Davenport v. State

806 P.2d 655, 1991 WL 11063
CourtCourt of Criminal Appeals of Oklahoma
DecidedFebruary 13, 1991
DocketF-88-189
StatusPublished
Cited by39 cases

This text of 806 P.2d 655 (Davenport v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davenport v. State, 806 P.2d 655, 1991 WL 11063 (Okla. Ct. App. 1991).

Opinions

OPINION

JOHNSON, Judge:

JOHN MICHAEL DAVENPORT, appellant, was tried by jury for the crimes of Oral Sodomy, Crime Against Nature, (Counts I, II and IV), and Lewd Molestation, (Count III), in violation of 21 O.S.1981, §§ 886 and 1123, respectively, in the District Court of Carter County. Appellant was represented by counsel. The jury returned verdicts of guilty on all counts and set punishment at four (4) years on Count [657]*657I, six (6) years on Count II, nine (9) years on Count III and ten (10) years on Count IV. The trial court ordered the sentences to run consecutively. From these Judgments and Sentences, appellant appeals.

On April 11, 1987, Lone Grove Police Officer Larry Hoklotubbe responded to a call from Mrs. Baumstock. Mrs. Baum-stock’s son, Ralph, stated that M.C., his nine-year old friend, had told him that his step-dad, appellant, had been “sucking on his wienie.” The Baumstocks were neighbors to M.C. and appellant. Based on this information, Officer Hoklotubbe went to appellant’s house and took both appellant and M.C. to the police department for questioning.

At the police department, appellant and M.C. were taken to separate rooms. Appellant waived his Miranda rights and admitted to Officer Hoklotubbe that he had performed oral sodomy on M.C. and had M.C. perform oral sodomy on him. Appellant claimed that it had only happened twice, and during the second incident, he had only played with M.C. and had M.C. perform oral sodomy on him. In another room, M.C. told Officer Garland Morgan that appellant had “sucked his wienie a bunch of times.”

At trial, appellant testified that he was never read his Miranda rights and that he had only agreed that he had done those things because the officers kept telling him that M.C. would receive help and counseling if he confessed.

In the first assignment of error, appellant claims that there was insufficient evidence to support the jury’s finding of guilt with respect to the charge of sodomy. Specifically, appellant contends that the State failed to prove the element of penetration. When the sufficiency of the evidence presented at trial is challenged on appeal, this Court must determine whether, after viewing the evidence in the light most favorable to the State, 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, 203-04 (Okl.Cr.1985).

In his brief, appellant has cited numerous eases in which this Court reversed sodomy convictions due to failure of the State to prove penetration. However, as the State notes, each of those cases involved an act of cunnilingus and were reversed because the State had failed to prove penetration. In the present case, we are not dealing with cunnilingus, but rather, fellatio. Thus, penetration would be proved by evidence that appellant had put M.C.’s penis in his mouth or evidence that he had put his penis in M.C.’s mouth.

A review of the record reveals that during his confession, appellant admitted penetration. Realizing that there can be no “sucking” without penetration, we find sufficient evidence from which the jury could have found the essential elements of the crime charged beyond a reasonable doubt.

In the same argument, appellant claims that because M.C.’s testimony was so incredible and unworthy of belief, corroboration was required to sustain the conviction. Appellant contends that no corroboration was presented at trial. While it is true that at trial M.C. tried to recant his previous statements concerning the incidents by saying it was all a dream, it is also clear from the record that M.C. was embarrassed about the incidents and concerned about his step-father going to jail. Where there is a conflict in the testimony, it is the exclusive province of the jury to weigh the testimony and draw their conclusion therefrom, and if there is any competent evidence to support their verdict it will not be disturbed by this Court. Pitts v. State, 324 P.2d 546, 548 (Okl.Cr.1958). Furthermore, we find that corroboration of M.C.’s testimony was provided by appellant’s own confession.

