McArthur v. State

• Decision Date: 26 October 1993
• Docket Number: No. F-88-986,F-88-986
• Citation: 1993 OK CR 48,862 P.2d 482
• Parties: Kenneth Dewayne McARTHUR, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 482

862 P.2d 482

Kenneth Dewayne McARTHUR, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-88-986.

Court of Criminal Appeals of Oklahoma.

Oct. 26, 1993.

Appeal From the District Court of Pottawatomie County; Glenn Dale Carter, District Judge.

Appellant, Kenneth Dewayne McArthur, was tried by jury and convicted of First Degree Rape (Count I), Robbery With a Dangerous Weapon (Count II), and Kidnapping For Purpose of Extortion (Count III) in Pottawatomie County District Court, Case No. CRF-87-297, before the Honorable Glenn Dale Carter, District Judge. Punishment was set at ninety-nine (99) years imprisonment on Count I, thirty (30) years imprisonment on Count II and ninety-nine (99) years imprisonment on Count III. The sentences were ordered to run consecutively. Count I is AFFIRMED as MODIFIED to fifty (50) years imprisonment. Count II is REVERSED and REMANDED with instructions to modify Judgment to Robbery in the First Degree and to modify Sentence to twenty (20) years imprisonment. Count III is AFFIRMED.

Rodney K. Freed, Shawnee, Trial Counsel, Allen Smith, Asst. Appellate Public Defender, Norman, Appellate Counsel, for appellant.

John G. Canavan, Asst. Dist. Atty., Shawnee, Trial Counsel, Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, appellate counsel, for appellee.

OPINION

CHAPEL, Judge.

Appellant, Kenneth Dewayne McArthur, was tried by jury and convicted of First Degree Rape (21 O.S.Supp.1986, § 1114) (Count I), Robbery With a Dangerous Weapon (21 O.S.1981, § 801) (Count II), and Kidnapping For Purpose of Extortion (21 O.S.1981, § 745) (Count III) in Pottawatomie County District Court Case No. CRF-87-297, before the Honorable Glenn Dale Carter, District Judge. Appellant was sentenced to ninety-nine (99) years imprisonment on Count I, thirty (30) years imprisonment on Count II, and ninety-nine (99) years imprisonment on Count III. The sentences were ordered to run consecutively. We affirm in part and reverse in part.

On the evening of November 9, 1987, appellant entered a Shawnee convenience store and purchased four dollars of gasoline. Moments later, appellant reentered the store telling the clerk, R.T., he had overrun the amount purchased by thirty cents. Believing appellant wished to pay the additional thirty cents, R.T. stepped behind the counter to collect the money. Appellant followed R.T. behind the counter and said, "This is a stick up." After forcing R.T. to open the cash register, appellant took the bills from it. R.T. testified that during the robbery appellant "had a bag over his hand," and that she could not see what was inside the bag. R.T. admitted that she never saw a weapon.

After the robbery, appellant forced R.T. into his car. R.T. was forced to sit on the floor board on the passenger's side with her head facing away from appellant. R.T. testified appellant held something "very hard and very sharp" to her back as he drove the car. At one point, R.T. asked appellant to stop the car and let her out. Appellant responded, "Shut up or I will split you wide open." R.T. was driven to a secluded area and raped. R.T. later identified appellant at a police line-up.

Appellant's first proposition of error raises a question of first impression for this jurisdiction. Appellant was charged under 21 O.S.1981, § 801, which provides in relevant part, "[a]ny person or persons who, with the use of any firearms or any other dangerous weapons ... attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business ... shall be guilty of a felony...." Appellant contends that the prosecution's evidence was insufficient to prove an essential element of the crime charged. Specifically, he alleges that R.T.'s testimony is insufficient to prove any weapon, much less a dangerous weapon, was used during the robbery.

It is incumbent upon the prosecution to prove each and every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The use of a firearm or dangerous weapon is an essential element of section 801. See Oklahoma Uniform Jury Instructions--Criminal (OUJI-CR) 489. Significantly, section 801 allows for the consideration of a victim's subjective belief when the weapon used is a firearm. The statute can be violated "whether the firearm is loaded or not" and forbids the use of "a blank or imitation firearm capable of raising in the mind of the one threatened with such a device a fear that it is a real firearm." However, the language of the statute does not provide for such an inquiry when the weapon used is one other than a firearm.

