* Honorable Ted Stewart, District Judge, United State s District Court for the

District of Utah, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 23 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRETT ASHLEY WEBBER,

Petitioner-Appellant,

v. H. N. SCOTT, sued as: H. N. “Sonny” Scott, Defendant-Appellee. No. 02-5204

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 98-CV-984-K)

David Autry, Oklahoma City, Oklahoma, for Petitione r-Appellant. William R. Holmes, Assistant Attorney General (W. A . Drew Edmondson, Attorney General, with him on the briefs), OklahomaCity, Oklahoma, for Defendant-Appellee.

Before BRISCOE , MURPHY , Circuit Judges, and STEWART , * District Judge.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Following a jury trial, appellant Brett Ashley Webb er was convicted of sexually abusing a minor child (Count 1), first deg ree rape (Count 2), forcible sodomy (Counts 3, 7, 10, 11, 13, and 14), lewd mole station (Counts 4, 5, 6, 12, 16, 20, 22, 24, 25, 26, and 27), attempted rape (Co unt 15), sodomy (Counts 17 and 18), sexual battery (Count 19), and attempted l ewd molestation (Counts 21 and 23). On direct appeal, the Oklahoma Court of C riminal Appeals (“OCCA”) reversed the convictions on Counts 1-3, primarily b ecause it concluded the appointment of a child advocate to represent the in terests of a minor child was improper under the applicable Oklahoma statute. Webber v. State , No. F-95-778 (Okla. Crim. App. June 20, 1997) (unpublished). Th e OCCA held that the error was harmless as to the overall guilt determination on the other counts of conviction, but nevertheless modified the sentences for those counts. Id. In addition, the OCCA concluded Webber could not be re tried on Count 1 because the statute of limitations had expired prior to the first prosecution. Id. Webber sought federal habeas corpus relief under 28 U.S.C. § 2254 in the United States District Court for the Northern Distr ict of Oklahoma, arguing that (1) he was denied his Fourteenth Amendment due proc ess rights to a fair trial because of prejudicial joinder of Counts 1-18 with Counts 19-27; (2) the participation of a child advocate deprived him of h is Fourteenth Amendment due-3-

process rights to a fair trial; (3) the evidence wa s insufficient to support convictions in Counts 19-27 such that he was depriv ed of his Fourteenth Amendment due process rights; and (4) the admissionof other crimes evidence and the trial court’s limiting instruction relating to the other crimes evidence violated his Fourteenth Amendment due process right s to a fair trial. Webber v.
Scott , No. 98-CV-984-K(C), at 3-4 (N.D. Okla. Oct. 31, 2 002) (unpublished). The district court denied Webber’s petition, conclu ding that (1) Webber’s trial was not rendered fundamentally unfair by the joinde r of charges; (2) any error resulting from the participation of the child advoc ate was harmless; (3) the OCCA’s ruling on the sufficiency of the evidence wa s not contrary to, or an unreasonable application of, clearly established fe deral law or an unreasonable determination of the facts; and (4) the admission o f other crimes evidence and the trial court’s limiting instruction did not result i n a fundamentally unfair trial. Id. at 9, 14-15, 19, 22. Webber filed a timely appeal arguing that the district court erred in denying his habeas petition. The district court granted Webber’s request for a c ertificate of appealability on Webber’s claim that the participation of the chi ld advocate violated his Fourteenth Amendment right to due process. In an o rder dated October 22, 2003, this court granted Webber’s request for an expandedcertificate of appealability-4-

on the remaining three issues. Exercising jurisdic tion pursuant to 28 U.S.C. §§ 1291 and 2253, this court affirms the denial of Webber’s § 2254 petition.
II. BACKGROUND Webber was convicted by a jury of sexually abusing a minor child, first degree rape, forcible sodomy, lewd molestation, att empted rape, sodomy, sexual battery, and attempted lewd molestation. Webber v. State , No. F-95-778 (Okla. Crim. App. June 20, 1997) (unpublished). Webber worked as a teacher, coach, and counselor atBishop Kelley High School in Tulsa, Oklahoma. Allegations of sexual m isconduct on the part of Webber began to surface in the spring of 1992. As a result of the allegations, Webber was terminated from his job at Bishop Kelleyin October, 1993. On June 6-16, 1995, Webber was tried in Tulsa County District Court on 27 counts of sexual misconduct involving seven differe nt victims, each of whom testified at trial. The case was prosecuted by Ass istant District Attorneys John Priddy and Eric Stall. Webber was represented by P atrick Malloy, III and Paul Brunton. In addition, Assistant Public Defender Vi cki Sousa served as a child advocate for one of the victims, D.B. At the time, a child advocate was required1 Only Count 1, Sexual Abuse of a Minor Child, was br ought under section

