Post v. State

• Decision Date: 26 February 1986
• Docket Number: No. F-84-303,F-84-303
• Parties: James Lester POST Jr., Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1105

715 P.2d 1105

James Lester POST Jr., Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-303.

Court of Criminal Appeals of Oklahoma.

Feb. 26, 1986.

Rehearing Denied April 14, 1986.

Thomas Purcell, Asst. Public Defender, for appellant.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

The appellant, James Lester Post, Jr., was charged by Information in the District Court of Rogers County, Case No. CRF-83-17, for the offense of Rape, two counts of the Crime Against Nature, and Maiming, After Former Conviction of a Felony. A jury acquitted the appellant of Rape, but convicted him for the two counts of Crime Against Nature, and Maiming. The jury recommended a sentence of ten (10) years on each count of the Crime Against Nature, and fifteen (15) years imprisonment for Maiming. We reverse.

According to the testimony produced by the State, the alleged victim, H.C., went to the Red Eye Saloon in Claremore, Oklahoma on the morning of January 7, 1983. While at the saloon, she met the appellant, who invited her to his house to watch television and drink beer. H.C. accepted the appellant's invitation. The pair left the bar, purchased some beer at a nearby store, and went to appellant's home. When they arrived at the house, appellant allegedly demanded sex. H.C. claimed she was forced, at knife-point, to have sex with the appellant. She also claimed appellant anally sodomized her and forced her to commit an act of fellatio. As appellant sexually assaulted her, he also repeatedly beat her and caused a severe injury to her eye, according to H.C.'s testimony. Finally, the appellant allowed H.C. to dress, and they left the house together. H.C. and the appellant eventually separated, and H.C. went to a friend's house and called her husband.

Dr. Raymond Townsend, an ophthalmologist, testified H.C. was blinded in the eye, which eventually was surgically removed. He also testified that H.C. had previously received eye surgery, which had rendered her eyes highly susceptible to injury. A forensic chemist testified that swabs taken during a rape examination of H.C. indicated the presence of sperm in the rectum.

Appellant testified that he met H.C. at the bar, and asked her to go to the house with him. He claimed all of the sexual acts, including anal intercourse and oral copulation, were voluntarily performed by H.C. After completing these sex acts, the appellant fell asleep. He awoke suddenly when he discovered H.C. going through his pants pockets. Appellant testified he believed H.C. was attempting to steal his money, and he struck her in anger several times, though he did not intend to injure her. He and H.C. then dressed and left the house together. After walking several blocks together, H.C. asked that appellant not accompany her any further, as she would not be able to explain his presence to her husband.

On his appeal to this Court, the appellant raises seven assignments of error challenging each of the convictions, and the sentences imposed.

I.

We first deal with appellant's claim that his convictions for the Crime Against Nature, 21 O.S. 1981, § 886, ¹ rest on an unconstitutional basis. Appellant has asserted his claim on two grounds: First, he claims the statute is unconstitutionally vague. Second, he claims the statute, as applied to non-violent consensual activity between adults in private, violates his right to privacy under the United States Constitution. Because we agree with appellant's second claim, we need not address the first.

In this case, as noted above, the jury was presented with evidence alleging two entirely different scenarios. The prosecutrix, by and through the State, presented testimony that the appellant used threats and violence to rape, sodomize, and force her to commit an act of fellatio. The appellant, however, claimed the prosecutrix was a willing participant in the sexual activities which occurred on the day in question. He claimed the eye injury was inflicted after the sexual activities had ceased. Appellant was charged with two counts alleging commission of the Crime Against Nature, one count of Rape, and a count of Maiming. By its statutory language, the Crime Against Nature prohibits consensual, as well as nonconsensual, acts of unnatural copulation. See Slaughterback v. State, 594 P.2d 780 (Okl.Cr.1979). Accordingly, the jury was instructed that consensual intercourse would not constitute rape, ² but no mention was made of consent as a factor in the Crime Against Nature. During its deliberations the jury sent a note asking the trial court whether the Crime Against Nature is "a crime with or without consent in the State of Oklahoma? [sic]". The trial court instructed the jury that "consent is not an element [of the Crime Against Nature], nor is the crime less of a crime if committed with a consenting person." The jury returned a verdict of guilty on both counts of the Crime Against Nature, but acquitted the appellant on the Rape charge. Appellant alleges the convictions for the Crime Against Nature cannot be permitted to stand, as they are violative of his right to privacy. Although we previously rejected a similar claim in Warner v. State, 489 P.2d 526 (Okl.Cr.1971), we agree that more recent decisions of the United States Supreme Court lend support to appellant's view.

The right to privacy asserted by this appellant is not explicitly mentioned either in the text or amendments to the Federal Constitution; yet it has been called "the most comprehensive of rights and the right most valued by civilized man." Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed.2d 944 (1928) (Brandeis, J., dissenting). This right, as we understand it, is the "right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by governmental restraint..." People v. Onofre, 51 N.Y.2d 476, 485, 415 N.E.2d 936, 939, 434 N.Y.S.2d 947, 949 (1980). Accord Lovisi v. Slayton, 363 F.Supp. 620, 625-26 (E.D.Va.1973), aff'd, 539 F.2d 349 (4th Cir. 1976). The modern judicial conception of constitutional privacy originated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In Griswold, the Supreme Court found the existence of an implicit constitutional right of privacy in the "penumbras" of various constitutional provisions. Writing for the Court, Justice Douglas declared "that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Id. at 484, 85 S.Ct. at 1681. This implicit guarantee of privacy makes "fully meaningful" the express rights contained in the document. ³ Justice Goldberg, joined by the Chief Justice and Justice Brennan, specially concurred "to emphasize the relevance of [the Ninth] Amendment to the Court's holding." ⁴ Id. at 487, 85 S.Ct. at 1683 (Goldberg, J., concurring).

When we first were faced with this issue of extramartial sexual privacy in Warner v. State, 489 P.2d 526, we were limited in consideration of Supreme Court cases to Griswold v. Connecticut, supra. Griswold held, based on the principles explained above, that the State could not constitutionally regulate the distribution of contraceptives to married persons. Certain language in the opinion indicated that this "right to privacy" was limited to decisions made, and acts committed, within the marital relationship. Justice Douglas had written:

We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Id. at 486, 85 S.Ct. at 1682. We accordingly held that "the United States Supreme Court, in the landmark case of Griswold v. State of Connecticut, supra, does not prohibit the state's regulation of sexual promiscuity or misconduct between non-married persons." Warner v. State, 489 P.2d at 528.

We are now informed that "the outer limits" of the right to privacy "have not been marked by the Court." Carey v. Population Servs Int., 431 U.S. 678, 684, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). Indeed, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) indicates to us that the constitutional right to privacy, which at first appeared to be family-based, affords protection to the decisions and actions of individuals outside the marriage union. See also Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (right to abortion cannot be regulated absent a compelling state interest). In Eisenstadt, the Court banned, as unconstitutional, Massachusetts' regulation of contraceptives to single adults. Although the Court's holding was based primarily on equal protection grounds, the Court also relied on the right to privacy, and wrote:

It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and a heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Id. at 453, 92 S.Ct. at 1038. Nor can it be said that, through the Eisenstadt opinion, the right to privacy is merely extended to individual decisions regarding procreative choice. Such a statement would ignore the...