
    2016 OK CR 5
    Jermaine JACKSON, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2014-627.
    Court of Criminal Appeals of Oklahoma.
    March 15, 2016.
    
      David Phillips, Assistant Public Defender, Tulsa, OK, attorney for defendant at trial.
    Julie Doss, Assistant District Attorney, Tulsa, OK, attorney for the State at trial. Richard Couch, Assistant Public Defender, Tulsa, OK, attorney for appellant on appeal.
    E. Scott Pruitt, Oklahoma 'Attorney General, Jennifer B. Welch, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal. t
   OPINION

HUDSON, Judge.

T1 Appellant Jermaine Jackson was tried by jury in the District Court of Tulsa County, Case No. CF-2012-4007, and convicted of two counts of First Degree Malice Aforethought Murder, in violation of 21 00.98.2011, § T7OL7(A) The jury assessed punishment at life imprisonment with the possibility of parole for both counts, The Honorable William Musseman, District Judge, pronounced judgment and sentence accordingly and ordered that the sentences be served consecutively. Jackson now appeals raising the following issues:

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY INCLUDING WITHIN THE DEFINITION AND EXPLANATION OF MALICE AFORETHOUGHT IN JURY INSTRUCTION NO. 81 THE LAST PARAGRAPH OF INSTRUCTION NO. 4-62, OUJI-CR(2d) WHICH INSTRUCTED ON TRANSFERRED INTENT; and
IL THE APPELLANT WAS DE'PRIVED OF EFFECTIVE ASsIG-TANCE OF TRIAL COUNSEL.

T2 After thorough consideration of these propositions, and the entire record before us on appeal, including the original record, tran-seripts, exhibits and bmefs of the parties, we AFFIRM the J udgment and Sentence,

~I.

'T 3 Appellant contends the trial court committed plain error when it instgucted the jury on the doctrine of transferred intent with regard to his Count II charge of malice murder. . Appellant asserts the | State failed to specify in the Informatlon that Appellant's intent to. kill Mr. White could transfer to the killing of Mr. Thorsson, As a result, Appellant argues he was unfairly convicted in Count II based on the "un-charged theory of transferred intent" without proper notice.

14 Appellant failed to object to 6i-ther the: sufflclency of the Information or the court's instructions to the jury. Appellant has therefore waived on appeal all but plain error review. See Short v. State, 1999 OK CR 15, ¶ 48, 980 P.2d 1081, 1098 {instructional error claim reviewed for plain error only as no objection was raised -at trial); Conover v. State, 1997 OK CR 6, ¶ 10, 933 P.2d 904, 909 (sufficiency of the Information challenge reviewed for plain error only as defendant failed to object to the Information at trial). "To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the exis> tence of an actual error (i.6., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." . Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d. 392, 395. "If these elements are met, this Court will correct plain error only if the error. 'seriously affect[s] the fairness, integrity or public.-reputation of the judicial proceedings'. or otherwise represents a (miscarriage of justice'" Id. (quoting Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923).

$5 The erux of Appellant's allegation hinges on his contention that the transferred intent doctrine is an alternative theory of first degree murder that must be specifically charged. To assess the sufficiency of an Information the following two-pronged test is utilized: "(1) whether the defendant was in fact misled by it, and (2) whether conviction under it would expose the defendant to the possibility of being put in jeopardy a second time for the same offense." Fields v. State, 1996 OK CR 35, ¶ 25, 923 P.2d 624, 629 (citing Lambert v. State; 1994 OK CR 79, ¶ 44, 888 P.2d 494, 504). An Information need not list every element of the charged offense. Fields, 1996 OK CR 35, 26, 928 P.2d at 629. The question is rather whether the Information provided the defendant with notice of the crimes charged and apprised him of what he must defend against at trial, Id.; Van White v. State, 1999 OK CR 10, ¶ 13, 990 P.2d 253, 261.

T6 In support of his claim of insufficient notice, Appellant cites to Lambert v, State, 1994 OK CR 79, ¶¶ 44-45, 888 P.2d 494, 504, where this Court found reversible error occurred when the jury was instructed on. felony murder despite the State's failure to specifically charge Lambert in the alternative with felony murder. The case herein is distinguishable from Lambert, as transferred intent is not an alternative legal theory of guilt-such as first degree malice murder and felony murder as provided in 21 0.8. 2011, § 701.7, The doctrine. of transferred intent provides:

[Wihen one. person acts Wlth intent to harm another person, but because of a bad aim he instead harms a third person who . he did not intend to harm, the law considers him just as guilty as if he had actually harmed the intended victim.

Short, 1999 OK CR 15, ¶ 44, 980 P.2d at 1098 (citing W.LaFave & A. Scott, Criminal Low, § 3.12(d) (2nd ed,1986)). The transferred intent doctrine directly relates to the relevant mens rea element of the charged offense. Application of the transferred intent doctrine does not create a new and different crime. Rather, the transferred intent doctrine provides an alternative factual theory with the same legal basis, i.e., Appellant either directly intended to kill Thorsson or his intent to kill White transferred to Thorsson. Cf. Slaughter v. State, 1997 OK CR 78, ¶ 63, 950 P.2d 839, 857 (aiding and abetting is an alternative factual theory versus a different legal theory of guilt); Rounds v. State, 1984 OK CR 49, ¶ 20, 679 P.2d 283, 287 (charging Information need not specifically allege that the defendant aided and abetted the offense).