In the absence of proof that a dangerous weapon was used during the commission of the robbery, section 801 is inapplicable and the appropriate charge is Robbery by Force or Fear under 21 O.S.1981, §§ 791, 797. Clearly, in the instant case appellant's actions were calculated to make R.T. believe he had a weapon concealed inside the bag. Therefore, we must determine whether the belief of R.T., without more, is sufficient to prove the use of a dangerous weapon beyond a reasonable doubt. We hold it is not.

A search for case law in this jurisdiction concerning this issue has proven unsuccessful. Appellant directs our attention to State v. Suniville, 741 P.2d 961 (Utah 1987), which we find persuasive. In Suniville, the defendant was charged with aggravated robbery under a statute very similar to 21 O.S.1981, § 801. Utah's statute required the prosecution to show the defendant used a "firearm or a facsimile of a firearm, knife or a facsimile of a knife or a deadly weapon...." Id. at 962. Suniville concerned the robbery of a credit union. With his right hand concealed inside his coat pocket, the defendant approached and threatened a teller, saying, "This is a robbery, don't turn it into a homicide...." Id. The teller testified "the pocket was 'up over the counter like he had a gun' and that 'something was pointing at me in his pocket.' " Id. Neither the teller nor four witnesses who saw the defendant exit the bank could testify that the defendant was carrying a gun, although one witness testified the defendant had something in his hand but he couldn't tell what the object was. Id.

The Suniville court vacated the defendant's conviction for aggravated robbery holding the "[d]efendant's menacing gesture accompanied by verbal threats is not sufficient evidence alone to establish the use of a firearm or a facsimile of a firearm." Id. at 965. We find the reasoning behind the Utah court's holding persuasive and applicable to this jurisdiction. After analyzing the aggravated robbery statute, the court concluded "the issue ... is not what was intended by defendant or what impression was made on the victim, but what was used." Id. at 964.

The same analysis is applicable to 21 O.S.1981, § 801. Accordingly, we conclude the victim's subjective belief concerning the presence of a weapon is insufficient to bring appellant's actions within the purview of Robbery with a Dangerous Weapon. The language of the statute forbids "the use of" a dangerous weapon. Allowing the victim's subjective belief to establish this element would blur the statutory distinction between Robbery With a Dangerous Weapon and Robbery by Force or Fear. Accordingly, we find that the prosecution's evidence was insufficient to support the charge of Robbery With a Dangerous Weapon.

Appellant does not contend that he did not rob the victim, just that the evidence failed to show he used a dangerous weapon during the course of the robbery. As discussed above, we agree that the evidence failed to show that appellant used a dangerous weapon. However, the evidence clearly showed that appellant robbed the victim by means of force or fear, and that appellant is guilty of the lesser-included offense of Robbery in the First Degree. 21 O.S.1981, § 797. This Court has the power under 22 O.S.Supp.1990, § 1066, to reverse, affirm, or modify appellant's judgment and sentence. Judgment in this case should be remanded to the District Court to modify the judgment from Robbery With a Dangerous Weapon to Robbery in the First Degree, and to modify appellant's sentence from thirty (30) years imprisonment to twenty (20) years imprisonment.

In his second proposition of error, appellant contends that the prosecutor improperly commented on scientific evidence during closing argument. We agree. During its case in chief, the prosecution called Ms. Long, a forensic scientist. Ms. Long conducted tests on semen stains present on the victim's clothing and compared them to blood samples taken from appellant. Ms. Long found that the stains contained a type B antigen which is consistent with appellant's blood type. Ms. Long testified that approximately ten (10) percent of the population could be the donor of the semen. Ms. Long further testified that hairs retrieved from the victim's clothing had "negroid characteristics."

This Court has previously held that evidence of the type introduced by Ms. Long is admissible. Plunkett v. State, 719 P.2d 834, 840 (Okl.Cr.1986); Driskell v. State, 659 P.2d 343, 355 (Okl.Cr.1983). However, during closing argument, the prosecutor expanded on the aforementioned evidence with the following:

MR. CANAVAN: Let's go one step further. Half that population is going to be female. So, we already know that half of your "B" secretors are going to be female. So, if 15 percent of the population is female--and she was obviously raped by a male--we're down to half of that, 7 1/2 percent. We've narrowed it down now to 7 1/2 percent. So, we've excluded 92 1/2 percent of the population. Okay?

That is irregardless of race. And in this country less than 25 percent of the population is black. So, take one-fourth of that 7 1/2 percent, and you're down to about a percentage and-a-half.

MR. FREED: Your Honor, I'm going to object to a conclusion drawn by counsel. The testimony by the chemist...