In his second assignment of error, appellant contends that he was improperly Mirandized and, therefore, his confession should have been suppressed. Specifically, appellant contends that he was never read his rights and there is contradictory evidence as to who supposedly read him his rights. Prior to trial, a hearing was held on appellant’s motion to suppress the confession. At the hearing, Officer Hoklo-[658]*658tubbe testified that he read the waiver of rights to appellant, explained them and asked appellant whether he understood them, to which appellant replied that he did. Officer Hoklotubbe then asked appellant to sign the waiver form and he did. On cross-examination, Officer Hoklotubbe stated that he had read appellant his Miranda rights before questioning him. Virginia Davenport, appellant’s wife, testified that Officer Jan Dodson had appellant sign the waiver of rights form. Mrs. Davenport further testified that Officer Hoklotubbe threatened to put appellant away if he was guilty. After a review of the record, we find that appellant was properly informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In the same argument, appellant claims that he was coerced by Officer Hok-lotubbe into confessing to the incidents of molestation. However, the record is simply void of any evidence of coercion, and we find that appellant’s confession was given freely and voluntarily.

In his next assignment of error, appellant contends that the trial court erred in allowing Tony Ernst, a psychologist, to give expert testimony concerning child “Accommodation Syndrome,” which describes the behavioral patterns of sexually abused children. Mr. Ernst testified that the accommodation syndrome is divided into four stages (actually there are five (5) as his number (1) has two parts): (1) periods of secrecy and helplessness; (2) periods where the child accommodates the adult; (3) delayed and conflicting disclosure; and (4) retraction of the story. Mr. Ernst’s testimony was general in nature. He did not give any opinion concerning M.C.’s credibility nor did he state whether M.C.’s behavior was typical of the syndrome. This was admitted due to the fact that M.C. recanted his first or prior story and to explain to the jury why a child reacts this way.

Before such expert testimony could be admitted, it must be proven to the satisfaction of the court that the syndrome is generally accepted in the medical community as reliable. Driskell v. State, 659 P.2d 343 (Okl.Cr.1983). The trial court held an in camera hearing to determine this particular test. Although objected to, the testimony of the expert was introduced at the time of trial. It is impossible for us to tell from the transcript what happened at the in camera hearing because it was not recorded. We can only assume that the syndrome was determined by the court to be accepted as reliable. We again admonish the bench and bar to have all side bar or in camera hearings recorded on the record.

The expert testified that the syndrome was generally accepted and his answer to the propounded question was not objected to and, therefore, must stand as proper evidence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth of Kentucky v. Gary Campbell
Court of Appeals of Kentucky, 2025
King v. Commonwealth
472 S.W.3d 523 (Kentucky Supreme Court, 2015)
Perez v. State
2013 NV 90 (Nevada Supreme Court, 2013)
Sanderson v. Commonwealth
291 S.W.3d 610 (Kentucky Supreme Court, 2009)
Blanton v. State
2007 OK CR 37 (Court of Criminal Appeals of Oklahoma, 2007)
Wetmore v. Addison
126 F. App'x 442 (Tenth Circuit, 2005)
Parker v. Scott
394 F.3d 1302 (Tenth Circuit, 2005)
Johnson v. State
2004 OK CR 25 (Court of Criminal Appeals of Oklahoma, 2004)
Harris v. State
2004 OK CR 1 (Court of Criminal Appeals of Oklahoma, 2004)
Swart v. Hargett
Tenth Circuit, 2000
Huskey v. State
1999 OK CR 3 (Court of Criminal Appeals of Oklahoma, 1999)
White v. State
1998 OK CR 69 (Court of Criminal Appeals of Oklahoma, 1998)
Slaughter v. State
1997 OK CR 78 (Court of Criminal Appeals of Oklahoma, 1997)
Riley v. State
1997 OK CR 51 (Court of Criminal Appeals of Oklahoma, 1997)
Newkirk v. Commonwealth
937 S.W.2d 690 (Kentucky Supreme Court, 1996)
Taylor v. State
1995 OK CR 10 (Court of Criminal Appeals of Oklahoma, 1995)
Frenzel v. State
849 P.2d 741 (Wyoming Supreme Court, 1993)
Bechtel v. State
1992 OK CR 55 (Court of Criminal Appeals of Oklahoma, 1992)
Luna v. State
1992 OK CR 26 (Court of Criminal Appeals of Oklahoma, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
806 P.2d 655, 1991 WL 11063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davenport-v-state-oklacrimapp-1991.