Wade v. State

• Decision Date: 04 November 1976
• Docket Number: No. F--76--518,F--76--518
• Citation: 556 P.2d 275
• Parties: Forrest Kinser WADE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 275

556 P.2d 275

Forrest Kinser WADE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--518.

Court of Criminal Appeals of Oklahoma.

Nov. 4, 1976.

Rehearing Denied Nov. 23, 1976.

An appeal from the District Court, Cherokee County; William H. Bliss, judge.

Forrest Kinser Wade was convicted of the crime of Rape in the First Degree; his punishment was fixed at twenty (20) years' imprisonment, and he appeals. AFFIRMED.

Jon M. Masters, Tahlequah, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Kenneth Lisle, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Forrest Kinser Wade, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Cherokee County, Case No. CRF--76--5, for the offense of Rape in the First Degree, in violation of 21 O.S.1971, § 1114. His punishment was fixed at twenty (20) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

At the trial, Joy Bolton testified that on December 1, 1975, the defendant came to her house and asked to use the telephone because he was having car trouble. She admitted defendant into the house and dialed a service station number for him. Defendant put his hand over her mouth and told her to hang up the telephone. She refused and defendant struck her on the head, took her into a bedroom, but her again and tore off her clothes. Defendant undid his jeans and put out his penis. He attempted penetration on several occasions. She testified, 'I could feel his penis in my female parts.' (Tr. 135) Defendant tied her hands and feet together with neckties and performed acts of oral and anal sodomy. She convinced defendant that she would not tell if he would let her go. She drove defendant to a service station, he got out of the car and she 'floorboarded it.' (Tr. 141) She went to her husband's office and he contacted a Deputy Sheriff. Defendant was arrested in front of her house trying to get his car started.

Dr. Donald Olson, Jr. testified that he examined Joy Bolton on December 1, 1975 and found numerous, fresh abrasions about her person.

Deputy Sheriff Jack Goss testified that he observed the defendant about 9:45 a.m. on December 1, 1975. Defendant approached him and asked if he had any jumper cables. Shortly thereafter he had a conversation with Mr. and Mrs. Bolton. He proceeded to the Bolton residence and arrested defendant. He identified neckties which he found in the southwest bedroom of the Bolton residence, and a purple letter-jacket which was found in defendant's car.

Charlie Dreadfulwater testified that on the morning in question the defendant approached him and asked for a ride. They picked up some jumper cables and proceeded to the Bolton residence. As they tried to start the car, Deputy Goss arrived and arrested the defendant.

Deputy Sheriff Blake Stanley testified that he took several pictures at the Bolton residence of blood stains, neckties and Mrs. Bolton.

Janey Hendrix testified that she took pictures of the victim at Dr. Olson's office.

Gene Bolton testified that his wife came to his office at approximately 10:00 a.m. and reported that she had been beaten and raped. He had a fellow employee call the Sheriff's Office and arrange a meeting at the Phillips 66 Station at Tsa-La-Gi. He had a conversation with Deputy Goss and they proceeded to the Bolton residence. Defendant and Charlie Dreadfulwater were working on defendant's car. He further testified that he took his wife to the District Attorney's Office and to Dr. Olson.

For the defense, Bertrum Bobb and Elizabeth Coffey testified that defendant had a good reputation in the community.

Defendant testified that he was nineteen years old and a member of the United States Air Force; that on the evening of November 30th, he swerved to miss a dog and 'I just got stuck.' (Tr. 226) He spent the night in the car and the following morning went to the Bolton residence to use the phone. The numbers he called were busy and he became angry. Mrs. Bolton grabbed for the phone and he hit her, knocking her to the floor. He then helped her up and apologized. He carried her to the bedroom and laid her on the bed. He continued to apologize and she agreed to take him to the service station. She drove off and left him at the service station. He denied any sexual attack on Mrs. Bolton.

Defendant first urges that the trial court was without jurisdiction because he was unlawfully arrested. We have previously held that the fact that an arrest may have been unlawful does not affect the jurisdiction of the Court, nor does it preclude trial of the defendant for the offense. See Hart v. State, Okl.Cr., 493 P.2d 846. We, therefore, find this assignment of error to be without merit.

