McBrain v. State

• Decision Date: 27 September 1988
• Docket Number: No. F-86-690,F-86-690
• Citation: 763 P.2d 121
• Parties: Kirk Warren McBRAIN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 121

763 P.2d 121

Kirk Warren McBRAIN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-690.

Court of Criminal Appeals of Oklahoma.

Sept. 27, 1988.

An appeal from the District Court of Kay County; Kenneth Reed, District Judge.

Kirk Warren McBrain, appellant, was convicted in the District Court of Noble County, Case No. CRF-85-06 of the crimes of Kidnapping, First Degree Rape (two counts) and Sodomy. Appellant was sentenced to eight (8) years imprisonment on the Kidnapping charge, ten (10) years imprisonment on each of the Rape counts (each count to run concurrently) and ten (10) years imprisonment on the Sodomy charge. AFFIRMED.

Scott W. Braden, Ponca City, for appellant.

Robert H. Henry, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

BUSSEY, Judge:

The appellant, Kirk Warren McBrain, was convicted on February 14, 1986, in the District Court of Noble County, Case No. CRF-85-06 of the crimes of Kidnapping, First Degree Rape (two counts) and Sodomy. Appellant was sentenced to eight (8) years imprisonment on the Kidnapping charge, ten (10) years imprisonment on each of the Rape counts (each count to run concurrently) and ten (10) years imprisonment on the Sodomy charge. From this sentence he appeals.

On the evening of March 23, 1984, Kirk McBrain, Donald Honeycutt and Mark Loveall grabbed fourteen-year-old R.A. as she was walking along a Ponca City street and forced her into McBrain's car. While McBrain drove, Honeycutt grabbed and threw a screaming R.A. into the front seat. The victim was placed in the front seat between McBrain and Honeycutt until they arrived at Lake Ponca. Honeycutt then ordered R.A. to take off her clothes, he slapped her and got into the backseat where he raped her. Then Loveall raped her. Finally, McBrain who had been in the driver's seat forced the victim to orally sodomize him. The appellant stated he didn't want to rape her because he thought she had a venereal disease. While appellant was in the backseat with the victim, Honeycutt began driving the car.

Shortly thereafter a Ponca City police officer, noticing erratic driving, stopped the vehicle and asked the three men for identification. The officer observed that Loveall did not have his pants on and that McBrain was not wearing underwear. The officer arrested Honeycutt for driving under the influence. He then arrested the appellant and Loveall for public intoxication. R.A. remained in the car until the officer had arrested and detained the three men. The officer noted that R.A.'s face and hair were covered with axle grease. He described her demeanor as "controlled hysteria".

A detective from the Ponca City police department arrived and interviewed the victim at the scene. She recounted the rapes by Honeycutt and Loveall and said that the appellant had put his finger in her vagina. The victim was then taken to the hospital where personnel administered a rape test.

On March 25, 1984, the detective took a taped statement from appellant where he admitted orally sodomizing R.A. Thereafter, the detective interviewed R.A. and she acknowledged that appellant had made her orally sodomize him.

On March 26, 1984, an Information was filed in Kay County against the appellant and the two other co-defendants. Appellant's preliminary hearing was held on July 26, 1984, and he was bound over for trial.

During Thanksgiving week 1984, the victim disappeared and was found dead. Police arrested appellant and charged him with murder. On New Year's Eve 1984, appellant escaped from the Kay County jail and was not recaptured until nine months later.

Prior to his escape the district judge in Kay County granted a change of venue to Noble County. Prior to trial, on January 22, 1985, and February 10, 1986, the appellant presented motions for change of venue from Noble County. The court denied the motions and the jury trial began on February 10, 1986.

I

As his first assignment of error the appellant asserts that his conviction under 21 O.S.1981, § 886 is unconstitutional. We reject this assignment of error. We have repeatedly held that this statute is constitutional. Hicks 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 (1973).

The appellant cites Post v. State, 715 P.2d 1105 (Okl.Cr.1986) to support his contention. However, Post, supra, declared unconstitutional the application of 21 O.S.1981, § 886 to consensual acts between adults.

We stress that our decision today in no way affects the validity of 21 O.S.1981, § 886 in its application to bestiality, forced sexual activity, sexual activity of the underaged, or public or commercial sexual acts.

Post, supra, at 1109.