843. Thus, a child advocate appeared on behalf of only the victim associated with that count, D.B. Counts 2-3 were also associated w ith D.B. Webber v. Scott , No. 98-CV-984-K(C), at 2 n.1 (N.D. Okla. Oct. 31, 2002)

. -5- by Oklahoma law to be appointed to represent the in terests of child victims for cases filed under Okla. Stat. tit. 21, § 843. 1 Okla. Stat. tit. 21, § 846(B) (1991). The trial testimony centered around the victims. W ith regard to Counts 1-3, D.B. testified to various acts of sexual molestatio n, that included being forced to perform oral sex on Webber in December 1990, Webberperforming oral sex on D.B., and Webber having anal sex with D.B. in July 1991. Counts 4-18 involved the sexual molestation of T.F., who testified that in June 1990 Webber wrestled with him, pinned him to the mat, and looked down hi s shorts. T.F. also described several incidents of Webber fondling his penis and performing oral sex on him in the spring of 1991. In addition, T.F. recounted tw o sexual encounters with Webber over spring break of 1991, one of which incl uded attempted anal sex. T.F. also described Webber performing oral sex on T .F. in Webber’s counseling office at Bishop Kelley. Counts 19-27 involved the sexual molestation of fou r other male students. J.M. (Count 19) testified that Webber gave him a “f rontward snuggie” which involved grabbing inside J.M.’s boxer shorts betwee n his navel and genital area. Counts 20-21 involved Z.G. who testified that Webbe r gave Z.G. a ride home-6-

after a basketball game and at some point during th e drive, reached over and grabbed Z.G.’s boxer shorts. Z.G. also described asecond incident a few weeks later when Webber attempted to grab Z.G.’s boxer sh orts, but Z.G. repeatedly slapped Webber’s hand away. S.H. (Counts 22-24) te stified to a wrestling incident with Webber that involved Webber grabbing S.H.’s boxer shorts and Webber’s hand touching S.H.’s pubic hairs. In addi tion, S.H. recounted that Webber gave S.H. a ride home and Webber attempted t o place his hand on S.H.’s genital area. The final incident described by S.H. occurred in the school locker room and involved Webber pulling S.H.’s boxer short s away from his body and looking at S.H.’s penis. M.H. (Count 25) testifiedthat in September 1993 while in Webber’s counseling office, Webber grabbed M.H.’ s boxer shorts and touched M.H.’s penis. K.E. (Counts 26-27) testified to two incidents in the fall of 1993 when Webber untucked K.E.’s shirt and grabbed K.E.’ s boxers. In his defense, Webber offered numerous character w itnesses, including former players and students, members of his church, and his father. Webber denied all of the allegations. Vicki Sousa filed her entry of appearance on behalf of D.B. on October 25, 1994. Sousa was present but did not participate inthe preliminary hearing. Sousa argued in support of a Motion to Quash brought by L anny Endicott, D.B.’s counselor, claiming any communications between the two were privileged. Sousa-7-

also opposed the defense Motion to Compel Psychiatr ic Examination of D.B. and T.F. Sousa was present and participated in voir di re. Throughout voir dire and the trial Sousa sat at a table separate from the de fense and the prosecution. Sousa herself objected to the trial court judge limiting her participation in the trial. At trial Sousa questioned ten of the sixteen witnesses for the state and eight of the eighteen witnesses for the defense. Sousa was admo nished by the trial judge not to ask leading questions. Although Sousa questione d a number of witnesses, in the context of the ten-day trial her questioning wa s minimal. Much of her questioning focused on whether the witnesses knew D .B. and on any interactions the witnesses had with D.B. Through her questionin g, Sousa often attempted to reinforce the state’s argument, refreshing a witnes s’ memory on the sexual connotation of his encounter with Webber, inquiring about whether basketball players could drive their own cars to practice, ask ing witnesses about the credibility of one of the primary accusers, T.F., s upporting the credibility of D.B., including introducing an exhibit showing the letterD.B. wrote to his family telling them what happened, and challenging Webber’ s defense. Ultimately, the trial judge directed a verdict in f avor of Webber on Counts 8 and 9 and the jury convicted on the remaining 25 counts of child molestation. The trial court accepted the sentencing recommendat ions of the jury and sentenced Webber to life for Counts 1-2 and 15; 20 years for Counts 3-7, 10-14,-8-

