Collins v. State

1988 OK CR 33, 751 P.2d 200, 1988 Okla. Crim. App. LEXIS 50, 1988 WL 21475

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 24, 1988
• Docket: F-85-657
• Status: Published

Opinions

OPINION

BUSSEY, Judge:

The appellant, Charles Lee Collins, was convicted in the District Court of Muskogee County, Case No. CRF-84-326, of two counts of First Degree Rape After Former Conviction of a Felony, and two counts of Lewd Molestation After Former Conviction of a Felony. He was sentenced to 150 years’ imprisonment on each count, with three counts running concurrently, and one count running consecutively to the first count. He appeals raising five assignments of error..

Briefly stated, concerning the two counts of rape, the evidence revealed that a fifteen year old female relative of the appellant’s testified concerning two specific occasions when the appellant forced her to have intercourse with him, once when she was eleven, and once when she was thirteen. A second female relative, who was ten years old at the time of trial, testified concerning two incidents of lewd molestation of her by the appellant when she was nine years old. Those facts are discussed in more detail in the second assignment of error.

An investigator for the Muskogee County Sheriff’s Office and a Deputy Sheriff interviewed the appellant after arrest, and testified that he admitted the charges. The appellant also testified and admitted having intercourse with the first girl, but stated that he was coerced by her, and that the dates were wrong. He denied the incidents with the second girl.

In his first assignment of error, the appellant complains of two questions asked by the prosecutor, alleging that they were improper. The first question drew an objection from defense counsel, and was sustained; therefore, any error not of a fundamental error was waived. Tahdooahnippah v. State, 610 P.2d 808 (Okl.Cr.1980). See Thomson v. State, 676 P.2d 857 (Okl.Cr.1984). Finding no error requiring reversal or modification, this assignment is mer-itless.

In his second assignment of error, the appellant contends that the evidence was insufficient to sustain his conviction on the two counts of Lewd Molestation. In reviewing sufficiency of the evidence, we are required to determine, after reviewing the evidence in the light most favorable to the State, whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985). Testimony was presented, which if believed, would show that the appellant in June of 1984, grabbed a nine year old girl, who is his relative, around her chest and pulled her over to him so that his penis was against her back. In July of 1984, the appellant, at about six o’clock in the morning, lay down beside the girl and attempted to remove her panties, but she got away from him. After he was arrested, he admitted to Dick Huitt, an investigator with the Muskogee District Attorney’s Office, that he had rubbed the girl “in her private area on the outside of her pants, between her legs.” We find that the evidence presented was sufficient to sustain the jury’s verdict.

The appellant’s third assignment of error asserts that he was denied effective assistance of counsel by defense counsel’s failure to ask for separate trials on the rape and lewd molestation charges, by failure to preserve the prosecutor’s closing argument when she waived transcription, by failure to object to an allegedly improper comment, by failure to ask for sequestration of witnesses at the preliminary hearing until after the first witness had testified, and by lack of preparation for trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984) holds: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” The appellant confessed to officers to the charges against him, on all counts, and confessed in court to having sexual intercourse on more than one occasion with one of the minor witnesses. Considering the strength of the evidence against the appellant, we cannot find that the verdict would have been different.

The appellant’s fifth assignment of error urges that the sentences imposed were excessive. We have consistently held that where punishment is within the range established by the legislature, we will not disturb the sentence unless under all the facts and circumstances of the case, the sentence is so excessive as to shock the conscience of the Court. Ahhaitty v. State, 715 P.2d 82 (Okl.Cr.1986). Considering the facts of this case, we cannot say that the sentence is excessive or that it shocks this Court’s conscience. This assignment of error is meritless.

Finally, the appellant argues that if no single assignment of error is sufficient to justify reversal when considered separately, the cumulative effect of the errors necessitates that this case be remanded for a new trial. This Court has consistently held that where there is no individual error, there can be no error by accumulation. Master v. State, 702 P.2d 375 (Okl.Cr.1985). Therefore, this assignment of error is also without merit.

The judgments and sentences are AFFIRMED.

PARKS, J., specially concurs. BRETT, P.J., concurs in part, dissents in part.