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PHILLIPS & ASSOCIATES Oklahoma Criminal Defense Attorneys

Housekeeper Charged with First Degree Rape

September 22nd, 2014

A Cyril mother’s gut instinct and clever deception led to the arrest of a 31-year-old housekeeper accused of raping the mother’s 13-year-old son.

Around 11:30 p.m. last Monday night, the mother called police to report that Robbie Elaine Capshew had molested her son. She reported that when she at the home where Capshew was working, she saw the housekeeper coming out of the bathroom and her son trying to leave the house.

She felt that something was amiss, so she asked her son what was going on. When the boy didn’t respond, she told him that there was a hidden camera in the house and urged him to tell the truth. When she asked the boy what the video would reveal, the boy allegedly said that it would show him having sex with the housekeeper.

There was no hidden camera and no video, but the boy’s admission was enough for the mother to call police.

The boy allegedly told police that Capshew had called him into a bathroom earlier that night and asked him to perform a sex act with her. He says he complied, but then left to go to his own home to get something to drink. When he returned to the home where the woman was working, he says she called him into a bedroom, where she took off her pants, asked him to do the same, and the two began having sex. The boy says that he soon told the woman, “I can’t,” and tried to leave the house. That’s when his mother walked in, having nearly caught the two in the act.

Police went to Capshew’s home to investigate, but she refused to discuss the matter with investigators–a wise move to protect her right to silence. She was arrested and booked into the Caddo County jail, where she is held on $35,000 bond. She is being appointed a public defender.

In Oklahoma, sexual contact with a minor under the age of 16 is prosecuted as lewd acts with a minor. It is a felony sex crime punishable by 3 to 20 years in prison, unless the victim is aged 12 or younger. In that case, it carries a minimum sentence of 25 years in prison.

Sexual intercourse with a minor under the age of 16 can be charged as either first degree rape or second degree rape, depending on the age of the victim. While sex between and adult and a willing minor aged 14 or 15 is prosecuted as second degree rape, or statutory rape, sex with a minor aged 13 or younger is always prosecuted as first degree rape. First degree rape carries a maximum sentence of life in prison.

Rape and lewd or indecent proposals or acts to a child under 16 are both Level 3 sex offenses which mandate lifetime sex offender registration upon conviction.

Yet Another Oklahoma Law Officer Arrested for Sexual Assault

September 18th, 2014

When it rains, it pours.

A Tulsa County Sheriff’s Deputy is the third recent Oklahoma law enforcement officer to be arrested on complaints of on-duty sexual assault.

On August 21, Oklahoma City police officer Daniel Holtzclaw was arrested for allegedly raping and sexually assaulting women during traffic stops in the department’s Springlake division. He has been charged with multiple crimes, including first degree rape, forcible sodomy, sexual battery, indecent exposure, burglary, and stalking.

On Monday, Oklahoma Highway Patrol Trooper Eric Roberts was arrested in Creek County after an investigation following a rape complaint lodged against the trooper in July. The OHP says they believe Roberts sexually assaulted at least three women, raping two of them.

Now, a Tulsa County Sheriff’s Office deputy has resigned after being arrested Tuesday on complaints of sexual battery and indecent exposure. Gerald Nuckolls, 26, was arrested Tuesday evening after a woman called earlier that morning to report a sexual assault.

The woman said that a uniformed deputy arrived at her apartment at approximately 4:00 a.m., saying he was there to investigate a 9-1-1 hang-up call. The deputy allegedly required a second woman at the apartment to get into his patrol vehicle. That woman told investigators that the uniformed officer threatened to take her boyfriend to jail unless she touched his genitals.

The women say that the deputy then went back to the apartment to search for drugs, where he assaulted the first woman, pulling down her dress and then exposing himself to her. News reports say the deputy told the woman he would be back “to check on her” when his shift ended, but instead, the woman called to report the assaults.