16, 20, 22, and 24-27; 10 years for Counts 17-18, 2 1, and 23; and 5 years for Count 19, with all terms of years to be served cons ecutively. On direct appeal the OCCA, after reversing Counts 1-3, modified Webber’s sentence by ordering the sentences for Counts 4-7, 10-14, and 16-27 to be se rved concurrently and for Count 15 to run consecutively to those sentences. Webber v. State , No. F-95-778 (Okla. Crim. App. June 20, 1997) (unpublished).
III. STANDARD OF REVIEW The district court’s denial of Webber’s petition fo r habeas relief is reviewed de novo with respect to legal conclusions and under a clear error standard for factual findings. Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999). If the state court addressed a claim on the merits, habeas relief will not be granted unless the state court’s adjudication of th e claim: (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Deference is accorded to a st ate court result even when the state court fails to discuss any federal law ration ale for its decision or cite to any federal authority. Aycox v. Lytle , 196 F.3d 1174, 1177-78 (10th Cir. 1999). This deference applies when “there is no indication sugg esting that the state court did-9-

notreach the merits of a claim.” Gipson v. Jordan , 376 F.3d 1193, 1196 (10th Cir. 2004). If, however, it is determined that the state court did not reach the merits of a federal claim and there is no procedura l bar, deference under the Antiterrorism and Effective Death Penalty Act (“AED PA”) is inapplicable. Id.
IV. DISCUSSION A. Participation of the Child Advocate Webber argues that the participation of the child a dvocate violated his Fourteenth Amendment due process right to a fair tr ial by creating an improper two-against-one situation which affected the jury’s guilt determination and, to the extent the OCCA concluded this error was harmless, the OCCA applied the harmless error test in an objectively unreasonable manner. On direct appeal the OCCA determined that the child advocate’s appointment was improper under the statute because D.B. was over 18 at the time the charges against Webber were filed and that her participation at trial exceeded the bounds of the statute. Webber v. State , No. F-95-778 (Okla. Crim. App. June 20, 1997) (unpublished). The OCCA reversed the cou nts (1-3) associated with D.B. Although Webber argued federal and state due process grounds on direct appeal, the OCCA’s reversal was apparently based pr imarily on the Oklahoma2 The OCCA quoted Cooper v. State , 922 P.2d 1217, 1218 (Okla. Crim.

App. 1996), in which the court said that: an advocate for the child victim may only participate in the criminal trial when such participation promotes the best int erests of the child. To comply with due process, the child advocate may not, however, take on an adversarial role against the accused des pite the fact that convicting the accused may be in the child’s best i nterests. Webber v. State , No. F-95-778 (Okla. Crim. App. June 20, 1997) (unpublished). -10- statute. The opinion included only an oblique refe rence to “due process.” 2 Id. Without stating whether the error was premised on aviolation of the state statute or due process, the OCCA further held that the part icipation of Sousa was harmless with respect to the determination of guilton the remaining twenty-two counts of conviction. The OCCA, however, did modif y Webber’s sentence on each of the remaining counts on the grounds that “t he child advocate’s participation in the trial may have influenced the jury when they assessed punishment.” Id. The OCCA did not conduct any analysis regarding w hether the error was structural or trial error. From the OCCA’s opinion it is not clear whether the OCCA reached the merits of Webber’s federal due process claim with r egard to the participation of the child advocate, including whether there was a f ederal due process violation at all, whether the error was structural or trial erro r, and whether the error was harmless under Chapman v. California , 386 U.S. 18 (1967). The question of-11-

