McBrain v. State

1988 OK CR 218, 763 P.2d 121, 1988 Okla. Crim. App. LEXIS 229, 1988 WL 103993
CourtCourt of Criminal Appeals of Oklahoma
DecidedSeptember 27, 1988
DocketF-86-690
StatusPublished
Cited by17 cases

This text of 1988 OK CR 218 (McBrain 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
McBrain v. State, 1988 OK CR 218, 763 P.2d 121, 1988 Okla. Crim. App. LEXIS 229, 1988 WL 103993 (Okla. Ct. App. 1988).

Opinions

BUSSEY, Judge:

The appellant, Kirk Warren McBrain, was convicted on February 14, 1986, in the District Court of Noble County, Case No. CRF-85-06 of the crimes of Kidnapping, First Degree Rape (two counts) and Sodomy. Appellant was sentenced to eight (8) years imprisonment on the Kidnapping charge, ten (10) years imprisonment on each of the Rape counts (each count to run concurrently) and ten (10) years imprisonment on the Sodomy charge. From this sentence he appeals.

On the evening of March 23, 1984, Kirk McBrain, Donald Honeycutt and Mark Lov-eall grabbed fourteen-year-old R.A. as she was walking along a Ponca City street and forced her into McBrain’s car. While McBrain drove, Honeycutt grabbed and threw a screaming R.A. into the front seat. The victim was placed in the front seat between McBrain and Honeycutt until they arrived at Lake Ponca. Honeycutt then ordered R.A. to take off her clothes, he slapped her and got into the backseat where he raped her. Then Loveall raped her. Finally, McBrain who had been in the driver’s seat forced the victim to orally sodomize him. The appellant stated he didn’t want to rape her because he thought she had a venereal disease. While appellant was in the backseat with the victim, Honeycutt began driving the car.

Shortly thereafter a Ponca City police officer, noticing erratic driving, stopped the vehicle and asked the three men for identification. The officer observed that Loveall did not have his pants on and that McBrain was not wearing underwear. The officer [123]*123arrested Honeycutt for driving under the influence. He then arrested the appellant and Loveall for public intoxication. R.A. remained in the car until the officer had arrested and detained the three men. The officer noted that R.A.’s face and hair were covered with axle grease. He described her demeanor as “controlled hysteria”.

A detective from the Ponca City police department arrived and interviewed the victim at the scene. She recounted the rapes by Honeycutt and Loveall and said that the appellant had put his finger in her vagina. The victim was then taken to the hospital where personnel administered a rape test.

On March 25, 1984, the detective took a taped statement from appellant where he admitted orally sodomizing R.A. Thereafter, the detective interviewed R.A. and she acknowledged that appellant had made her orally sodomize him.

On March 26, 1984, an Information was filed in Kay County against the appellant and the two other co-defendants. Appellant’s preliminary hearing was held on July 26, 1984, and he was bound over for trial.

During Thanksgiving week 1984, the victim disappeared and was found dead. Police arrested appellant and charged him with murder. On New Year’s Eve 1984, appellant escaped from the Kay County jail and was not recaptured until nine months later.

Prior to his escape the district judge in Kay County granted a change of venue to Noble County. Prior to trial, on January 22, 1985, and February 10, 1986, the appellant presented motions for change of venue from Noble County. The court denied the motions and the jury trial began on February 10, 1986.

I

As his first assignment of error the appellant asserts that his conviction under 21 O.S.1981, § 886 is unconstitutional. We reject this assignment of error. We have repeatedly held that this statute is constitutional. Hicks v. State, 713 P.2d 18 (Okl.Cr. 1986); Glass v. State, 701 P.2d 765 (Okl.Cr.1985); Golden v. State, 695 P.2d 6 (Okl.Cr.1985); Clayton v. State, 695 P.2d 3 (Okl.Cr.1984). See also Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).

The appellant cites Post v. State, 715 P.2d 1105 (Okl.Cr.1986) to support his contention. However, Post, supra, declared unconstitutional the application of 21 O.S. 1981, § 886 to consensual acts between adults.