Defendant next contends that the inventory search of his automobile made subsequent to an unlawful arrest should have been suppressed. The evidence obtained as a result of the search was a jacket. We do not deem it necessary to discuss the legality of the arrest. Assuming arguendo that the jacket was seized illegally, we fail to see how same prejudiced the defendant in view of the defendant's admission that he was in the house and that he struck her. The only relevancy of the jacket was to place the defendant inside the house. It had no bearing on whether or not defendant raped the prosecutrix. In Constabile v. State, Okl.Cr., 513 P.2d 588 (1973), we stated:

'. . . Therefore, the introduction of the sample though properly inadmissible due to the failure to establish a complete chain of possession was cumulative evidence. This Court has held on many occasions that the admission of evidence which is merely cumulative will not be held reversible error even though the evidence is inadmissible. . . .'

Defendant asserts, as his third assignment of error, that he was denied a fair trial because of the actions of the Special Prosecutor. We need only observe that the record reflects that the conduct of the Special Prosecutor was well within the rules of conduct, and non-prejudicial toward the defendant. In Hobson v. State, Okl.Cr., 280 P.2d 735 (1955), in the sixth paragraph of the Syllabus, we stated:

'Attorney employed specially by injured party to assist county attorney in the prosecution is at all times subservient to the county attorney and must work under the direction and supervision of the duly elected county attorney and is subject to all the rules which govern the conduct of the attorney. . . .'

We, therefore, find this assignment of error to be without merit.

Defendant next contends that the trial court erred in denying his application for a change of venue. We have carefully examined the voir dire examination and find that each of the jurors were thoroughly examined as to their qualifications by both the defendant and the State, and each juror selected affirmatively stated that he or she could be fair and impartial jurors. Under such circumstances the trial court did not err in denying defendant's application for change of venue. See Russell v. State, Okl.Cr., 528 P.2d 336 (1974).

Defendant asserts, as his fifth assignment of error, that 'Appellant was Charged and Tried and Instructions were given upon the Charge of Rape, First Degree, upon an Information which alleged Second Degree Rape, as properly raised by Demurrer of Defense Counsel.' The Information states, in part, as follows:

'. . . FORREST K. WADE . . ., did then and there unlawfully, wilfully and feloniously with the use of force and violence and by means of threats of immediate and great bodily harm to one JOY BOLTON, a female person not the wife of the said defendant, overcome all resistance on the part of the said JOY BOLTON, and did then and there rape, ravish, carnally know and have sexual intercourse with said female against her will and consent, in violation of 21 O.S.A. 1114 . . ..'

Defendant argues that the omission in the Information of the words 'accompanied by apparent power of execution' charges only the offense of Rape in the Second Degree. In Strunk v. State, Okl.Cr., 450 P.2d 216 (1969), wherein the defendant contended that the trial court erred in allowing the prosecution to amend the Information by inserting the words 'accompanied by apparent power of execution,' this Court, in finding that these words went only to form rather than substance, stated:

'In the instant case the Information, prior to its amendment, was sufficient to charge the offense of Rape in the First Degree and not Rape in the Second Degree, as contended by the defendant.'

Defendant asserts, as his sixth assignment of error, that the trial court erred in admitting evidence of other crimes. Defendant argues that the testimony of Mrs. Bolton as to other sexual acts was for the purpose of: '(1) providing a substitute for an essential element of the crime charged; and (2) to inflame and prejudice the jury.' In Moulton v. State, Okl.Cr., 476 P.2d 366 (1970), in the first paragraph of the Syllabus, we stated:

'The general rule in this state is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial is inadmissible. However, evidence of separate and similar offenses is admissible when it is material and proper to show (1) motive, (2) intent, (3) absence of mistake or accident, (4) identity of person charged with the commission of the crime for which an accused is put on trial, and (5) common scheme or plan embracing the two or more crimes so related to each other that proof of one tends to establish the other.'

We further observe that the testimony of the prosecutrix as to other sexual acts were admissible as part of the res gestae. In Martin v. State, Okl.Cr., 449 P.2d 275 (1969), in the fifth paragraph of the Syllabus, we stated:

'It is not...