whether the OCCA reached the merits need not be dec ided, however, because Webber’s claim fails with or without according the state court’s decision AEDPA deference. Thus, for purposes of this decision, we will assume, without deciding, that the state court did not reach the merits of We bber’s federal due process claim regarding whether participation of the child advocate was a due process violation, whether such a violation was structural or trial error, and whether the error was harmless under Chapman . We, therefore, “exercise our independent judgmen t in deciding the claim.” Battenfield v. Gibson , 236 F.3d 1215, 1220 (10th Cir. 2001). In so doing, we review the legal conclusions of the district court de novo and its factual findings for clear error. Id . We will further assume, without deciding, that Sousa’s participation did amount to a violatio n of Webber’s Fourteenth Amendment due process right to a fair trial. Webber argues that the error flowing from Sousa’s e xtensive participation in Webber’s trial is structural in nature. Structu ral errors are errors that affect the entire “framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante , 499 U.S. 279, 310 (1991). In contrast, trial error is “error which occurred duri ng the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whet her its admission was harmless beyond a reasonable doubt.” Id. at 307-08.3 In reversing the contempt convictions because of th e appointment of the

private prosecutors, the Supreme Court relied on it s supervisory authority and not on federal constitutional law. Young v. United States ex rel. Vuitton et Fils S.A. , 481 U.S. 787, 809 (1987). In addition, three Justi ces specifically disagreed that the appointment of an interested prosecutor amounte d to structural error. Id. at 826-27 (Powell, J., concurring in part and dissenti ng in part). Neither of these issues is critical to our decision since Youngis easily distinguishable from the case at hand. -12- Webber relies heavily on Young v. United States ex rel. Vuitton et Fils S.A. in which a plurality of the Supreme Court concluded that the appointment of a private prosecutor is structural error not subject to harmless error analysis. 481 U.S. 787, 810 (1987) (plurality opinion). 3 The situation in Young , however, was qualitatively different than what happened in Webbe r’s case. In Young , the defendant was accused of violating an injunction ag ainst infringing Louis Vuitton’s trademark and Vuitton’s own lawyers were appointed by the court to prosecute the contempt charge. Id. at 791. Vuitton’s lawyers, unlike the child advocate, were the government’s sole representative s, had a relationship with Vuitton, and had a direct personal interest in the outcome of the case which would be to the advantage of their client, beyond simply vindicating the public’s interest in justice. See id. at 805-06 (suggesting the lawyers may have had a d esire to obtain information for a pending defamation case an d various other civil claims). “In a case where a prosecutor represents an interes ted party . . . the ethics of the legal profession require that an interest other than the Government’s be ta ken into-13-

account.” Id. at 807. As such, the Supreme Court was concerned about the “appearance of impropriety” that results from the i nherent conflict of interest and opportunity for abuse. Id. at 811. The concerns of the Supreme Court in Young are not present in Webber’s case because the child advocate, an officer of the court, had no personal or continuing interest in th e case nor did she have a preexisting relationship with any of the parties. Furthermore, this court has held that “the particip ation of a privatelyretained attorney in a state criminal prosecution d oes not violate the defendant’s right to due process under federal law unless the p rivate attorney effectively controlled critical prosecutorial decisions.” Erikson v. Pawnee County Bd. of County Comm’rs , 263 F.3d 1151, 1154 (10th Cir. 2001). While it d oes not include a structural error analysis, the Erikson decision sheds light on the question of whether the improper presence and parti cipation of a child advocate should be considered a structural or trial error. Mr. Erickson filed a § 1983 suit alleging, in part, a violation of his federal due p rocess rights because private defendants, the attorneys who represented the famil ies of two men killed by Erikson, participated in the state prosecution of E rickson. Id. at 1153. As in Erikson , Sousa was not involved in decisions regarding “wh ether to prosecute, what targets of prosecution to select, what investi gative powers to utilize, what sanctions to seek, plea bargains to strike, or immu nities to grant.” Id. at 1154-14-

(quotation omitted). Because her level of particip ation did not amount to controlling prosecutorial decisions, any improper i nvolvement on Sousa’s part cannot be said to be “so fundamental and pervasive that [it] require[s] reversal without regard to the facts or circumstances of the particular case.” Delaware v. Van Arsdall , 475 U.S. 673, 681 (1986). Moreover, contrary to Webber’s suggestion, the invo lvement and participation of Sousa is manifestly different than those errors that are considered structural. See , e.g. , Vasquez v. Hillery , 474 U.S. 254, 263-64 (1986) (plurality opinion) (excluding members of defendant’s race fro m the grand jury); McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984) (denial of self-repr esentation at trial); Waller v. Georgia , 467 U.S. 39, 49-50 & n.9 (1984) (denial of public trial); Gideon v. Wainwright , 372 U.S. 335, 344-45 (1963) (denial of right to c ounsel); Payne v. Arkansas , 356 U.S. 560, 567-68 (1958) (coerced confession); Tumey v. Ohio , 273 U.S. 510, 535 (1927) (biased judge). Conclud ing that an error is structural is “the exception and not the rule” and “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 578-79 (1986). The fact that Sousawas present throughout the trial and that any error could be de scribed as on-going or continuous, does not automatically give rise to a s tructural error outside the4 The panel declines Webber’s invitation to reconside r our en banc holding

