Plotner v. State

• Decision Date: 15 July 1988
• Docket Number: No. F-84-772,F-84-772
• Parties: Ralph Edward PLOTNER, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 936

762 P.2d 936

Ralph Edward PLOTNER, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-84-772.

Court of Criminal Appeals of Oklahoma.

July 15, 1988.

Rehearing Denied Aug. 30, 1988.

An Appeal from the District Court of Oklahoma County; Karl R. Gray, District Judge.

Ralph Edward Plotner, Jr., appellant, was convicted of Attempted First Degree Rape and Forcible Sodomy, in the District Court of Oklahoma County, Case No. CRF-83-6297, sentenced respectively to fifteen (15) and five (5) years imprisonment, and appeals. AFFIRMED IN PART AND REVERSED IN PART.

Mac Oyler & Mary Bane, Oyler & Bane, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., David W. Lee, Susan Stewart Dickerson, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

GORDON R. MELSON, ^* Assigned Judge:

Appellant, Ralph Edward Plotner, Jr., was tried by jury and convicted of Attempted First Degree Rape (Count I) (21 O.S.1981, § 42) (21 O.S.Supp.1983, § 1114), and Forcible Sodomy (Count II) (21 O.S.1981, § 888), in Oklahoma County District Court, Case No. CRF-83-6297, before the Honorable Karl R. Gray, District Judge. He was sentenced respectively to fifteen (15) and five (5) years imprisonment. We affirm in part, and reverse in part.

On November 6, 1983, the prosecutrix, J.R.B., accepted an invitation from Dr. Thomas Fraley, a married physician, to join him and two friends, appellant and Ralph Goodger, for dinner at Joe Kelly's Restaurant. Between 8:00 and 11:30 p.m., the party consumed numerous alcoholic beverages, and an intermittent quarrel occurred between J.R.B. and Fraley over her dating other men. When Fraley's raucousness disturbed nearby patrons, the management refused further service and the four departed around 11:30 p.m. in three separate cars to J.R.B.'s apartment.

At the apartment complex, Fraley's loud and disruptive behavior continued as he kicked the door, and resumed the previous argument inside J.R.B.'s apartment. Appellant and Goodger decided to take Fraley home, but before they left a police officer arrived in response to a disturbance complaint. Upon determining that Fraley and Goodger were too intoxicated to drive, the officer allowed appellant to drive them home. When J.R.B. objected to leaving Fraley's car at her apartment, the four decided she would drive it, while Fraley and Goodger rode with appellant. After dropping Fraley off at his home, appellant, J.R.B., and Goodger returned to Joe Kelly's parking lot, where Goodger got into his car and departed.

Appellant and J.R.B. returned to her apartment between 1:45 and 2:00 a.m., where they had a brief conversation with the guard. J.R.B. invited appellant inside for a coke, and they talked until around 2:30 a.m. about Fraley's jealousy and her need to date other men. Although appellant testified that he left her apartment without incident, J.R.B. said appellant leaned over into her lap and stated, "I'm going to f--- you." Stunned, J.R.B. suggested appellant leave. Instead, he reached under her dress and grabbed her pantyhose, jerking her to the floor. After he threatened her with serious harm, J.R.B. removed her clothes. Appellant forced her upstairs and onto her bed, where he undressed and began kissing her body, then committed oral sodomy on her--against her will and without consent.

As appellant was positioning himself for other sexual acts, J.R.B. slipped away and ran down the stairs, closely pursued by appellant. When J.R.B. opened the front door, she heard a crash and was jerked to the floor by her hair. At this point, her forehead was bleeding and she had a broken arm. Appellant shut the door, then said "Now you're going to die, bitch," and that he would now finish what he came to do. Appellant told J.R.B. he injured his foot chasing her down the stairs. After she stopped the bleeding from her forehead with a towel, she complied with appellant's demand that she wipe up the blood from the tiled floor.

Appellant ordered J.R.B. onto the dining room floor, where he attempted to have sexual intercourse with her; he was unable to do so, because he could not achieve an erection. He said he would "get her" if she "told" anyone. After she agreed not to tell, the two got dressed. J.R.B. refused appellant's offer to take her to a hospital, but instead drove herself to Mercy Health Center, arriving around 4:00 a.m. J.R.B. told Dr. Steven Conner and attending nurses that her broken arm and cut forehead were caused by a fall down the stairs. She said she did not implicate appellant initially, because of his threats. Later that morning, she told her mother, sister, and a male friend that she suffered the injuries while attempting to escape appellant's sexual assault. Although not impossible, Dr. Conner and Dr. Bruce Saylor testified that it was unlikely that J.R.B.'s arm was broken by a fall; instead, it was more consistent with having been slammed with a heavy door.