Nuckolls allegedly admitted to “meeting” women at traffic stops or calls, exchanging nude or sexually explicit photos with them, and engaging in sexual contact.

He was placed on administrative leave, arrested, and jailed on $65,000 bond. He resigned the following morning.

If these accusations are true, this rash of sexual assaults by on-duty Oklahoma law enforcement agents is despicable. Such officers are abusing the badge and their authority as well as violating an oath and duty to protect the public welfare. They are behaving exactly as the criminals from whom they are supposed to be protecting us, and using fear and intimidation to do so.

When a police officer, sheriff’s deputy, or highway patrol trooper is corrupt, abusive, and criminal, it destroys the trust many people have in law enforcement, and it reinforces the beliefs of those who already distrust the law. This mistrust makes it more difficult for true peace officers to perform their duties as public servants.

Appropriate Discipline or Child Abuse?

September 15th, 2014

Former University of Oklahoma Sooners running back Adrian Peterson was arrested for child abuse after admitting to disciplining his 4-year-old son with a switch. The Minnesota Vikings suspended Peterson for one game after learning of his arrest, but the team has since re-instated the player, saying that they feel it is in the best interest of the organization to let the judicial process run its course:

“To be clear, we take very seriously any matter that involves the welfare of a child. At this time, however, we believe this is a matter of due process and we should allow the legal system to proceed so we can come to the most effective conclusions and then determine the appropriate course of action. This is a difficult path to navigate, and our focus is on doing the right thing. Currently we believe we are at a juncture where the most appropriate next step is to allow the judicial process to move forward.

We will continue to monitor the situation closely and support Adrian’s fulfillment of his legal responsibilities throughout this process.”

The team and the NFL are in a tight spot currently, as the league is under investigation for its handling of another domestic violence case–former Baltimore Ravens running back Ray Rice, who was terminated from the team and indefinitely suspended from the league after delivering a knockout punch to his then-fiance in an elevator.

Initially, Rice was suspended for two games, but after video of the incident became public, NFL Commissioner Roger Goodell quickly began to back pedal and appease public opinion by suspending the player “indefinitely.”

The NFL’s own comment about the Peterson case was succinct: “His case will be reviewed under the league’s Personal Conduct Policy, including with the assistance of our new special advisor Lisa Friel.”

The case has some people wondering–why does punching a grown woman rank an indefinite suspension, but striking a preschooler rate only a one-game suspension?

The difference lies in both intent and the law. By all accounts, Peterson was simply using a traditional method of discipline–one that had been used on him as a child–and had no intention of harming his child. Under Texas law, it is permissible to use “reasonable discipline” in guiding or punishing one’s child. Oklahoma, similarly, allows “ordinary force” in discipline, and state law says such force includes, but is not limited to “spanking, switching, or paddling.”

Regardless of one’s opinion of spanking or other corporal punishment, it is important to remember what the law says about these acts. You may believe that spanking is okay. You may believe that spanking is a form of child abuse. The law, however, specifically states that spanking, when used with “ordinary force,” is not child abuse.

Keep in mind, though, that “ordinary force” typically refers to spanking that does not leave any physical injuries, such as bruising, cuts, and lasting welts. It is virtually impossible to “switch” a child–or strike the buttocks or backs of the legs with a long, slender branch–without leaving a mark.

In determining whether to file charges against Peterson, the district attorney’s office reviewed images of the child’s injuries and determined that, regardless of the father’s intent, the switching of the child exceeded reasonable discipline.

Presumption of Guilt: The Consequences of False Rape Claims

September 11th, 2014

A former softball coach and teacher once charged with rape and sexual battery pleaded no contest to a misdemeanor this week. The felony sex crime charges against Tyler Lee Patterson, 27, were dismissed after the man’s accuser recanted the majority of her statement against him.

Patterson pleaded no contest to a single count of Acts Resulting in Gross Injury, a misdemeanor that encompasses crimes such as public indecency and outraging public morals. A “no contest” plea is not an admission of guilt; rather it is an acknowledgment that evidence would likely lead to conviction. It allows the defendant to skip the time and expense of a trial he or she would likely lose while still denying guilt.