in Herrera v. Lemaster , 301 F.3d 1192 (10th Cir. 2002). Herrerais in agreement with the other circuits that have considered the is sue. See Robertson v. Cain , 324 F.3d 297, 305-06 (5th Cir. 2003) (collecting cases) . Moreover, a panel of this court has no power to overrule circuit precedent. United States v. Walling , 936 F.2d 469, 472 (10th Cir. 1991). -15- bounds of harmless error analysis. In the case before us, Webber was tried by an impartial judge and jury, was represented by counse l, and had a full opportunity to present his case. The constitutional error, if any, that resulted from the improper appointment and participation of Sousa was , therefore, trial error. Trial error is subject to harmless error analysis. Fulminante , 499 U.S. at 307-08. Because, as discussed above, we are assumi ng that the OCCA did not address the merits of Webber’s federal claim, inclu ding whether any error was harmless, AEDPA deference will not be accorded the state court’s harmlessness determination. Consequently, the appropriate harml ess error standard to be applied on habeas review is from Brecht v. Abrahamson , 507 U.S. 619, 638 (1993). Herrera v. Lemaster , 301 F.3d 1192, 1199 (10th Cir. 2002) (applying Brechtwhen the state court did not apply the Chapman harmless error standard). 4
The Brechtstandard “requires reversal only if [the error] ha d substantial and injurious effect or influence in determining the ju ry’s verdict.” 507 U.S. at 631 (quotation omitted). If a court reviewing a habeas petition “is in grave doubt as-16-

to the harmlessness of an error that affects substantial rights, it should grant relief.” O’Neal v. McAninch , 513, U.S. 432, 445 (1995). This court recognizes that the involvement of Sousamay have had an impact on Webber’s trial, but the “effect or influe nce in determining the jury’s verdict” did not rise to the level of “substantial and injurious.” The testimony from the victims was extremely damning and provideda strong basis for a finding of guilt. The involvement of Sousa was marginal in comparison to the participation of the prosecutors. Additionally, th e OCCA appropriately remedied the impact of the error on Webber by modifying the sentences with regard to the remaining counts. See Carbray v. Champion , 905 F.2d 314, 317-18 (10th Cir. 1990). B. Remaining Claims The OCCA summarily rejected Webber’s other argument s without any discussion or legal analysis. Such a result is ent itled to AEDPA deference and will be upheld “unless our independent review of th e record and pertinent federal law persuades us that its result contravenes or unr easonably applies clearly established federal law, or is based on an unreason able determination of the facts in light of the evidence presented.” Aycox , 196 F.3d at 1178. Independent review is not the same as de novo review and habeas relief is only appropriate if th e state court’s result is “legally or factually unreasonabl e.” Id.5 To the extent Webber is arguing that the joinder is improper under state

law, such a claim is not a basis for federal habeas relief. Fox v. Ward, 200 F.3d 1286, 1292 (10th Cir. 2000). -17- 1. Joinder Webber argues that the trial court violated his due process right to a fair trial when it refused to sever Counts 1-18 from Cou nts 19-27. According to Webber, he was entitled to have the counts severed because the two sets of counts differ in nature and degree. More specifically, Webber contends that he was denied a right to a fair trial because the offenses enumerated in Counts 19-27 were supported by witnesses with greater credibility than the witnesses supporting the charges in Counts 1-18 and, furthermore, that t he allegations in Counts 1-18 involve more explicit sexual acts than the “horsepl ay” in the allegations in Counts
19-27. 5 Improper joinder will result in a constitutional vi olation “only if it results in prejudice so great as to deny a defendant his . . . right to a fair trial.” Lucero v. Kerby , 133 F.3d 1299, 1314 (10th Cir. 1998) (quotation o mitted). Such prejudice may arise when there is a great disparity in the am ount of evidence supporting the charges or when the jury is likely to confuse the e vidence or infer a criminal disposition on the part of the defendant. Id. at 1314-15. After reviewing the record, this court has determin ed that Webber failed to demonstrate the requisite prejudice which would ren der the trial so fundamentally-18-

