Fox v. State

• Decision Date: 23 November 1976
• Docket Number: No. F--76--299,F--76--299
• Citation: 556 P.2d 1281,1976 OK CR 307
• Parties: Russell Gary FOX, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1281

556 P.2d 1281

Russell Gary FOX, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--299.

Court of Criminal Appeals of Oklahoma.

Nov. 23, 1976.

An appeal from the District Court, Oklahoma County; Dick S. Jones, judge.

Russell Gary Fox, appellant, was convicted for the offense of Assault and Battery with a Deadly Weapon with Intent to Kill; was sentenced to ten (10) years' imprisonment, and appeals. Judgment and sentence AFFIRMED.

Ed McConnel, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge.

Appellant, Russell Gary Fox, hereinafter referred to as the defendant, was charged in the District Court, Oklahoma County, Case No. CRF--75--1698, with the offense of Assault and Battery with a Deadly Weapon with Intent to Kill, in violation of 21 O.S.1971, § 652. He was tried before the court, after waiving his right to trial by jury, and convicted of the aforementioned crime. His punishment was fixed by the court at ten (10) years' imprisonment in the State Penitentiary. From said judgment and sentence, a timely appeal has been perfected to this Court.

The State called as its first witness, Nora Diane Kelly, the victim of the above mentioned crime. She testified that she was at a friend's apartment in Oklahoma City, Oklahoma on May 8, 1975, picking up some belongings she had left there for storage. A man she identified as the defendant was at the apartment, and he offered to help her load her vehicle. After they made one trip from the upstairs apartment, she testified as to being struck from behind as she re-entered. She ran through the small apartment being pursued by the defendant, and was struck several more times with a hammer. As she was escaping, he again struck her from behind, and she fell down the stairs, breaking her foot. She then ran across the street, to the home of an acquaintance, who summoned an ambulance and the police. Miss Kelly related spending three days in intensive care, and a total of nine days at Baptist Memorial Hospital. She further testified to continuing problems with headaches, prospective plastic surgery, and pain in her foot.

The State next called Nadalia Overstreet, the victim's mother. She testified to being called by the police and notified of the attack, and joined her daughter in the intensive care unit at Baptist Memorial Hospital. She testified to visible injuries, including multiple bruises on the victim's head, several areas where stitches had been taken, damage to the victim's lips and gums, and further contusions on the arms, neck, and body.

The State's third witness was Steve Young, an Oklahoma City Police Officer, who testified to investigating the scene of the incident. He indicated finding the victim, her head and shoulders entirely covered with blood. Upon entering the apartment, he related finding pools of blood in the entry hallway, the kitchen area, and parts of the living room.

Oklahoma City Police Officer Kelly Owens, one of the two arresting officers, next testified, and related giving the defendant the Miranda warning, and thereafter receiving a statement from the defendant that he intended to steal the victim's car. This officer noted blood on the defendant's shirt and jeans.

The State's fifth witness, John G. Hill, testified to being a member of the Oklahoma City Police Department Crime Lab on the day in question. He identified photographs taken of the scene of the crime, and also identified the hammer found at the scene, the blood stains still present.

At this time the State rested, and the defendant's demurrer to the evidence was overruled.

The defendant's only witness was Andrew Smith of San Antonio, Texas, who related being a long time acquaintance of the defendant and the defendant's family. He testified that the defendant's reputation in the community is that of being an honest, peaceable, law-abiding citizen.

The Defendant's motion for directed verdict was denied, the defendant was found guilty, and defendant's motion for new trial was denied. From the sentence of ten (10) years, the defendant's appeal is now before this Court.

The defendant's first assignment of error is that the trial court erred in permitting the victim of the assault to give testimony about her physical condition and medical treatment subsequent to the attack. We consider this to be a meritless contention, especially considering trial by jury had been waived.

It seems to us a baseless assertion that a victim of such an overt injury-producing attack should not be permitted to testify as to the extent of the injuries received. Here, the effect of the blows were not such as would require explanation or qualification by an expert witness, as they were perfectly visible and understandable by a lay person. The long established Oklahoma rule has been that in the absence of the necessity for explanation or qualification, the injuries and cause thereof need not be proved by expert testimony, Letcher v. Skiver, 99 Okl. 269, 226 P. 1029 (1924).

Further, we hold in the instant case that the trial judge, since he has the skills with which to...