that exhibit 68 was "particularly prejudicial" in that it shows the victim's eye held open by tweezers to show the inside of her eyelid and the outside portion of her eyeball. This photograph shows a very large petechiae which was consistent with death by asphyxiation. This sterile, clinical photograph was relevant in this case because of its importance to the conclusion of death by asphyxiation and was properly admitted. Fairchild v. State, 1999 OK CR 49, ¶¶ 70-71, 998 P.2d 611, 626.

¶37 Appellant also complains that the State was allowed to project, and thus enlarge, the photographs onto a screen during the testimony of the medical examiner. The witness referred to each enlargement, as it was displayed, describing the injuries shown on each. It would have been impossible for the entire jury panel to view the 31/2 by 5 inch photographs during the actual testimony. This reasonable demonstrative aid, designed to allow all the jurors to see the exact extent of injuries as they were described by the expert witness, was entirely proper under the circumstances of this case.

¶38 In Proposition III, Myers challenges the sufficiency of the evidence supporting his murder conviction. Myers was charged with killing Cindy Marzano with malice aforethought and alternatively with killing her during the commission of a rape (felony murder).

¶39 In Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204, adopting the test established by Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979), we established the test for evaluating sufficiency of the evidence as "[w]hether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Credibility of witnesses and the weight to be given their testimony is within the exclusive province of the jury. Renfro v. State, 1980 OK CR 6, ¶ 12, 607 P.2d 703, 706. Further, we accept all reasonable inferences and credibility choices which tend to support the jury's verdict. Washington v. State, 1986 OK CR 176, ¶ 8, 729 P.2d 509, 510.4

¶42 Bonnie Makin-Hames, sister to a friend of Appellant, was offered a ride, then taken to a rural area by Appellant and forcefully and sexually assaulted. Appellant threatened her life. Appellant went to prison as a result of the victim's complaint.

¶43 Stacey Fain, who lived in Appellant's home, was offered a ride to go to Wal-Mart and instead was taken to a rural area and sexually assaulted. Her life was also threatened by Appellant. Appellant was investigated but no criminal charges were filed.

¶44 Patricia Curry testified that shortly after the Marzano murder, Appellant bragged that women were easily disposed of at Rocky Point (near where the victim was found).

¶45 We find that all of the evidence, taken in the light most favorable to the State, supports the jury's verdict.

SECOND STAGE ISSUES

¶48 Myers was returned to the courtroom after the lunch recess on the second day of the sentencing stage of his trial. Approximately two jurors, coming back from lunch and passing through the courtroom on their way to the jury room, saw Appellant as his handcuffs were being removed.

¶49 In determining whether the error was harmless we examine: (1) whether the encounter was intentional; (2) whether the evidence against the accused was overwhelming; (3) whether the accused waived any error; and (4) whether the prejudicial viewing occurred in the courtroom. Lowery v. State, 1977 OK CR 167, ¶ 13, 563 P.2d 1189, 1192.

[17 P.3d 1034]

¶50 In this case, it is clear that the correctional officer's actions in bringing a handcuffed Myers into the courtroom were unintentional. He had no reason to believe that any jurors would be present at that time and he was not acting in conscious disregard of Myers' rights or out of a motive to prejudice Myers. Further, the evidence against Appellant, in the punishment stage of the proceeding was indeed overwhelming. Appellant made a timely objection and did not waive any error. Although the error occurred in the courtroom, it occurred during the lunch break and court was not in session.

¶51 This case is very similar, factually, to Snyder v. State, 1987 OK CR 121, 738 P.2d 548. In Snyder, the jailer brought the defendant into the courtroom in handcuffs and a juror who had returned early from lunch viewed the event. We said that "an unintentional viewing by members of the jury of a handcuffed defendant while the jury is not impaneled in the jury box is harmless error where there is no showing that the defendant suffered prejudice thereby." Snyder, 1987 OK CR 121, ¶ 6, 738 P.2d at 580.

¶52 Appellant's claim that the trial court prevented an examination of the jurors involved to determine what was seen is not supported by the record. Appellant never requested that any jurors be examined concerning the incident. We find any error to be harmless beyond a reasonable doubt.

¶53 In Proposition VII, Myers complains that his constitutional rights were violated by the improper admission of testimony from State's witness Charles Sharp, Sheriff of Cherokee County, Kansas, during the second stage of trial. Sharp testified that Myers had confessed that he had murdered Chink Enders in 1979. The sheriff testified that he obtained the confession after he promised Myers immunity from prosecution.

¶54 Appellant first claims that the promise of immunity from prosecution for the murder of Chink Enders prevented the use of the confession, as evidence of an aggravating circumstance, during the second stage proceedings of this trial. In the alternative, Appellant claims that the confession, made under the promise of immunity, was a coerced confession, thus was inadmissible in this proceeding.