J.R.B.'s attorney reported the incident to Oklahoma City police on November 22 and 23, 1983. On November 28, 1983, J.R.B. gave a statement to police and authorized a search of her apartment for corroborating evidence. This search was conducted on December 15, 1983. A police investigator observed a "reddish" film or stain on the tile floor that appeared to be blood, but it was not tested. Scratch marks and other damage found on the inside of the front door appeared to have been caused by a watch, ring, or bracelet striking the door with great force. One of ten hairs found on the bedsheet was consistent with appellant, while the other nine were consistent with J.R.B. or of unknown origin.

A few days later, appellant volunteered his gold Rolex watch to the police for analysis. Special Agent Robert Webb, FBI chemist, testified that paint chips found on the watchband originated from the paint on the inside of J.R.B.'s apartment door. He admitted there were some differences in the trace elements, but believed the paints matched, though not conclusively. Appellant's expert, Charles Powell of the EM-TECH Corporation, testified the paint on the watch contained two elements, potassium and calcium, that were not present on the door paint. Powell also said appellant's watch could not have dented the steel apartment door without being significantly damaged or destroyed.

To rebut appellant's denial of taking his watch to be repaired or cleaned between the time of the alleged incident until he turned it over to the police over a month later, the State called an employee of the B.C. Clark jewelry store, who testified his records showed appellant had his watch cleaned and repaired on November 23, 1983, six days after the incident.

Appellant raises thirteen assignments of error, which we have condensed into eight.

I. SUFFICIENCY OF THE INFORMATION

Appellant's first assignment of error asserts the Information was fatally defective because it omitted and inadequately described essential elements of Attempted Rape in Count I, and did not properly plead the offense of Forcible Sodomy in Count II. The State counters by stating the charges were adequate because they were cast in statutory language.

The basic criteria for determining the sufficiency of an Information or Indictment in Oklahoma were described in Lamb v. State, 626 P.2d 1355, 1356 (Okl.Cr.1981):

The test of the sufficiency of an Information is whether it alleges every element of the offense intended to be charged, and sufficiently apprises defendant of what he must be prepared to meet and so defines and identifies the offense that if convicted or acquitted will be able to defend himself against any subsequent prosecution of the same offense.

This pronouncement reflects a tripartite test, requiring a valid Information to include: (1) the essential elements of the offense charged [an "essential elements" test]; (2) a sufficient enough description of these elements to inform the defendant of the nature and cause of the charge [a "specificity" test]; and (3) a description adequate enough to permit a later defense of former jeopardy [a "double jeopardy" test]. Our analysis will be confined to tests (1) and (2), since a later claim of double jeopardy is seldom based on the face of the Information or Indictment alone. See Woodring v. United States, 376 F.2d 619, 622 (10th Cir.1967).

Essential Elements Test. It is well settled that a criminal Information or Indictment is insufficient if it does not allege all the essential elements of the offense charged. Hendricks v. State, 698 P.2d 477, 480 (Okl.Cr.1985); Johnston v. State, 681 P.2d 90, 92 (Okl.Cr.1984). If any essential element is omitted, it cannot be supplied by intendment or implication or liberal construction. Group v. State, 94 Okl.Cr. 401, 236 P.2d 997, 1000 (1951); State v. Sowards, 64 Okl.Cr. 430, 82 P.2d 324, 328 (1938). Such an omission renders the Information incapable of charging a crime and so fatally defective that it cannot confer jurisdiction upon the trial court. White v. State, 582 P.2d 1334, 1335 (Okl.Cr.1978). Moreover, these jurisdictional defects are not waived and may be raised at any time, even for the first time on appeal. City of Tulsa v. Haley, 554 P.2d 102, 103 (Okl.Cr.1976).

Specificity Test. In addition to describing the alleged crime in bare statutory language, the charging information for certain offenses must also specify the actual conduct or circumstances, or the thing or means used. See Wirt v. State, 659 P.2d 341 (Okl.Cr.1983); Lamb v. State, 626 P.2d 1355 (Okl.Cr.1982); Davis v. State, 354 P.2d 466, 471-72 (Okl.Cr.1960); Courtney v. State, 79 Okl.Cr. 206, 153 P.2d 243 (1944); Allen v. State, 63 Okl.Cr. 16, 72 P.2d 516 (1937).

These cited cases usually involved crimes containing a "generic" element; that is, crimes that contained elements encompassing too great a variety of conduct to be described sufficiently by the conclusory language of the statutes alone.

The general rule is that ambiguity and lack of specificity of an Information are not...