Hale v. State

1995 OK CR 7, 888 P.2d 1027, 66 O.B.A.J. 374, 1995 Okla. Crim. App. LEXIS 8, 1995 WL 24895

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 20, 1995
• Docket: F-92-162
• Status: Published

Opinions

SUMMARY OPINION

CHAPEL, Vice Chief Judge:

James DeWayne Hale, Jr., was tried by jury in the District Court of Tulsa County, Case No. CF-90-1316. He was convicted of Count I — Rape in the First Degree in violation of 21 O.S.Supp.1986, § 1114, Count II— Incest in violation of 21 O.S.1981, § 885, and Count III — Rape by Instrumentation in violation of 21 O.S.1981, § 1111.1. In accordance with the jury’s recommendation, the Honorable B.R. Beasley sentenced Hale to two terms of imprisonment for 199 years for Counts I and III, and one 75-year prison term for Count II. Hale has perfected his appeal of these convictions.

Hale raises the following propositions of error on appeal:

I. Statistical evidence that the perpetrator’s DNA came from Hale was prejudicial and unduly admitted.

II. State’s exhibits which bolstered the testimony and conclusions of the DNA expert were improperly admitted as evidence.

III. The conviction for incest is unsustainable as a matter of law because it is not supported by sufficient evidence.

IV. Hale could not lawfully be convicted of rape and incest on the basis of a single act.

V. Hale was prejudiced in the sentencing proceedings by admission of a booking photograph.

VI.The State failed to meet its burden of proving prima facie that Hale’s conviction was constitutionally valid.

After thorough consideration of the entire record before us on appeal including the original record, exhibits, transcripts, and briefs of the parties, we find that Proposition IV has merit.

Hale argues in Proposition IV that he could not lawfully be convicted of rape and incest on the basis of a single act. Title 21 O.S.Supp.1987, § 11 A, provides that “an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, ... but in no case can it be punished under more than one[.]” This Court has called § 11 “the statutory prohibition on multiple punishment” and held that § 11 is not violated where offenses arising from the same transaction are separate and distinct and require dissimilar proof; the statute is violated where an offense arose from an act which is (1) a mere means to some other ultimate objective, (2) a lesser offense included in some other offense, or (3) merely a different incident or facet of some primary offense. Clay v. State, 593 P.2d 509, 510 (Okl.Cr.1979). Section 11 was promulgated in 1970. In the early seventies this Court decided several cases based on § 11 statutory grounds separate from a double jeopardy analysis.¹ In successive opinions the Court appeared to abandon the use of § 11 or discussed it only peripherally in cases decided under traditional double jeopardy analysis.² More recently the Court seems to have conflated the two, treating § 11 as if it were merely a codification or legislative restatement of the constitutional prohibitions against double jeopardy.³

On the contrary, § 11 provides a clear legislative statement of intent to be used where a defendant has received multiple punishments in a single trial for offenses arising from the same conduct.⁴ If a single criminal act gives rise to offenses which are not separate and distinct, are a means to another ultimate objective, are lesser included offenses, or are incidents or facets of some other offense, that conduct may not be punished under more than one statute. The elements of the offenses may be dissimilar if they fall'into one of these categories. The point of the analysis is neither whether the offenses arise from the same conduct nor whether they must be proved by the same evidence, but whether, taken as a whole, a defendant has been punished twice for one criminal course of conduct where his offenses were incident to one objective.

Section 11 complements double jeopardy, and only where § 11 does not apply need this Court engage in traditional double jeopardy analysis. Oklahoma will apply the “same transaction” test (did the offenses arise from the same criminal conduct?) for cases of multiple trials, and the “same evidence” test⁵ (does each offense require proof of an additional fact the other does not?) in cases of multiple punishment in a single trial.⁶ The Blockburger “same evidence” test provides a rule of statutory construction, a guide to determining whether a legislature intended multiple punishments in order to prevent a sentencing court from prescribing greater punishment than a legislature intended.⁷ In promulgating § 11 our legislature expressed its clear intention that, where an act or omission is punishable under different statutes, a defendant may only be punished once for the single act.

Hale committed an act of forcible rape against his sister. The elements of rape include nonconsensual intercourse by force or fear against a woman not Hale’s wife. The elements of incest include sexual intercourse with a person related to Hale within prohibited degrees of consanguinity. Thus the elements of rape and incest require dissimilar proof — one requires lack of consent and use of force or threats, while the other is silent as to consent but requires that the parties be related. However, only one act of intercourse was completed. On the facts of this case, the offense of incest is only a different incident or facet of the offense of rape, both of which had the single objective of sexual intercourse. These facts fall squarely within the prohibition of § 11. Thus, on the facts of this case, Hale’s conviction for incest cannot stand.

DECISION

The Judgment and Sentence of the trial court as to Counts I and III are AFFIRMED. The Judgment and Sentence of the trial court as to Count II is REMANDED with instructions to DISMISS.

JOHNSON, P.J., and LUMPKIN, J., concur in result. LANE and STRUBHAR, JJ., concur.

