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Lewallen v. State - 2016 OK CR 4, 370 P.3d 828

Rule:

Pursuant to Okla. Stat. tit. 21, § 843.5(A) and (C) (2011), child abuse and child neglect are separate and distinct criminal offenses. Simply, each offense is defined differently. By definition, both child abuse and child neglect include a failure to protect component. However, the protection component of child neglect is strictly limited to protecting a child from exposure to drugs, illegal activities or sexual acts. Okla. Stat. tit. 21, § 843.5(C) (2011); Okla. Stat. tit. 10A, § 1-1-105(47) (Supp. 2012). Hence, while some instances of child neglect could amount to child abuse, not every case of neglect is encompassed within child abuse. Indeed, in light of the definitional restrictions set forth in § 1-1-105(47), it is a stretch to say that even a bare majority of the instances of child abuse would amount to child neglect or vice versa. Thus, the Oklahoma Legislature clearly intended to create two separate criminal offenses. Lumping the two offenses together with regard to Okla. Stat. tit. 57, § 571 (2011) ignores the distinct delineation between the two offenses.

Facts:

Defendant William Todd Lewallen was tried by jury in Oklahoma state court and convicted of child neglect, after former conviction of two or more felonies. The jury assessed punishment at 23 years' imprisonment. Lewallen appealed asserting, among other things, that the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies.

Issue:

Did the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies?

Answer:

Yes.

Conclusion:

The appellate court held that the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies because, pursuant to Okla. Stat. tit. 21, § 843.5(A)(C), child abuse and child neglect were separate and distinct offenses. The proper range of punishment was therefore 4 years to life. Nevertheless, the evidence was sufficient to convict Lewallen for child neglect and he was not denied a fair trial based upon the admission of an expert opinion. Thus, the court affirmed Lewallen's conviction but vacated the sentence and remanded the matter to the district court for resentencing.

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