The appellant additionally asserts in his first contention that he should have been allowed an instruction on consent. The evidence does not support such an instruction nor is one necessarily required as 21 O.S.1981, § 886 covers acts of consensual sodomy committed with a child. See Post, supra. We therefore find this assignment without merit.

II

In his second assignment the appellant contends that the trial court erred by denying his motion for a change of venue from Noble County. A change of venue had already been granted from Kay County to Noble County. We find that the trial court did not abuse its discretion in denying the second change of venue. The trial court acknowledged the extensive publicity given the case. However, the court felt that a change of venue was not warranted as an impartial panel could be selected in Noble County.

We have held consistently that a granting of a change of venue is within the discretion of the trial court and that we will not disturb the denial of a motion for change of venue unless there has been an abuse. Plunkett v. State, 719 P.2d 834 (Okl.Cr.1986); Wooldridge v. State, 659 P.2d 943 (Okl.Cr.1983); Frye v. State, 606 P.2d 599 (Okl.Cr.1980). Whether the defendant was provided with a fair and impartial jury is the determinative inquiry into whether the trial court abused its discretion in denying the motion for change of venue. Plunkett, supra; Wooldridge, supra; Andrews v. State, 555 P.2d 1079 (Okl.Cr.1976); Brinlee v. State, 543 P.2d 744 (Okl.Cr.1975).

In the instant case the trial court conducted an extensive individual voir dire of forty-four prospective jurors. The trial court, defense counsel and prosecutor probed into the effect of the media on the veniremen. Of the forty-four prospects, twelve were excused for cause. The remaining prospective jurors were again questioned on the media coverage surrounding the victim's death. Each juror stated that he or she could disregard any opinions formed from the media and render a verdict based on the evidence presented at trial. This extensive voir dire protected the appellant from the taint of community prejudice. Stafford v. State, 731 P.2d 1372 (Okl.Cr.1987).

There was no indication of inflamed community sentiment or juror impropriety during the course of the trial to counter the jurors' impartiality. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). There is nothing in the record to show that the appellant did not receive a fair and impartial trial. Brinlee, supra.

III

In his third assignment of error the appellant contends that he was improperly convicted of Rape in the First Degree. We find that there was sufficient evidence to conclude that the appellant aided and abetted in the commission of the crimes.

The appellant argues that he was present when the rapes occurred yet did not actively participate, thus he should not have been convicted of First Degree Rape. However, the jury reasonably concluded from the evidence that the appellant acted as a principal. Where there is evidence to support the verdict, we will not disturb the jury's findings since it is the exclusive province of the jury to weigh the evidence and determine the facts. Smith v. State, 640 P.2d 988 (Okl.Cr.1982), Morris v. State, 607 P.2d 1187 (Okl.Cr.1980).

The evidence at trial revealed that appellant was the owner of the car and driving it when he, Honeycutt and Loveall abducted R.A. Prior to the abduction, the men discussed finding some girls. Honeycutt had talked to some girls who escaped from him and shortly thereafter he grabbed R.A. She was then forced to sit between appellant and Honeycutt. While R.A. screamed and asked to stop the car, appellant drove to the location where the victim was raped and forced to commit oral sodomy. Appellant watched while Honeycutt and Loveall raped R.A. When it was the appellant's turn, he made the victim orally sodomize him. He did not have intercourse with her since he believed she had a veneral disease. During the course of this sordid occurrence, the three men used false names in addressing one another.

Aiding and abetting requires acts, words or gestures encouraging the commission of the offense. Van Woundenberg v. State, 720 P.2d 328 (Okl.Cr.1986) cert. denied 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395; Rounds v. State, 679 P.2d 283 (Okl.Cr.1984); Hindman v. State, 647 P.2d 456 (Okl.Cr.1982). The appellant's status as an aider and abettor in the commission of the acts of rape were substantiated by his driving the car, observing the acts of rape without trying to impede their commission, and finally in requiring R.A. to orally sodomize him. In a similar fact situation this Court said that:

All the evidence in the case and the circumstances therewith strongly indicate that the defendant knew what was going to take place when he assisted in getting the girls away from town and out to the Sledge farmhouse without their consent, and after they had begged him to take them home.

Elliott v. State, 45 Okl.Cr. 5, 281 P. 305, 310 (1929). Appellant...