1 . Smith v. State, 486 P.2d 770, 771-72 (Old.Cr. 1971) (separate trials for assault and battery with intent & robbery with a dangerous weapon from same conduct, § 11 analysis asks if acts were from same transaction, says since both charges arise from same event & assault and battery was committed in order to achieve robbery objective, conviction for former bars robbery charge); Shackelford v. State, 481 P.2d 163, 164 (Old.Cr. 1971) (§ 11 prohibits convictions for possession of narcotics and robbery by firearms when both arise from one criminal act which incidentally violated more than one statute and offenses were incident to one objective); Tucker v. State, 481 P.2d 167, 168 (Okl.Cr.1971) (opinion does not discuss § 11, using traditional double jeopardy analysis to hold armed robbery complete before kidnap started, BUT special concurrence refers to § 11 as making no provision for "course of conduct”); Lawson v. State, 484 P.2d 900 (Old. Cr.1971) (§ 11 prohibited convictions for robbery with firearms & burglary, one criminal act may only be punished once); Richmond v. State, 492 P.2d 349, 350-51 (OM.Cr.1971) (§ 11 prohibits convictions for attempted armed robbery and burglary since both arose from, were incident to, and part of one objective or criminal act and may be punished only once); Bray v. Page, 494 P.2d 339, 340 (Old.Cr. 1972) (separate prosecutions for shooting with intent and robbery with firearms — under § 11 single criminal act which incidentally violates more than one statutory provision may be punished under either, but only once; showed legislature’s obvious intent that a defendant should not be convicted or punished twice under different sections of criminal code for same act). Cf. Grace v. Harris, 485 P.2d 757 (Okl.Cr.1971) (defendant claimed § 11 violation but the Court decided the case under Oklahoma Constitution Article II, § 21, holding double jeopardy prohibited separate convictions for armed robbery and using firearm in commission of felony, as use of firearm was essential element of robbery with firearm). But see Jennings v. State, 506 P.2d 931 (Old.Cr. 1973) (§ 11 did not apply because statute indicates where offense chargeable under penal code as whole and under more specific statute in something other than Title 21, then offense must be charged under more specific statute, and here no more specific statute outside penal code exists and it did not appear defendant was held to answer under 2 different statutes for same act — this analysis is contrary to the plain language of § 11 and does not appear in subsequent cases).

2 .Turner v. State, 786 P.2d 1251, 1253 (Okl.Cr. 1990) (not § 11, assault with a deadly weapon/kidnap/attempted escape same criminal episode but different elements, completion of other crimes not integral part of escape); Doyle v. State, 785 P.2d 317, 323 (Okl.Cr.1989) (not § 11, kidnap/rapes/sodomy criminal episode has separate crimes with different elements and dissimilar proof); Hunnicutt v. State, 755 P.2d 105, 110 (Okl.Cr.1988) (not § 11 but discusses double jeopardy where one transaction gives rise to two charges, conviction of two counts of concealing stolen property prohibited where one transaction with 2 guns in sack — cites § 11 to say nothing in statutes indicates legislature intended result such that defendant could have been charged with twenty counts if twenty guns had been in sack); Weatherly v. State, 733 P.2d 1331, 1336-37 (Okl. Cr.1987) (not § 11, two convictions for assault with a deadly weapon with intent not prohibited by double jeopardy because distinct separation between crimes, dissimilar proof); Barnhart v. State, 518 P.2d 1123, 1124 (Okl.Cr. 1974) (not § 11, armed robbery/kidnap/assault with a deadly weapon with intent do not violate double jeopardy even if offenses arose from single continuing transaction, as each crime separate & distinct with dissimilar proof); Kupiec v. State, 493 P.2d 444, 446 (Okl.Cr. 1972) (not § 11, trial for armed robbery and trial for rape, same events, not prohibited because proof dissimilar, separate crimes committed in rapid succession).

3 . Ashinsky v. State, 780 P.2d 201, 208 (Okl.Cr. 1989) (§11 issue fundamental and can be raised by Court sua sponte, using “same evidence” test, finds both offenses separate and distinct because defendant accomplished robbery before committing assault with a deadly weapon — although case cites § 11 entire discussion is traditional double jeopardy analysis); Johnson v. State, 611 P.2d 1137, 1142-43 (Okl.Cr. 1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 955, 67 L.Ed.2d 120 (1981) (separate prosecutions for kidnap and murder — different counties but same transaction — should have been tried in one case but defendant waived double jeopardy claim by failing to raise it until after the kidnap trial, holds Court will apply "same transaction" or “same evidence” test as appropriate case by case — cites § 11 cases and does not distinguish between double jeopardy and § 11 although ruling is based on double jeopardy analysis). Even Clay, supra, cited Barnhart, Tucker, and Kupiec for the finding that § 11 is not violated where offenses are separate or distinct and require dissimilar proof, but none of those cases were decided under § 11.

4 . Bray v. Page, 494 P.2d 339, 340 (Okl.Cr. 1972); Cf. Hunnicutt v. State, 755 P.2d 105, 110 (Okl.Cr. 1988).

5 . Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

6 . Ashinsky, 780 P.2d at 208; Ocampo v. State, 778 P.2d 920, 923-24 (Okl.Cr. 1989); Salyer v. State, 761 P.2d 890, 893 (Okl.Cr.App.1988); Johnson, 611 P.2d at 1142-43.

7 . Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Ellis v. State, 834 P.2d 985, 990 (Okl.Cr.1992). Ellis did not discuss § 11 but the opinion supports the argument that the Blockbur-ger test should not be applied where legislative intent is clear. Arizona, California, Georgia, Ohio, Minnesota, and Missouri have statutes analogous to § 11, and Hale's cited cases indicate that those courts look to their analogous statutes to determine whether it is necessary or appropriate to conduct a double jeopardy analysis. The State cites cases from several other states in which rape and incest were held not to violate double jeopardy, but none of those cases were decided under analogous statutes (Missouri’s statute, as cited by both parties, prohibits multiple prosecutions for inclusive and included offenses only).