Price v. State, F-86-319

• Decision Date: 30 October 1989
• Docket Number: No. F-86-319,F-86-319
• Parties: Billy Dewayne PRICE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 143

782 P.2d 143

Billy Dewayne PRICE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-319.

Court of Criminal Appeals of Oklahoma.

Oct. 30, 1989.

An Appeal from the District Court of Rogers County, Byron Ed Williams, District Judge.

Billy Dewayne Price, appellant, was convicted of Murder in the First Degree and

Lewd Molestation in the District Court of Rogers County, Case No. CRF-85-95. He was sentenced to a term of life imprisonment on Count I and to twenty (20) years imprisonment on Count II. From said judgments and sentences, appellant appeals to this Court. Judgments and Sentences are AFFIRMED

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

Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Billy Dewayne Price, appellant, was tried by jury for the crimes of First Degree Murder, in violation of 21 O.S.Supp.1982, § 701.7(C), and Lewd Molestation, in violation of 21 O.S.Supp.1983, § 1123, in the District Court of Rogers County, Case No. CRF-85-95. The jury found appellant guilty of both crimes and set punishment at twenty (20) years imprisonment on Count II. The trial court sentenced appellant in accordance with said verdict. Because the jury was unable to reach a verdict regarding punishment on Count I, the trial judge discharged the jury and imposed a sentence of life imprisonment. From these judgments and sentences, appellant appeals to this Court.

On May 15, 1985, at approximately 9:15 p.m., Francis Gelvin and Brenda Wilkerson left Ms. Gelvin's Oologah, Oklahoma trailer house. Ms. Gelvin's two daughters, four-year-old Bonnie and seventeen-month-old Amber, were left in the care of appellant, then Ms. Gelvin's common-law husband. This case arises from the events which transpired during the ensuing hour.

At 10:30 p.m., Mrs. Ruby Garrison, a neighbor, answered her door to find appellant frantically seeking assistance. After explaining that his child had been injured and requesting Mrs. Garrison to call for help, appellant returned home. Mrs. Garrison then telephoned the police and walked toward the trailer. She and Oologah Police Officer Richard Reynolds arrived at the scene at approximately the same time. Thereupon, they witnessed appellant, who was running toward them with Amber in his arms, stumble and fall to his knees. Both Mrs. Garrison and Officer Reynolds testified that the child was gently placed on the ground at that time.

Noting that Amber was very limp and having difficulty breathing, Officer Reynolds immediately began using CPR to revive her. Minutes later, Dr. James Stauffer and a rescue unit arrived at the scene. Dr. Stauffer diagnosed Amber as having a head injury and requested that Life Flight, Tulsa's emergency helicopter service, be called. Life Flight arrived approximately fifteen (15) minutes later and the child was thereafter transported to St. Francis Hospital in Tulsa. Despite extensive medical procedures, Amber's condition deteriorated. She was pronounced dead on May 18, 1985. The cause of death was listed as subdural hematoma (blood in the brain) and cerebral edema (swelling of the brain), secondary to blunt injury to the brain.

Appellant consistently maintained that Amber's injuries were the result of two separate accidents. He first claimed to have been playing with the older child when he lost his balance and fell on Amber, alleging that his lower back landed on the child's chest and abdomen. Appellant further asserted that as he stumbled in the driveway while carrying Amber, his pelvis again struck the girl's abdomen. However, medical testimony sharply contrasted appellant's version of the facts.

Dr. Diane Gobal, the pediatric resident on duty in the emergency room, was the first doctor to treat Amber upon her arrival at St. Francis. Dr. Gobal testified that there was no evidence of trauma to either Amber's chest or abdomen. Her examination of the child did, however, reveal the following: One abrasion on Amber's nose, two abrasions on her chin, marked bruising about the genital area, one large red bruise on the pelvis bone, several old bruises on the thighs, bruising about the buttocks, a large fresh contusion on the right external vaginal opening, an abrasion on the inside of the vaginal wall, bloody discharge in the vaginal opening, and a slightly dilated hymen. Dr. Gobal concluded that all of the injuries were inconsistent with appellant's version of the facts and that the vaginal area injuries were consistent with the touching of an adult penis or another instrument.

Dr. Robert Lee Hemphill, Deputy Chief Medical Examiner for the State of Oklahoma, generally concurred in Dr. Gobal's findings. He determined that the facial and genital area bruising had been inflicted within three to five days of Amber's death. Both Dr. Hemphill and Dr. Gene Miller, the attending pediatric neurologist, concluded that the child's fatal injuries were caused by repetitive violent shaking.

