732 P.2d 885 (Okla.Crim.App. 1987), F-84-754, Casey v. State

Docket Nº:F-84-754.
Citation:732 P.2d 885
Party Name:Michael Earl CASEY, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:January 21, 1987
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 885

732 P.2d 885 (Okla.Crim.App. 1987)

Michael Earl CASEY, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-84-754.

Court of Criminal Appeals of Oklahoma.

January 21, 1987.

Rehearing Denied March 10, 1987.

Rebecca L. Adams, Sand Springs, for appellant.

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

OPINION

BUSSEY, Judge:

The appellant, Michael Earl Casey, was convicted in the District Court of Tulsa

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County, Case No. CRF-83-4377, of Rape in the First Degree and Forcible Sodomy, for which he received sentences of seven and five years' imprisonment, respectively, and he appeals raising six assignments of error.

At about 3:25 a.m. on December 10, 1983, Officers Rudick and Middleton of the Tulsa Police Department were summoned to a residential area in southeast Tulsa where they observed an automobile parked at the side of the street. Upon approaching the vehicle Office Rudick observed the appellant sitting clothed in only an unbuttoned shirt, and the nude prosecutrix lying in the front seat with her face in his lap, apparently performing oral sex upon the appellant. Rudick ordered the two to get dressed and get out of the vehicle. Both exited the car immediately, the prosecutrix stating, "I've been raped," and the appellant replying "I can't believe this is happening.... I've known her for over a year, she's done this to me before." Rudick observed a large red mark on her hip. After both put their clothing on, Officer Rudick took the appellant to his patrol car and Officer Middleton took the prosecutrix to his. Rudick explained to the appellant that they had received calls that naked people were running around a car in the area, and that the car had been running for some time. The appellant stated that they had never been out of the car and that he had been taking the prosecutrix home when they became sexually active, and so pulled over to "have sex." After questioning him briefly he stated that all of the acts were consensual. After Rudick consulted with Officer Middleton, he determined that the prosecutrix had told a quite different story, and checking for corroborative evidence, he found dried grass on the car seat and the floorboard, blood stains on the car seat, a Great Escape Club card in the adjacent yard, and an area in the yard near a tree where the grass appeared to be pressed down by an object of weight. The appellant was unable to give the officers the name of the prosecutrix and so he was arrested.

The prosecutrix testified that she had been waiting in below freezing weather outside the Great Escape Club, after it had closed at 2:00 a.m. for her sister to return. The appellant drove up and offered her a ride home, but instead of taking her home, he drove around with her. Appellant asked her if she ever wanted to see her child again. When he finally stopped the car, she ran to a house, knocked on the door and yelled for help. Appellant chased and caught her, dragged her to some shrubs and raped her for the first time. He then placed her back in the car, raped and sodomized her.

A resident of the neighborhood testified that he observed the appellant, who had the prosecutrix by the arms, pushing her into a car, and that the appellant was clothed only in a shirt. Another resident testified she had heard someone "scream, 'No,' " and after her husband investigated and observed the car, he called the police.

The appellant testified that he had observed the prosecutrix standing outside the Great Escape Club and decided to give her a ride home. When she got in she was too intoxicated to tell him an address and so he drove around trying to decide what to do. He finally stopped the car. After some discussion they became aroused and while removing their clothes she suddenly decided to get out of the car. As she was only partially clothed, he got out to help her back into the car. He further testified that they never had intercourse.

Medical testimony revealed that a vaginal swab had enzymes and antigens which were indicative of seminal fluid. Lab tests revealed that seminal fluid was found on the blouse of the prosecutrix, and semen was found on the car seat. Samples of the appellant's blood and saliva revealed that he is blood group A and is a secreter which is consistent with the antigen A found on the vaginal swab, the blouse, and on the car seat. Testing of the prosecutrix indicated she does not secrete in other body fluids and therefore could not be responsible for the antigen found in the samples.

As his first assignment of error the appellant argues that the sodomy statute

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was improperly applied to him. He urges that because the legislature changed the title of the statute to "Forcible Sodomy," and because sodomy at common law was restricted to anal copulation, Berryman v. State, 283 P.2d 558 (Okl.Cr.1955), that he was improperly charged and convicted of forced oral copulation. The applicable statute, 21 O.S.Supp.1984, § 888, provides:

Any person who forces another person to engage in the detestable and abominable crime against nature, pursuant to Section 886 of this title, upon conviction, is guilty of a felony punishable by imprisonment in the penitentiary for a period of not more than twenty (20) years. This crime may also be known as forcible sodomy.

As the act prohibited is "the detestable and abominable crime against nature," and the statute refers to 21 O.S.1981, § 886, which uses the identical term and has been construed to include oral copulation, see Clayton v. State, 695 P.2d 3 (Okl.Cr.1985), we must conclude that the legislature intended this statute to be given the same construction. We note further that Section 888 provides that the prohibited act may also be known as forcible sodomy. Therefore, under Oklahoma law,...

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