¶55 A confession made under the promise of immunity cannot be considered a voluntary confession.

Brady v. United States, 90 S.Ct. 1463, 1471-72, 397 U.S. 742, 754, 25 L.Ed.2d 747 (1970), quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897); see also, Malloy v. Hogan, 84 S.Ct. 1489, 1493, 378 U.S. 1, 7, 12 L.Ed.2d 653 (1964). This Court has stated that "[A] confession made or induced by promise of reward or benefit . . . would be deemed involuntary, and would not be admissible." Ex parte Ellis, 1963 OK CR 62, ¶ 18, 383 P.2d 706, 709.

¶56 Whether Sheriff Sharp had the authority to grant immunity is not the question here. The issue is whether the promise of immunity was used to obtain the confession. Obviously, this was the result, even though Sharp did not believe that Appellant committed the murder at the time of the promise of immunity.

¶57 Clearly, the confession would not have been admissible in a criminal trial against Appellant for the murder of Chink Enders. Similarly, the confession is not admissible during the second stage of a capital murder trial as evidence of an aggravating circumstance. Pickens v. State, 1996 OK CR 6, ¶ 12, 910 P.2d 1063, 1068.

¶58 Finding error in the introduction of this confession, we must determine whether the error was prejudicial to Appellant. This error is of constitutional magnitude. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967); Wisdom v. State, 1996 OK CR 22, ¶ 31, 918 P.2d 384, 393; see also Hain v. State, 1996 OK CR 26, ¶ 38, 919 P.2d 1130, 1141-1142, cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1997) (an error, albeit constitutional, is subject to a harmless [17 P.3d 1035] error analysis because it was an error in the trial process itself, and not a defect affecting the entire framework of the trial); see also Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991)(a majority of Justices hold that harmless error analysis applies to coerced confessions). The burden rests with the State to demonstrate beyond a reasonable doubt that the illegally obtained statement did not contribute to the sentence of death. Pickens v. State, 1994 OK CR 74, ¶ 7, 885 P.2d 678, 682, overruled in part on other grounds, Parker v. State, 1996 OK CR 19, ¶ 23, 917 P.2d 980, 986.

¶59 This confession was part of the evidence used to prove the continuing threat aggravating circumstance. Along with this confession, the State also presented evidence that Appellant had been convicted of a prior assault with intent to rape, had killed Shawn Marie Williams subsequent to the present crime, and had previously been charged with feloniously possessing a firearm. Even without this confession, there was more than sufficient evidence to support the continuing threat aggravating circumstance. In light of the overwhelming evidence in support of this aggravating circumstance, we find the introduction of the confession was harmless beyond a reasonable doubt, because when viewed in light of all the evidence presented in aggravation, there is no reasonable probability the error contributed to the imposition of the death penalty. See Bryson v. State, 876 P.2d 240, 256-57 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).

2 The majority relies on State v. Davidson, 613 N.W.2d 606 (Wis. 2000), a case confirming Wisconsin's longstanding exception granting greater latitude in other crimes evidence to cases involving sexual assault of a child. A substantial minority of states grants some form of latitude for evidence of other crimes in sexual offense cases. Of these, the majority focus on sex crimes against children. Several states allow this evidence in any sexual offense case to explain motive and intent by showing previous propensity for sexual offenses, or on the general principle that such offenses should have liberal standards of proof. See, e.g., State v. Roscoe, 910 P.2d 635, 642 (Ariz. 1996) (bad acts involving sexual aberration admissible to show propensity); Bixler v. State, 537 N.E.2d 21, 23 (Ind. 1989) ("depraved sexual instinct"); State v. Frazier, 344 N.C. 611, 476 S.E.2d 297, 300 (1996) (court gives liberal allowance of similar offenses in sex crimes cases); State v. Tobin, 602 A.2d 528, 531 (R.I.1992) ("lewd disposition or intent").

3 Slip op. at 11.

4 The State may introduce evidence that the defendant has committed similar acts against different victims at different times if the circumstances show a system or plan characterized by a peculiar method of operation. See, e.g., Eberhart v. State, 727 P.2d 1374, 1479 (Okl.Cr.1986); Little v. State, 725 P.2d 606, 607 (Okl.Cr.1986); Driver v. State, 634 P.2d 760, 762 (Okl.Cr.1981); Lambert v. State, 609 P.2d 785, 787 (Okl.Cr.1980); Turnbow v. State, 451 P.2d 387, 390 (Okl.Cr.1969).

5 Miller v. State, 1998 OK CR 59, 977 P.2d 1099, 1107, cert. denied, ___ U.S. ___, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999).

6 20 O.S.1991, § 3001.1.