792 P.2d 1186 (Okla.Crim.App. 1990), F-87-790, Virgin v. State

Docket Nº:F-87-790.
Citation:792 P.2d 1186
Party Name:Herbert A. VIRGIN, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:May 11, 1990
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 1186

792 P.2d 1186 (Okla.Crim.App. 1990)

Herbert A. VIRGIN, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. F-87-790.

Court of Criminal Appeals of Oklahoma.

May 11, 1990.

Page 1187

An Appeal from the District Court of Oklahoma County; James L. Gullett, District Judge.

HERBERT A. VIRGIN, appellant, was convicted in the District Court of Oklahoma County, Case No. CRF-87-201, of Forcible Oral Sodomy (Count I), Lewd or Indecent Acts with a Child Under the Age of Sixteen (Count II), and Forcible Anal Sodomy (Count III), each After Former Conviction of Two or More Felonies. He was sentenced to imprisonment for one hundred fifty (150) years on each count, with Counts I and II ordered to be served concurrently and Count III ordered to be served consecutively. From these judgments and sentences, appellant appeals to this Court. Appellant's conviction for Forcible Anal Sodomy (Count III) is REVERSED and REMANDED with instructions to DISMISS. The judgments and sentences for conviction of Forcible Oral Sodomy (Count I) and Lewd or Indecent Acts with a Child Under the Age of Sixteen (Count II) are hereby AFFIRMED.

Lee Ann Jones Peters, Asst. Appellate Public Defender, Oklahoma City, for appellant.

Robert S. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

Herbert A. Virgin, appellant, was tried by jury for the crimes of Forcible Oral Sodomy (Count I), Forcible Anal Sodomy (Count III), both in violation of 21 O.S.1981, § 886 and 21 O.S.Supp.1982, § 888, and Lewd or Indecent Acts with a Child Under the Age of Sixteen (Count II), in violation of 21 O.S.Supp.1985, § 1123, each After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CRF-87-201. The jury returned a verdict of guilty on each count and set punishment at one hundred fifty (150) years imprisonment per count. The trial court sentenced appellant accordingly, ordering that Counts I and II be served concurrently and Count III to be served consecutively. From these judgments and sentences, appellant has perfected this appeal.

In October of 1987, Marilyn W. and her two daughters, C.W., age 8, and S.E., moved into her cousin Meda W.'s two-bedroom house. Meda and appellant, her fiance, occupied one bedroom in the home while Marilyn and the two girls slept in the other bedroom. Marilyn...

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