unfair as to entitle Webber to habeas relief. Contrary to Webber’s assertion, the evidence supporting Counts 19-27 did not bolster th e disproportionately weaker credibility of the primary accusers associated with Counts 1-18. All of the victims testified in explicit detail to the conductof Webber. In addition, the presentation of the evidence of sexual molestation through victim witnesses limits the risk of juror confusion. Furthermore, the ten- day trial was not so long that the jury was likely to confuse the witnesses. See Lucero , 133 F.3d at 1316. Finally, Webber testified in his own defense and his defense was the same to all charges: denial of involvement. See id. In addition, as the district court noted, the evidence of the two sets of offenses was cross-admi ssible to show modus operandior a common pattern. Victims of the two differentsets of crimes testified to similar occurrences including inapprop riate wrestling and pulling on boxer shorts. The OCCA’s rejection of this claim w as not contrary to or an unreasonable application of federal law. Hence, We bber is not entitled to habeas relief on his claim of improper joinder 2. Sufficiency of the Evidence Webber claims the evidence was insufficient to sust ain a conviction on Counts 19-27 which involved sexual battery, lewd mo lestation, and attempted lewd molestation.-19-

This court has never decided whether sufficiency of the evidence claims are questions of law or fact for AEDPA purposes. Dockins v. Hines , 374 F.3d 935, 939 (10th Cir. 2004); see also Moore v. Gibson , 195 F.3d 1152, 1176-77 (10th Cir. 1999). But see Spears v. Mullin , 343 F.3d 1215, 1238 (10th Cir. 2003) (stating that sufficiency of the evidence involves a legal question). In evaluating sufficiency of the evidence claims, “the relevant q uestion is whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elemen ts of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). If sufficiency of the evidence is treated as a legal claim, under § 2254(d)(1), the court must evaluate whether the OCCA unreasonably applied the standard from Jackson . If sufficiency of the evidence is treated as a factual finding then the analysis falls under § 2254(d)(2) which asks whether the OCCA’s de cision was an unreasonable determination of the facts. We need not decide whi ch standard applies here because Webber’s claim fails under either standard. See Dockins , 374 F.3d at
939. In Oklahoma, sexual battery requires “intentional t ouching, mauling, or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that person.” Okla. Stat. tit. 21 § 1123(B) (1991). To convict o ne of lewd molestation, the state-20-

must prove that the defendant, knowingly and intent ionally, looked upon, touched, mauled, or felt the body or private parts of any ch ild under sixteen years of age in any lewd or lascivious manner. Okla. Stat. tit. 21 § 1123(A) (1991). Additionally, the accused must be at least three ye ars older than the victim. Okla. Stat. tit. 21 § 1123(A)(5) (1991). Lewdness is def ined as: a. any lascivious, lustful or licentious conduct, b. the giving or receiving of the body for indiscri minate sexual intercourse, fellatio, cunnilingus, masturbation, a nal intercourse, or lascivious, lustful or licentious conduct with any person not his or her spouse, or c. any act in furtherance of such conduct or any ap pointment or engagement for prostitution. Okla. Stat. tit. 21 § 1030(6) (1991). “The words l ewd and lascivious, when used in a statute to define an offense, usually have the same meaning, to wit, an unlawful indulgence in lust; eager for sexual indul gence.” Rich v. State , 266 P.2d 476, 479 (Okla. Crim. App. 1954) (quotation omitted ). Finally, to support an attempt conviction, the state must prove “(1) inten t to commit a specific crime; (2) performance of an overt act toward the commissi on of that crime; and (3) failure to consummate that crime.” James v. State , 711 P.2d 111, 113 (Okla. Crim. App. 1985). After an independent review of the record and viewi ng the evidence in the light most favorable to the prosecution, it is clea r that a rational factfinder could-21-