As his first assignnent of error, appellant asserts that the trial court erred in refusing to grant his motion for a change of venue. Specifically, he contends that extensive pretrial publicity deprived him of his right to a fair and impartial jury. In support of his motion before the trial court, appellant filed the affidavits of forty-six (46) Rogers County residents wherein each affiant expressed their belief that appellant could not receive a fair trial in that county because of adverse publicity. On the basis of the foregoing, and upon the fact that most of the potential jurors had heard of or read about the case, appellant urges this Court to reverse his conviction.

Initially, we note that a motion for a change of venue is addressed to the sound discretion of the trial court, and its decision will not be disturbed absent abuse. Godbey v. State, 731 P.2d 986, 987 (Okl.Cr.1987); Frye v. State, 606 P.2d 599, 602 (Okl.Cr.1980). When considering such a motion, the presumption of law is that a defendant can get a fair and impartial trial in the county in which the charged offense was committed. Brown v. State, 743 P.2d 133, 136 (Okl.Cr.1987); Eberhart v. State, 727 P.2d 1374, 1377 (Okl.Cr.1986). Such presumption is rebuttable, but the burden of persuasion is upon the defendant. Brecheen v. State, 732 P.2d 889, 893 (Okl.Cr.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244; Robison v. State, 677 P.2d 1080, 1083 (Okl.Cr.1984), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831. A mere showing that pretrial publicity was adverse to the defendant is not enough. Brown, supra at 136; Brecheen, supra at 893. Nor is the existence of affidavits dispositive of this issue. Brown, supra at 135; Walker v. State, 723 P.2d 273, 278 (Okl.Cr.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600. The defendant must show by clear and convincing evidence not only that the jurors were exposed to the publicity, but that he was thereby prejudiced. Brown, supra at 136; Robison, supra at 1083.

In the present case, extensive voir dire examination revealed that seven (7) of the twelve (12) impaneled jurors had either read about or heard of appellant's case. However, each of those jurors stated that they had not formed an opinion as to appellant's innocence or guilt. All twelve (12) jurors avowed they could fairly and impartially judge the case solely on the evidence presented. Those venirepersons who had formed opinions concerning appellant's guilt or doubted their ability to serve impartially were excused for cause. We find such process adequately safeguarded the jury process, Brecheen, supra at 893, and that appellant failed to demonstrate prejudice. Accordingly, we hold that the trial court did not abuse its discretion in refusing to grant appellant's motion for a change of venue.

In his second assignment of error, appellant maintains that Count II of the Information was insufficient and that the Lewd Molestation instructions improperly authorized his conviction. Appellant was originally charged with First Degree Rape under Count II, but an amended Information charged him with Attempted First Degree Rape. However, the preliminary hearing magistrate bound appellant over for the crime of Lewd Molestation and the Second Amended Information reflected such charge. That Information included all of the elements of Lewd Molestation plus an allegation that appellant penetrated the victim's vagina with his penis or another object. Evidence of vaginal penetration was introduced both at the preliminary hearing and at trial, as was other evidence indicative of sexual abuse. The jury instructions pertaining to Count II were virtually identical to the language set forth in 21 O.S.Supp.1983, § 1123.

As stated above, appellant was charged by Information for the crime of Lewd Molestation. Count II contained the elements of the crime charged, correctly apprised appellant of what he must have been prepared to meet and did not expose him to the possibility of being put in jeopardy a second time for the same offense. See Allen v. State, 734 P.2d 1304 (Okl.Cr.1987). Moreover, the State presented evidence of Lewd Molestation and the jury found appellant guilty of that crime. Therefore, we must reject appellant's argument that the description contained in the Information failed to adequately apprise him of what he must have been prepared to meet.

With respect to the second part of this assignment, appellant contends that the Lewd Molestation instructions were insufficient because they did not require proof of penetration. Initially, we note that defense counsel did not object to the Lewd Molestation instructions given, nor did they proffer any written requested instructions covering said subject matter. Therefore, any alleged error has been waived. Peninger v. State, 721 P.2d 1338, 1341 (Okl.Cr.1986); Lipe v. State, 716 P.2d 700, 703 (Okl.Cr.1986).

Had this issue been properly preserved for review, we...