Miller v. State, F-80-334

• Decision Date: 12 March 1982
• Docket Number: No. F-80-334,F-80-334
• Citation: Miller v. State, 642 P.2d 276 (Okla. Crim. App. 1982)
• Parties: Terry MILLER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 276

642 P.2d 276

Terry MILLER, Appellant, v.The STATE of Oklahoma, Appellee.

No. F-80-334.

Court of Criminal Appeals of Oklahoma.

March 12, 1982.

Rehearing Denied April 14, 1982.

An Appeal from the District Court of Pittsburg County; Robert A. Layden, Judge.

TERRY MILLER, appellant, was convicted of Rape in the First Degree and Burglary in the First Degree, in the District Court of Pittsburg County, Case No. F-79-42, was sentenced to ten (10) years' imprisonment for Rape in the First Degree, and ten (10) years for Burglary in the First Degree, and he appeals. AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Criminal Appellate Division, Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Terry Miller, hereinafter referred to as the defendant, was convicted of Rape in the First Degree, in violation of 21 O.S.1971, § 1114, and Burglary in the First Degree, in violation of 21 O.S.1971, § 1431, in the District Court of Pittsburg County, Case No. F-79-43.The jury returned a verdict of guilty and set punishment at ten (10) years respectively for each crime, and the defendant appeals.

The evidence established that between 5:30 and 6:00 p.m., on February 7, 1979, Terry Miller and Eddie Farrel entered into the victim's house in Krebs, Oklahoma.The State called the victim, 80 year old Ms. P.D., as its first witness, who testified that the two men took her into the kitchen, undressed her and demanded $2,000.00 in cash.When she told the men that she only had twenty dollars, they threatened to stab her.She further testified that one of the intruders, whom she identified as the defendant, took her into the den and raped her, while the other proceeded to search for more money.After they left, Ms. P.D. reported the incident to her neighbor.

Later in February, the defendant was arrested for an unrelated incident in Muskogee, Oklahoma.Officer Simmons testified that after the arrest he and an O.S.B.I. agent questioned the defendant about the February 7th incident in Krebs.This questioning took place on two different days.During the first questioning, the defendant admitted the burglary, but denied having sexual intercourse.Officer Simmons testified that at one point he simplified the meaning of "sexual intercourse" to a term the defendant could more readily understand.After this simplification, the defendant confessed to the rape.The officer also testified that no threats or promises had been made to the defendant, that the defendant had been read his Miranda rights on three separate occasions, and that the defendant signed a Waiver of Rights Form.

The defendant took the stand and admitted that he entered the house at "dusky dark," and robbed the old lady; however, he denied that his confession was voluntary and that he had raped her.He testified that he admitted the rape in the third interview only because he was tired and had been offered probation if he confessed.

I.

In his first assignment of error, the defendant asserts that the State failed to prove the crime of Burglary in the First Degree because it failed to introduce sufficient evidence to establish the nighttime element.We note from the record that there was conflicting testimony as to the exact time of day the incident took place.The victim and a neighbor testified the incident occurred between 5:30 and 6:00 p.m.Several other witnesses testified that the crime occurred "at dusky dark,""as it was getting dark," and "at dark."In Nichols v. State, 564 P.2d 667(Okl.Cr.1977), it was held that it is the exclusive province of the jury to weigh the evidence and to determine the facts, and where there is competent evidence from which the jury could reasonably conclude that the defendant was guilty as charged, this Court will not interfere with the verdict.In this case, the jury weighed the credibility of each witness and concluded that the evidence was sufficient to establish the nighttime element.Therefore, defendant's first assignment of error is without merit.

II.

The defendant's next assignment of error asserts that his confession should not have...