But for the former Westville High School teacher and coach, the recanted testimony and dismissed charges may be too little too late.

In September 2013, Patterson resigned from his position with Westville Public Schools after police began an investigation into allegations of an inappropriate relationship with a 16-year-old student.

The girl and her mother told police that the teen and the teacher had been talking over Facebook, and the girl said that she and her teacher had sex “around ten times.”

Although a 16-year-old has reached the age of consent in Oklahoma, the state’s statutory rape laws prevent people under custody or supervision of certain entities from consenting to sex with employees of those entities. Students under the age of 20 cannot legally consent to sex with any employee aged 18 or older of the same district or school system.

After the girl’s accusations, Patterson resigned from his teaching position and the Oklahoma Department of Education revoked his teaching license. He was jailed and forced to endure the costs of  bail, attorneys, fees, and other court costs. His reputation was tarnished, and even now, after the charges against him were dropped, an internet search of his name turns up the initial rape and sexual  battery charge first, with the dismissal and the no-contest misdemeanor plea buried beneath the more scintillating headlines.

Reports say that Patterson admitted to having an “inappropriate relationship” with the student. That does not mean that he had an illegal relationship with the girl, which the dismissal of second degree rape and sexual battery charges indicates.

Perhaps a professional relationship became too friendly. A teacher who doesn’t know appropriate boundaries likely should find another profession; however, he or she doesn’t deserve to be presumed guilty of a crime and treated as a sex offender without due process.

In any story, there is more than meets the eye. While the public may jump to conclusions–or be led to conclusions by media reports and gossip–in the eyes of the law, the presumption of innocence must prevail.

Child Abuse by Injury

September 10th, 2014

Another successful outcome this week for one of our clients. Unlike many of the cases we handle in Oklahoma which are dismissed, this one went to jury trial. Our client was found Not guilty of child abuse by injury in Pottawatomie County court.

Drunk Woman Accused of Molesting Relative

September 8th, 2014

If it weren’t for alcohol, criminal defense attorneys would have a lot fewer clients. When under the influence of drugs or alcohol, people tend to have lowered inhibitions, decreased judgment, and a lack of impulse control. For some people, that combination causes life-changing decisions.

A Canadian County woman is finding out just how horribly her life has gone astray after she was arrested and charged with child neglect and child sexual abuse.

Investigators say 40-year-old Alethea Montgomery of Piedmont was the caretaker of an 11-year-old relative. However, rather than taking care of the boy, deputies say she neglected him and, in a drunken stupor, sexually assaulted him.

The boy said that Montgomery was heavily intoxicated when she asked him to lie down beside her. She exposed her breasts and tried to get him to touch her, but he said, “No, no, no!” and ran to hide behind a curtain. Rather than giving up, the boy says, Montgomery tried to pursue him. He ran outside for help.

When police responded to the scene, they found Montgomery so inebriated that they were unable to question her until another day. They also found squalid living conditions, including trash, feces, and beer cans covering the floor and a refrigerator empty except for water, beer, and spoiled milk. The boy allegedly told investigators that he hadn’t eaten or bathed in weeks.

When police were finally able to question Montgomery, she told them that she didn’t remember anything about the alleged incident, which is likely true if she was as intoxicated as reports say. She did say,  however, that the boy was “not a liar,” and that if she had done anything to him, she did so in her sleep. She later said, “I believe him, I believe him, I’m just sick to my stomach.”

Montgomery is charged in Canadian County District Court with one count of child neglect in violation of 21 O.S. 843.5(c) and one count of child sexual abuse in violation of 21 O.S. 843.5(e).

She is held on $50,000 bond. Montgomery is represented by a public defender, and her preliminary hearing conference is scheduled for September 17.

