Boyd v. State

• Decision Date: 18 November 1977
• Docket Number: No. F-77-306,F-77-306
• Citation: 1977 OK CR 322,572 P.2d 276
• Parties: James D. BOYD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 276

572 P.2d 276

James D. BOYD, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-306.

Court of Criminal Appeals of Oklahoma.

Nov. 18, 1977.

An appeal from the District Court, Oklahoma County; Charles L. Owens, judge.

James D. Boyd, appellant, was convicted of the offense of Rape in the First Degree; was sentenced to ninety-nine (99) years' imprisonment, and appeals. AFFIRMED.

John T. Elliott, Public Defender, Frank Muret, Asst. Public Defender, Oklahoma County, for appellant.

Larry Derryberry, Atty. Gen., Harold T. Garvin, Jr., Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Appellant, James D. Boyd, hereinafter referred to as defendant, was charged in the District Court, Oklahoma County, Case No. CRF-76-2187, with the offense of Rape in the First Degree, in violation of 21 O.S.1971, § 1114. The defendant was tried by a jury, convicted and sentenced to imprisonment in the State penitentiary for a term of ninety-nine (99) years. From said judgment and sentence, the defendant has perfected a timely appeal to this Court.

Briefly stated, the facts adduced at trial are as follows. During the early morning hours of June 2, 1976, the defendant broke into the apartment of the prosecutrix, Mina Slaton, a 76-year-old widow. He removed her clothes, threw her onto the bed and raped her. She suffered several abrasions around the hymenal ring (the opening to the vagina), which a doctor stated at trial indicated "that an instrument too large to fit in that area was forced there." During the struggle, in which the prosecutrix was struck several times about the head and body, her pet dog jumped on top of the defendant, allowing her to effect an escape. The prosecutrix ran to a neighbor's house and asked that the police be notified.

Upon the arrival of the police, the prosecutrix described her assailant, and was thereafter taken to a hospital for examination. During the subsequent search of the building in which Mrs. Slaton resided, the defendant was found sleeping, clothed only in his underwear in a purportedly unoccupied apartment. The crotch of his underwear bore what appeared to be a blood stain, and his discarded clothing fit the general description given by the prosecutrix. The defendant was placed under arrest.

The defendant took the stand in his own behalf and denied ever having seen the prosecutrix before, much less having raped her.

The defendant's first assignment of error is that the defendant was prejudiced by the alleged evidentiary harpoon by the prosecutrix, interjecting evidence of other crimes. However, we note that the testimony objected to by the defendant was made during response to questions by counsel for the defense during cross-examination and was drawn out by said attorney himself in an apparent attempt to attack the credibility of the prosecutrix' identification of the defendant. Furthermore, a review of the trial transcript indicates that no objection was made during trial to this testimony by the defendant's counsel, who instead attempted to utilize the testimony in question to his own ends. In Campbell v. State, Okl.Cr., 462 P.2d 349, 350 (1969), this Court ruled that:

" . . . It is also observed from the record, that the testimony defendant complains of in his brief was not timely objected to by defendant, during his trial. It comes too late to enter an objection, after the witness had completely unfolded his testimony . . ."

We find this issue has not been properly preserved for review by this Court.

As his second assignment of error, the defendant asserts that the trial court committed error by instructing the jury on attempted rape in the first degree. He contends that it is not a lesser included offense under the facts of this case. However, it appears that we need not reach this issue because a review of the record reveals that the defendant failed to lodge a timely objection and, thus, failed to preserve this issue for review. See, Lemmon v. State, Okl.Cr., 538 P.2d 596 (1975). Furthermore, in view of the fact that the defendant was not convicted for the lesser included offense of attempted rape, even if error were found we would find it difficult to discover any prejudice to the defendant in this case.

The defendant next assigns as error the trial court's failure to instruct the jury on voluntary intoxication as it relates to the intent to commit the offense. The general rule in Oklahoma as stated in 21 O.S.1971, § 153, is that:

"No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition."

Furthermore, in Kitchen v. State, 61 Okl.Cr. 435, 69 P.2d 411, 415 (1937), this Court specifically ruled that short of insanity:

"The principle is everywhere recognized that voluntary intoxication is no justification or excuse for crime, and is no excuse for rape, though carried to the extent of producing incapacity to control the mind and will."

However, the defendant contends that while voluntary intoxication does not constitute an excuse for a crime, it does relate to the degree of intent the person maintains at the time the act is committed. This might be true concerning crimes involving specific intent, such as premeditation in murder or felonious intent in larceny. However, there is no such special intent requirement for rape. We agree with the general statement in 75 C.J.S. Rape § 9, concerning the completed crime of rape, that:

"While a general criminal intent is involved in the crime of rape, no intent is requisite other than that evidenced by the doing of the acts constituting the offense."

Specific intent is involved in an offense such as attempted rape or assault with intent to rape where rape itself is not consummated. In Thomas...