State v. Day

STRUBHAR, Judge,

dissenting:

I respectfully dissent to two portions of the majority’s decision.

First, although I do not accept the State’s argument that a brightline rule should be established, that “discovery” in 22 O.S.1991, § 152 should be interpreted to mean the time the State discovers the crime, I do believe that the majority does not fully take into consideration the perils of limiting discovery to a determination that the victim has knowledge of (i) the act and (ii) its criminal nature. This determination should also include a finding that the victim (iii) had the ability to report the crime to a responsible person or entity.

Secondly, I do not believe the ease should be affirmed as I feel a remand to the trial court is necessary. I am concerned that when an alleged victim states, “I remembered it but I did not attach any significance to it,” that this person did not understand the criminal nature of the act or did not have the ability to report the crime. There needs to be further inquiry.

Because sexual offenses against children present a special circumstance, we must take into account that the victim may be young, naive, and trusting. Often times a young victim does not necessarily know that the acts of the wrongdoer constitute a crime and therefore the child does not report the crime.