Child neglect is defined in 10A O.S. § 1-1-105 as follows:

“Neglect” means:

a. the failure or omission to provide any of the following:

(1) adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education,

(2) medical, dental, or behavioral health care,

(3) supervision or appropriate caretakers, or

(4) special care made necessary by the physical or mental condition of the child,

b. the failure or omission to protect a child from exposure to any of the following:

(1) the use, possession, sale, or manufacture of illegal drugs,

(2) illegal activities, or

(3) sexual acts or materials that are not age- appropriate, or

c. abandonment.

Depending on the severity of the offense, child neglect is punishable by a maximum of life in prison. Likewise, child sexual abuse is punishable by a maximum life sentence.

Foster Parents Charged in Child Abuse Death

September 4th, 2014

After a 3-year-old boy died of head trauma, his foster parents have been arrested on child abuse and murder complaints.

Reports say that Mallory Krajian, 25, of Broken Arrow brought the child to the hospital with significant head injuries, but was unable to adequately explain how the injuries occurred. She told investigators that she was in another room helping another child to get ready for the day, and the 3-year-old and his 6-year-old brother were in another room. Krajian said that the boy fell off of a couch and struck his head on the floor or an object near the couch. She allegedly told police that the older boy gave several versions of how the child was injured, and said he could have harmed the boy.

The 3-year-old suffered a skull fracture, neck fracture, subdural hematoma, epidural hematoma, and bilateral retinal hemorrhages, or “blown pupils.”

Police say evidence including the layout of the home and the severity of the boy’s injuries is inconsistent with Krajian’s explanation.

During the child’s stay in the hospital, despite surgery to alleviate brain bleeds, his condition worsened and he lapsed into a coma. He was taken off life support on Sunday and died shortly thereafter.

Upon his death, Mallory Krajian was arrested on a child abuse murder complaint. The two other children in the home were taken into protective custody.

Mallory Krajian’s husband Peter, 44, was also arrested on a child abuse complaint related to evidence uncovered during an investigation. Police noticed that a 4-year-old girl had a significant bald spot and asked her about it. The girl told investigators that her foster father had pulled her hair out.

Mallory Krajian’s sister allegedly told investigators that all three children regularly had bruising and bald spots, and that their foster mother explained to her that the bald spots were the result of hair loss from Post-Traumatic Stress Disorder (PTSD).

Mallory Krajian is charged in Tulsa County District Court with child abuse murder in violation of 21 O.S. § 701.7. Child abuse resulting in death is first degree murder under § 701.7(C):

“A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 843.5 of this title. It is sufficient for the crime of murder in the first degree that the person either willfully tortured or used unreasonable force upon the child or maliciously injured or maimed the child.”

Her husband, Peter, is charged with child abuse by injury in violation of 21 O.S. § 843.5(A).

Both Krajians face the possibility of life in prison if convicted.


Understanding Repeat DUI

September 1st, 2014

Holiday weekends tend to see an increase in DUI arrests, and this Labor Day weekend, which is also the opening of college football season, is no exception. In fact, as the weekend began, a former Oklahoma senator was arrested for a DUI-related complaint for the third time in a year.

Cal Hobson, who is currently running for public office in a bid for Cleveland County Commissioner, was arrested in Lexington at approximately 8:30 Saturday morning. He was arrested on a complaint of being in actual physical control of a vehicle (APC) while under the influence of alcohol.

Unlike DUI, an APC charge does not require that the person is actually driving a vehicle while under the influence of an intoxicating substance. If an intoxicated or impaired person has “actual physical control” of a vehicle–for example, sitting in the driver’s seat of a parked vehicle with access to the keys–he or she may be charged with APC. Although he or she does not have to be driving to have an alcohol-related charge, the penalties for APC are the same as those for DUI.

Hobson was charged with a misdemeanor DUI offense in 2013, and just a few months ago, he was charged with aggravated DUI and with attempting to bribe an officer to let him off the hook.