have found Webber guilty of sexual battery, lewd mo lestation, and attempted lewd molestation based on the evidence presented. In ad dition, the OCCA’s rejection of Webber’s claim was not an unreasonable determination of the facts. Each of the seven victims of Webber’s alleged sexual molest ation testified at length regarding their age at the time of the incident(s) and provided detailed descriptions of Webber’s conduct making up the elem ents of the charges. Webber, however, argues that the evidence failed to show the requisite unlawful sexual indulgence , and that the testimony described conduct that amounted only to horseplay. Contrary to Webber’s s uggestion, the testimony was sufficient for a rational trier of fact to find that Webber acted in a lewd and lascivious manner. The witnesses testified that We bber’s behavior went beyond giving a “snuggie” or horseplay and described how u ncomfortable Webber’s behavior made them feel. Moreover, the testimony d emonstrated a pattern of behavior from which a rational factfinder could inf er an eagerness for sexual indulgence. Webber is not entitled to habeas relie f on his sufficiency of the evidence claim because the OCCA’s rejection of Webb er’s claim was not contrary to or an unreasonable application of Jackson , nor was it an unreasonable determination of the facts.6 On direct appeal and in his habeas petition in dist rict court, Webber argued

that, in addition to giving an erroneous limiting i nstruction, the trial court improperly admitted the other crimes evidence. The latter argument was not made in Webber’s Application for Expanded Certificate of Appealability nor in the submission of the briefs, so it is not addressed inthis opinion. -22- 3. Limiting Instruction Webber also argues that the trial court improperly instructed the jury to consider other crimes evidence as proof of guilt. 6 The challenged instruction of the trial court stated:

Ladies and gentleman, this Court at this time needs to read you a cautionary instruction, and I need for you to lis ten to the instruction very carefully. You are instructed that the Court is about to allow testimony from three witnesses, relating to allegat ions that the defendant may have committed offenses other than th e crimes charged in the Information. These offenses are alleged to have occurred at or n ear the same time that the crimes charged in the Information are alleged to have been committed. You are instructed that evidence of other offenses, is admitted solely for a limited purpose. You must not conside r any evidence of any other offense alleged to have been committed by the defendant except insofar as it tends to prove the defendant c ommitted the crimes charged in the Information. You will not be justified in finding the defendant guilty or assessing any additional punishment in this case, m erely because you believe the evidence shows that he may have been gu ilty of some other offense. A defendant cannot be convicted of any crime other than the ones which he is charged. The Court is allowing su ch testimony solely for the purpose of attempting to show a planor preparation, or7 The trial court also used an instruction identical in all material respects to

the one quoted above as part of the jury charge at the close of the evidence. -23- attempt to show opportunity, motive or intent, or t o attempt to establish knowledge or identity of the defendant. If you find that such evidence fails to connect the defendant with the offenses charged in this case, then it is your duty to disregard such evidence. It does not matter how many other offenses the defendant may have committed, you cannot find t he defendant guilty unless you are convinced . . . by evidence b eyond a reasonable doubt that he is guilty of the offenses charged in this case.

Tr. 769-770. 7 A jury instruction, even if erroneous, is not const itutionally defective “unless the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the constituti onal sense or is otherwise constitutionally objectionable as, for example, by transgressing the constitutionally rooted presumption of innocence.” Brinlee v. Crisp , 608 F.2d 839, 854 (10th Cir. 1979) (citations omitted). The OCCA’s rejection of Webber’s instructional-erro r claim was not contrary to or an unreasonable application of feder al law as stated above. Webber asserts that the trial court erred when it instruct ed the jury to consider the evidence of other offenses “insofar as it tends to prove that the defendant committed the crimes charged in the Information.” While the specific language to which Webber points may be somewhat misleading, whe n read in its entirety, the8 Although Webber tries to characterize the instructi on as one “urged” by

the state, the court notes that Webber’s attorneys did not provide the trial court with proposed instructions before the witnesses tes tified nor did they feel it was particularly important to instruct the jury before the evidence was admitted. -24- trial court’s instruction properly instructs the ju ry. See Estelle v. McGuire , 502 U.S. 62, 72 (1991) (observing that instructions sho uld be considered as a whole and in context of the trial). The instruction conv eys to the jury the limited purpose for which the other crimes evidence is bein g admitted. Cf. Hale v. Gibson , 227 F.3d 1298, 1321 (10th Cir. 2000) (noting thatin Oklahoma other crimes evidence is admissible to show “motive, comm on scheme, identity, plan, knowledge, or absence of mistake or accident”). Mo reover, the instruction, even if erroneous, did not render the trial so fundament ally unfair as to constitute a constitutional violation. 8
V. CONCLUSION For the foregoing reasons, the district court’s den ial of Webber’s § 2254 habeas petition is AFFIRMED

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