T7 In Bradshaw v. Richey, the United States Supreme Court found it doubtful that the principle of fair notice had any application to a case of transferred intent, "where the defendant's contemplated conduct was exactly what the relevant statute forbade." Bradshaw v. Richey, 546 U.S. 74, 76-77, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) (emphasis in original). +~Looking to the relevant mens rea provision for the crime of aggravated murder in Ohio, the Court found Ohio's law provided adequate notice of the applicability of transferred intent, Id. at T7, 126 §S.Ct at 604. The statutorily established mens rea provision for the offense required proof that the defendant "intended to cause the death of another." Id. (emphasis in original). The Court found "[tlhere was no reason to read 'another' (countertextually) as meaning only 'the actual victim, since the doctrine of transferred intent was "firmly rooted in Ohio law'" Id. Thus, the Court concluded the respondent in Bradshaw "could not plausibly claim unfair surprise that the doctrine applied in his case." Id.

T8 The doctrine of transferred intent is likewise firmly rooted in Oklahoma case law. See Short, 1999 OK CR 15, ¶ 44, 980 P.2d at 1098. Moreover, similar to the mens rea provision examined in Bradshaw, the relevant mens rea provision of first degree malice murder in Oklahoma requires only that the State prove the accused had the deliberate intention of taking away the life of another "human being. 21 O.S.2011, § 701.7(A). Thus, the plain language of § 701,.7(A) contemplates application of the doctrine of transferred intent as it requires the State prove only that the defendant was intending to cause the death of another human being. As determined in Bradshaw, there is no reason to read § T7O1.7(A) countertextually as restricting the relevant mens rea to "the actual victim". . Consequently, the Information as filed with regard to Count II in the present case was sufficient to notify Appellant of the erime charged and the applicability of the transferred intent doctrine.

19 Additionally, Appellant has failed to demonstrate he was in fact misled-to his detriment-by the Information. See Fields, 1996 OK CR 35, ¶ 25, 923 P.2d at 629; Lambert, 1994 OK CR 79, ¶ 44, 888 P.2d at 504. An audiotape of Appellant's statement to police was properly admitted into evidence and played for the jury. Appellant's subsequent testimony during trial mirrored his pretrial statement to Tulsa police. Under these circumstances, Appellant cannot claim prejudice resulted from his decision to testify, Moreover, testifying that he acted in self-defense is not an admission of the necessary mens rea element of malice murder, i.e., that he acted with the deliberate intention of "unlawfully" taking away the life of another human being,. See 21 O.S.2011, $ 701.7(A). Thus, unlike what occurred in Lambert, 1994 OK CR 79, ¶ 44, 888 P.2d at 504, Appellant's testimony did not guarantee his conviction on Count IL

T10 The record further demonstrates defense counsel was not surprised by the application of the transferred intent doctrine. Defense counsel's lack of 'surprise is evidenced in a discussion had between the parties regarding which lesser included offense instructions should be provided in relation to Count 2.

11 In light of the foregoing, Appellant's claim that he was unfairly convicted in Count II based on the "un-charged theory of transferred intent" without proper notice is without merit. The Information contained the essential elements of the crimes charged and was sufficient to bar future prosecution for those offenses. Application of the transferred intent doctrine diréctly related to the relevant mens rea element of Appellant's Count 2 charge of malice murder. The application of the doctrine did not create a new and different crime. Moreover, Appellant has failed to demonstrate that he was misled-to his detriment-by the Information. Based on the cireumstances of this case as well as the record, Appellant cannot "plausibly claim unfair surprise that the doctrine applied in his case." Bradshaw, 546 U.S. at T7, 126 S8.Ct. at 604. The trial court did not commit plain error by instructing the jury on the doctrine of transferred intent.

' 12 This proposition of error is denied.

'TIL.

'T13 'Appellant argues that his trial counsel was ineffective for failing to object to the transferred intent instruction for the reasons set forth in his first proposition of error. To prevail on an ineffective assistance of counsel claim, the defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). .As discussed in Proposition I, the transferred intent instruction was proper under the facts and cireumstances of this case. Thus, trial counsel was not ineffective for failing to make a meritless objection, Logan v. State, 2013 OK CR 2, ¶ 11, 298 P.3d 969, 975 ("The omission of a meritless claim, i.6., a claim that was destined to lose, cannot constitute deficient performance; nor can it have been prejudicial.")." Thus, this proposition of error is denied.

DECISION

{14 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 8.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED Issued upon dehvery and filing of this dec151on

SMITH, P.J., LUMPKIN, V.P.J., JOHNSON and LEWIS, JJ.; concur, 
      
      . With regard to Count II, Appellant was charged with alternative theories of First Degree Murder-malice murder or felony murder in violation of 21 0.$.2011, § 701.7(A) and (B) In addition to malice and felony murder, the jury was also instructed on Manslaughter, in the First Degree, Murder in the Second Degree by Imami-nently Dangerous Conduct and Felony Murder— Second Degree. : 6A
     
      
      , Appellant must serve at least 85% of his sentences before parole el1g1b1hty 21 0.8.2011, '§ 13.1(1). °
     
      
      . The definition of murder in the first degree refers to the "death of another human being"; the definition of malice uses the phrase "take away the life of a human being". 21 0.5.2011, § 701.7(A). Whether "human being" or "another human being", the interpretation of the relevant mens rea-malice-is the same.
     