We stress that our decision today in no way affects the validity of 21 O.S.1981, § 886 in its application to bestiality, forced sexual activity, sexual activity of the underaged, or public or commercial sexual acts.

Post, supra, at 1109.

The appellant additionally ásserts in his first contention that he should have been allowed an instruction on consent. The evidence does not support such an instruction nor is one necessarily required as 21 O.S.1981, § 886 covers acts of consensual sodomy committed with a child. See Post, supra. We therefore find this assignment without merit.

II

In his second assignment the appellant contends that the trial court erred by denying his motion for a change of venue from Noble County. A change of venue had already been granted from Kay County to Noble County. We find that the trial court did not abuse its discretion in denying the second change of venue. The trial court acknowledged the extensive publicity given the case. However, the court felt that a change of venue was not warranted as an impartial panel could be selected in Noble County.

We have held consistently that a granting of a change of venue is within the discretion of the trial court and that we will not disturb the denial of a motion for change of venue unless there has been an abuse. Plunkett v. State, 719 P.2d 834 (Okl.Cr.1986); Wooldridge v. State, 659 P.2d 943 (Okl.Cr.1983); Frye v. State, 606 P.2d 599 (Okl.Cr.1980). Whether the defendant was provided with a fair and im[124]*124partial jury is the determinative inquiry into whether the trial court abused its discretion in denying the motion for change of venue. Plunkett, supra; Wooldridge, supra; Andrews v. State, 555 P.2d 1079 (Okl.Cr.1976); Brinlee v. State, 543 P.2d 744 (Okl.Cr.1975).

In the instant case the trial court conducted an extensive individual voir dire of forty-four prospective jurors. The trial court, defense counsel and prosecutor probed into the effect of the media on the veniremen. Of the forty-four prospects, twelve were excused for cause. The remaining prospective jurors were again questioned on the media coverage surrounding the victim’s death. Each juror stated that he or she could disregard any opinions formed from the media and render a verdict based on the evidence presented at trial. This extensive voir dire protected the appellant from the taint of community prejudice. Stafford v. State, 731 P.2d 1372 (Okl.Cr.1987).

There was no indication of inflamed community sentiment or juror impropriety during the course of the trial to counter the jurors’ impartiality. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). There is nothing in the record to show that the appellant did not receive a fair and impartial trial. Brinlee, supra.

Ill

In his third assignment of error the appellant contends that he was improperly convicted of Rape in the First Degree. We find that there was sufficient evidence to conclude that the appellant aided and abetted in the commission of the crimes.

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

Related

Williams v. State
2008 OK CR 19 (Court of Criminal Appeals of Oklahoma, 2008)
Powell v. State
2000 OK CR 5 (Court of Criminal Appeals of Oklahoma, 2000)
Torres v. States
1998 OK CR 40 (Court of Criminal Appeals of Oklahoma, 1998)
Conover v. State
933 P.2d 904 (Court of Criminal Appeals of Oklahoma, 1997)
Conoyer v. State
933 P.2d 904 (Court of Criminal Appeals of Oklahoma, 1997)
Cannon v. State
1995 OK CR 45 (Court of Criminal Appeals of Oklahoma, 1995)
Spears v. State
1995 OK CR 36 (Court of Criminal Appeals of Oklahoma, 1995)
Hackney v. State
1994 OK CR 29 (Court of Criminal Appeals of Oklahoma, 1994)
Allen v. State
862 P.2d 487 (Court of Criminal Appeals of Oklahoma, 1993)
McArthur v. State
1993 OK CR 48 (Court of Criminal Appeals of Oklahoma, 1993)
Barnett v. State
1993 OK CR 26 (Court of Criminal Appeals of Oklahoma, 1993)
McBrain v. State
1988 OK CR 218 (Court of Criminal Appeals of Oklahoma, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
1988 OK CR 218, 763 P.2d 121, 1988 Okla. Crim. App. LEXIS 229, 1988 WL 103993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbrain-v-state-oklacrimapp-1988.