Clayton v. State, F-81-590
| Decision Date | 07 September 1984 |
| Docket Number | No. F-81-590,F-81-590 |
| Citation | 695 P.2d 3 |
| Parties | Barry C. CLAYTON, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Barry C. Clayton, was charged in separate counts of Attempted Oral Sodomy in violation of 21 O.S.1981, §§ 44 and 886, and Burglary in the First Degree in violation of 21 O.S.1981, § 1431, in the Oklahoma County District Court, Case No. CRF-80-3487. The jury returned verdicts of guilty on both counts but could not agree on the assessment of punishment. The trial court imposed judgments in accordance with the jury's verdicts and set the sentences at three (3) years' imprisonment for Attempted Oral Sodomy and fifteen (15) years' imprisonment for Burglary I. From these judgments and sentences, the appellant has perfected his appeal.
In the early morning hours of August 30, 1980, G.L.R. awoke to discover a black male, later identified as the appellant, on top of her in her bed. A struggle ensued during which, according to the victim's testimony, the man attempted to force his face into her pubic area in order to commit oral sodomy. As the struggle continued, G.L.R. managed to reach under a table near the bed, grab her pistol and fire it at the appellant, wounding him in the abdominal area. At this point, the appellant grabbed a pillow, clutched it over the wound and stated that he was leaving because he was dying. G.L.R. turned on the light and, while still holding the gun, backed down a hallway to the kitchen to call the police. Appellant followed her to the kitchen and then left through the garage door. According to the victim, the house had been locked and secured before she went to bed and she did not give permission to the appellant to enter the house. The appellant testified that G.L.R. voluntarily let him come into the house.
Judge William Allen conducted a preliminary hearing on October 13, 1980, and bound the appellant over for trial on the charges of attempted oral sodomy and burglary in the first degree. The minute order regarding the October 20th arraignment, however, reflects that the appellant pled not guilty to oral sodomy and second degree burglary. Two days later the district attorney filed an amended information that reflected the charges for which the appellant was actually bound over. The appearance docket indicates that when the case was sent to Judge Jack Parr for trial on December 15, 1980, the judge remanded the case for further preliminary hearing. The appellant alleges that the hearing held on January 28, 1981, pursuant to the remand did not constitute a hearing at all as Judge Allen bound the appellant over for trial again without hearing additional evidence.
In both his first and fifth assignments of error, the appellant contends the trial court erred in denying another preliminary hearing on the first degree burglary charge. It appears to this Court that the change in the charges noted on the October 20th arraignment were due to a clerical error, which possibly stemmed from confusing this case with another in which the appellant was charged with rape and second degree burglary. In any event, even if Judge Allen relied on his memory of the first preliminary hearing as appellant alleges, there was no error as the transcript of the hearing reflects that Judge Allen properly found that the evidence was sufficient to bind the appellant over for trial on first degree burglary and attempted oral sodomy.
The appellant claims in his next assignment of error that the trial court erred in admitting State's Exhibits one through fifteen because the trial court, rather than the State, laid the foundation for their admission. When defense counsel objected to the admission for these exhibits on the basis that the photographs had not been properly identified, the court did question the witness about the accuracy of the pictures' portrayals, but the State had already laid the proper foundation by ascertaining that the pictures accurately reflected and portrayed the conditions of the subject matter on the day in question. See ...
To continue reading
Request your trial
-
Snow v. State
...to prove the crime charged. Clifton v. State, 737 P.2d 946 (Okl.Cr.1987); McLeod v. State, 725 P.2d 877 (Okl.Cr.1986); Clayton v. State, 695 P.2d 3 (Okl.Cr.1984). When, as here, both direct and circumstantial evidence support the jury's verdict, the standard of review is whether the evidenc......
-
Post v. State
...unnatural sex acts including copulation per os between females [Warner v. State, 489 P.2d 526 (Okl.Cr.1971) ], cunnilingus [Clayton v. State, 695 P.2d 3 (Okl.Cr.1984) ], fellatio [ Ex Parte DeFord, 14 Okl.Cr. 133, 168 P. 538 (1917) ], and rectal coitus (copulation per anus) [Berryman v. Sta......
-
McBrain v. State
...v. State, 713 P.2d 18 (Okl.Cr.1986); Glass v. State, 701 P.2d 765 (Okl.Cr.1985); Golden v. State, 695 P.2d 6 (Okl.Cr.1985); Clayton v. State, 695 P.2d 3 (Okl.Cr.1984). See also Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 The appellant cites Post v. State, 715 P.2d 1105 (O......
-
Strube v. State
...province of the jury to weigh the evidence and determine the facts. Renfro v. State, 607 P.2d 703, 705 (Okl.Cr.1980); Clayton v. State, 695 P.2d 3, 5-6 (Okl.Cr.1985); Corley v. State, 713 P.2d 12, 14 (Okl.Cr.1985); Kyle v. State, 722 P.2d 1218, 1219 (Okl.Cr.1986); Shipp v. State, 725 P.2d 1......
-
Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
...Young v. State, 531 S.W.2d 560 (Tenn. 1975)(adult: male forced 14 year old female to submit to cunnilingus). 1977-1986 Clayton v. State, 695 P.2d 3 (Okla. Crim. App. 1984) (adult male accused of attempting to engage in cunnilingus with an adult female during the course of a Commonwealth v. ......