Tindell v. State

Court of Criminal Appeals of Oklahoma

Tindell v. State

1985 OK CR 88, 705 P.2d 692, 1985 Okla. Crim. App. LEXIS 254

CourtCourt of Criminal Appeals of Oklahoma

DecidedJuly 16, 1985

DocketNo. F-83-469

StatusPublished

Cited by1 cases

This text of 1985 OK CR 88 (Tindell 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.

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Tindell v. State, 1985 OK CR 88, 705 P.2d 692, 1985 Okla. Crim. App. LEXIS 254 (Okla. Ct. App. 1985).

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Opinion

OPINION

PARKS, Presiding Judge:

The appellant, Dewitt Tindell, was convicted of Lewd Molestation in the District Court of Pushmataha County, Case No. CRF-82-27. Appellant was sentenced to eight (8) years imprisonment. We affirm.

On the night of February 27, 1982, eight year old D.Y. was awakened when the appellant, her maternal grandfather, entered her bedroom and sat down on the bed. Appellant pulled down D.V.’S pajama pants and began fondling her genitals. Appellant warned the child not to tell anyone, and returned to his bedroom. The next day D.V. told her paternal grandmother, who contacted the District Attorney’s Office.

In his first assignment of error, appellant contends he was denied a fair and impartial trial when the prosecutor made improper comments during closing arguments. We note, however, that none of the comments were met with an objection at trial, and, accordingly, are not properly preserved for appeal. Freeman v. State, 681 P.2d 84 (Okl.Cr.1984). Furthermore, the comments are not so improper as to warrant modification of appellant’s sentence, Id.

Appellant’s second assignment of error involves a claim that his sentence was improperly determined by the jury through use of a quotient verdict. The facts show that punishment was initially determined when each member of the jury wrote down a number of years, the numbers were added and the sum was divided by twelve. Although the evidence is conflicting, the trial court found the jurors did not agree to be bound by the quotient as their assessment of punishment. In Neighbors v. State, 56 Okl.Cr. 108, 34 P.2d 290 (1934), we disapproved the use of quotient verdicts, but added a conviction would not be set aside on this basis “where there is no proof that the jurors agreed to be bound beforehand by the result thus obtained.” Id. at 110, 34 P.2d at 291. The trial court found the jurors did not agree to be so bound, and this assignment of error is therefore without merit.

Accordingly, the judgment and sentence of the District Court should be, and hereby is, AFFIRMED.

BRETT, J., concurs in results. BUSSEY, J., concurs.

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OPINION

PARKS, Presiding Judge:

The appellant, Dewitt Tindell, was convicted of Lewd Molestation in the District Court of Pushmataha County, Case No. CRF-82-27. Appellant was sentenced to eight (8) years imprisonment. We affirm.

On the night of February 27, 1982, eight year old D.Y. was awakened when the appellant, her maternal grandfather, entered her bedroom and sat down on the bed. Appellant pulled down D.V.’S pajama pants and began fondling her genitals. Appellant warned the child not to tell anyone, and returned to his bedroom. The next day D.V. told her paternal grandmother, who contacted the District Attorney’s Office.

In his first assignment of error, appellant contends he was denied a fair and impartial trial when the prosecutor made improper comments during closing arguments. We note, however, that none of the comments were met with an objection at trial, and, accordingly, are not properly preserved for appeal. Freeman v. State, 681 P.2d 84 (Okl.Cr.1984). Furthermore, the comments are not so improper as to warrant modification of appellant’s sentence, Id.

Appellant’s second assignment of error involves a claim that his sentence was improperly determined by the jury through use of a quotient verdict. The facts show that punishment was initially determined when each member of the jury wrote down a number of years, the numbers were added and the sum was divided by twelve. Although the evidence is conflicting, the trial court found the jurors did not agree to be bound by the quotient as their assessment of punishment. In Neighbors v. State, 56 Okl.Cr. 108, 34 P.2d 290 (1934), we disapproved the use of quotient verdicts, but added a conviction would not be set aside on this basis “where there is no proof that the jurors agreed to be bound beforehand by the result thus obtained.” Id. at 110, 34 P.2d at 291. The trial court found the jurors did not agree to be so bound, and this assignment of error is therefore without merit.

Accordingly, the judgment and sentence of the District Court should be, and hereby is, AFFIRMED.

BRETT, J., concurs in results. BUSSEY, J., concurs.

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1985 OK CR 88, 705 P.2d 692, 1985 Okla. Crim. App. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tindell-v-state-oklacrimapp-1985.

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