Drake v. State

1988 OK CR 180, 761 P.2d 879, 1988 Okla. Crim. App. LEXIS 199, 1988 WL 97596
CourtCourt of Criminal Appeals of Oklahoma
DecidedSeptember 2, 1988
DocketF-85-449
StatusPublished
Cited by13 cases

This text of 1988 OK CR 180 (Drake 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
Drake v. State, 1988 OK CR 180, 761 P.2d 879, 1988 Okla. Crim. App. LEXIS 199, 1988 WL 97596 (Okla. Ct. App. 1988).

Opinions

OPINION

BUSSEY, Judge:

The appellant, Clayton W. Drake, was convicted in the District Court of Tulsa County Case No. CRF-84-3588 of the crimes of Rape in The First Degree, in violation of 21 O.S.1984 Supp., § 1114, and Lewd Molestation of a Child Under 16, in violation of 21 O.S.1983 Supp., § 1123. He was sentenced to ten (10) years’ imprisonment on the Rape charge and five (5) years’ imprisonment on the Lewd Molestation charge, the sentences to run consecutively, and he appeals.

At approximately 4:00 p.m. on September 20, 1984, Connie Melton arrived home with her children to find the neighbor girl, seven-year-old T.M. waiting for her, asking if she could come inside to watch cartoons on television. While the children were watching television T.M. revealed to Mrs. Melton that she did not like her step-father because he did “nasty stuff”; things “what grownups do to have babies”.

Mrs. Melton then took the little girl into another room and had her explain further what the child had meant. After hearing all of T.M.’s story, Mrs. Melton called a doctor, the local child abuse organization, and the police. When the police arrived, T.M. repeated her story, was taken into protective custody, and placed in a foster home. The appellant was then arrested.

At trial, T.M. told the jury about a pattern of molestations, rapes, and threats by the appellant which spanned three years. She was able to describe these acts in graphic detail. Her testimony was such that the jury could reasonably conclude that T.M.’s account could only have come from personal experience. Additional testimony showed that T.M.’s mother had been made aware of her husband’s advances toward the little girl for quite some time, but chose not to believe her daughter’s story. Medical testimony was offered which tended to corroborate T.M.’s testimony.

The appellant testified on his own behalf. He was joined by T.M.’s mother and various character witnesses. The appellant denied committing the various acts, while his wife, T.M.’s mother, persisted in her belief that T.M. had been, and was, lying in her accusations.

As the first of eight propositions of error, the appellant argues that the trial court committed reversible error in failing to instruct the jury to consider only those acts of Rape and Molestation which occurred on September 14, 1984, the date of the incident(s) recited in the information. The appellant suggests that without this limiting instruction, the jury improperly considered all of the acts T.M. testified about when they found the appellant guilty. The appellant argues that this amounted to a conviction of crimes other than those with which he was charged, in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution, citing Louis v. State, 222 P.2d 160 (Okl.Cr.1950).

Huddleston v. State, 695 P.2d 8 (Okl.Cr.1985) is directly on point with the facts of this case and provides the applicable rule. In that case, we held that “when a child of tender years is under the exclusive domination of one parent for a definite period of time and submits to sexual acts at that parent’s demand, the separate acts of [882]*882abuse become one transaction within the meaning of the rule [requiring election of offenses for conviction],_” Id. at 10-11. Also, the appellant was adequately forewarned of the State’s intent to offer the evidence of the appellant’s three-year pattern of advances through its timely filing of a Burks notice. See Burks v. State, 594 P.2d 771 (Okl.Cr.1979). From this record it is abundantly clear that the jury’s verdict was based on a concurrence of one continuing criminal transaction, which the appellant can “plead in bar as to any subsequent prosecution for the offense on which he was actually convicted.” See e.g., Dugan v. State, 360 P.2d 833, 834 (Okl.Cr.1961). This first assignment is without merit.

The appellant’s second assignment of error is that the trial court committed reversible error in failing to include separate “not guilty” verdict forms with the instructions given to the jury. Separate guilty forms were provided for each count. The appellant concludes from this that the jury was therefore required to find the appellant not guilty of both offenses, or guilty of one or both.

We agree with the appellant that the better practice would be to provide separate “Not Guilty” verdict forms for each crime charged. We disagree, however, that this omission rises to the level of fundamental error found in the cases where no form whatsoever was provided. See e.g., Dyke v. State, 716 P.2d 693 (Okl.Cr.1986). In light of the fact that the jury was properly and specifically instructed that a verdict on each charge must be reached separately as to each element of each crime, and that a “Not Guilty” form was provided, this assignment is harmless error at best.

The third and fourth assignments of error that are raised can be summarized by one conclusory proposition: Because the testimony of the victim, T.M., was inconsistent, the trial court erred in failing to instruct the jury to disregard her testimony unless there was corroboration. These conclusions are not, however, supported by the record and have no merit.

We first note that there is ample corroboration to the young girl’s testimony. Medical testimony was offéred that, if believed by the jury, tended to prove that an act of rape was committed on the day in question. The testimony of the girl’s grandmother also corroborates T.M.’s account as does, to a limited extent, the mother’s testimony.

Nor can it be plausibly argued that young T.M. was an accomplice to these acts whose testimony needs corroboration. See Glaze v. State, 565 P.2d 710 (Okl.Cr.1977). The record does not support a conclusion that T.M.’s account is too inherently improbable to support a conviction or that her testimony is so unsatisfactory or thoroughly impeached to warrant reversal. See Gamble v. State, 576 P.2d 1184, 1186 (Okl.Cr.1978); Costilla v. State, 609 P.2d 788 (Okl.Cr.1980); O.U.J.I.-CR. 841. Accordingly, appellant’s third and fourth assignments are without merit.

Next, the appellant argues that he was deprived of a fair trial because of prejudicial influences in the forms of improper evidence, examination of witnesses and commentary by the prosecution. We will address only as much of the testimony and commentary complained of that was properly preserved for appeal by timely objection.

The first of the alleged improper testimony complained of is that of T.M.’s examining physician. As authority for his argument, the appellant cites an early Oklahoma case that is both limited to the circumstances of the particular case as well as predating our current evidence code. See Coppage v. State, 137 P.2d 797, 807 (Okl.Cr.1943).

Our review of this testimony convinces us that the doctor’s testimony was properly admissible under 12 O.S.1981, § 2803(4), as statements made by the de-clarant for purposes of medical treatment. Also, the State made its intent to use the complained of testimony known pursuant to 12 O.S.1984 Supp., § 2803.1. An in-camera hearing was held, as required by statute, at which time the trial court concluded that the testimony was properly admissible. [883]*883The admissibility of such evidence is discretionary with the trial court and is not cause for reversal unless there is a showing that the appellant’s fundamental rights have been violated. Cooper v. State, 671 P.2d 1168 (Okl.Cr.1983);

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Drake v. State
1988 OK CR 180 (Court of Criminal Appeals of Oklahoma, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
1988 OK CR 180, 761 P.2d 879, 1988 Okla. Crim. App. LEXIS 199, 1988 WL 97596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-state-oklacrimapp-1988.