Repeat DUI offenses are common, and typically, it is not because those with prior DUI convictions were not punished harshly enough to deter them from drinking and driving in the future. In most cases, repeat DUI offenders are not flagrantly trying to defy law; rather, they are saddled with an addiction that remains untreated.

Certainly, there are those for whom a DUI is a one-time mistake. These people may have had a few drinks and thought they were still okay to drive, or they may have had way too many and suffered from impaired judgment. For people who are not troubled by alcoholism, the punishment of a DUI conviction and its associated penalties may be enough to keep them from drinking and driving again.

For alcoholics and those plagued with addiction, no penalties are severe enough to conquer their demons and deter them from drinking and driving. Mothers Against Drunk Driving (MADD) cites the Centers for Disease Control and Prevention (CDC) in reporting that, on average, a person has driven drunk 80 times prior to his or her first DUI arrest. The National Highway Traffic Safety Administration (NHTSA) reports that approximately one-third of all people arrested for DUI have at least one prior DUI convictions–more than 30 percent are repeat DUI offenders. Additionally, 1 in 8 drivers in fatal DUI accidents have had a prior DUI conviction within the previous three years.

So how do we combat DUI recidivism? Longer jail terms? Stiffer fines? Lengthier license suspension?

Harsher penalties may have some effect on combating DUI, but in all likelihood, these punishments will do little to nothing to curb repeat DUI. Repeat offenders are often fueled by an addiction that compels them to drink and drive despite the penalties they face. Without treating the underlying problem of alcohol or drug addiction, DUI penalties can bring no lasting change.

Tulsa Man Sentenced for Amended Rape Charge

August 28th, 2014

A man initially charged with first degree rape and kidnapping pleaded guilty to amended charges and was sentenced in Tulsa County District Court this week.

Jerry Tyrone Leblanc, 60, was arrested in December 2013 after a 15-year-old girl told police that the man forced her at gunpoint into his vehicle and drove her to a hotel, where he made her drink alcohol before raping her. Leblanc was charged with first degree rape, kidnapping, and possession of a firearm in the commission of a felony.

Things are not always as they seem, though. As the judicial process continued, more evidence came to light which Assistant District Attorney Nick Codding said required prosecutors to amend the charges. Codding would not reveal the information that prompted the change, citing the victim’s age and the nature of the charges.

The state dismissed the firearm possession charge and the kidnapping charge. The first degree rape charge was amended to second degree rape, and prosecutors added a charge of furnishing alcohol to a minor.

Leblanc pleaded guilty to the two remaining charges: statutory rape and furnishing alcohol to a minor.

Second degree rape is punishable by 1 to 15 years in prison (21 O.S. § 1116), and furnishing alcohol to a minor is a felony punishable by a maximum of 5 years in prison (37 O.S. § 538).

In this case, Judge William Musseman sentenced the defendant to 4-1/2 years in prison on each count, with the sentences to run concurrently. These sentences are also to run concurrently with two felony DUI convictions. Leblanc, who has multiple DUI arrests on his record, was given a deferred sentence for one DUI in 2011 and a suspended sentence for another. Because of his arrest, prosecutors filed a motion to accelerate the deferred sentence and a motion to revoke the suspended sentence. All sentences are to run concurrently, and the defendant is given credit for time served.

Because of his second degree rape conviction, the man will be required to register as a sex offender for the rest of his life.

The case is another demonstration of what happens when people jump to conclusions about allegations of a sex crime. Traditional knowledge holds that children don’t lie about rape, but in this case, evidence was strong enough to demonstrate that the accuser did lie. While she is still considered a victim of rape, as the details of the incident were revealed, prosecutors learned that there was no kidnapping, and that the girl was not forcibly raped through force, fear, or use of alcohol to as a means of forcing submission.

Before rendering judgment, the court requires evidence and proof of the allegations. The court of public opinion, however, far too often renders judgment without any facts at all.


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PHILLIPS & ASSOCIATES Oklahoma Criminal Defense Attorneys