Tibbetts v. State, F-86-212

• Citation: 778 P.2d 925
• Decision Date: 09 August 1989
• Docket Number: No. F-86-212,F-86-212
• Parties: Kenneth L. TIBBETTS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 925

778 P.2d 925

Kenneth L. TIBBETTS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-212.

Court of Criminal Appeals of Oklahoma.

Aug. 9, 1989.

An appeal from the District Court of Comanche County; Jack Brock, District Judge.

Appellant, Kenneth L. Tibbetts, was tried by a jury in Comanche County District Court, Case No. CRF-81-660, and convicted of Kidnapping, First Degree Rape, and Forcible Oral Sodomy. He was sentenced to ten (10) years' imprisonment for Count I, forty-five (45) years' imprisonment for Count II, and ten (10) years' imprisonment for Count III. AFFIRMED.

John P. Zelbst, Lawton, for appellant.

Robert H. Henry, Atty. Gen. and Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Appellant, Kenneth L. Tibbetts, was tried by a jury in Comanche County District Court, Case No. CRF-81-660, and convicted of Kidnapping in violation of 21 O.S.1981, § 741, First Degree Rape in violation of 21 O.S.1981, § 1114(A)(1), and Forcible Oral Sodomy in violation of 21 O.S.1981, § 886. Appellant was found guilty of these same offenses in a previous trial. On appeal from that verdict, however, this Court found a fundamental error in jury selection, and reversed and remanded for a new trial. See Tibbetts v. State, 698 P.2d 942 (Okl.Cr.1985). The jury in the present case set punishment at ten (10) years' imprisonment for Count I, forty-five (45) years' imprisonment for Count II, and ten (10) years' imprisonment for Count III, to run consecutively. The judge sentenced appellant accordingly. From this judgment and sentence, appellant has perfected his appeal to this Court.

On September 27, 1981, at about 1:00 p.m., L.A., then twelve years of age, and her friend Steve Palmer, then fourteen, were playing on the grounds of the Woodland Hills Elementary School in Lawton, Oklahoma. Appellant approached them and said he was a security guard in charge of protecting the area from vandals. He then ordered the children to get down on their hands and knees. Palmer soon escaped and ran to a nearby house for help.

When Palmer was gone, appellant ordered L.A. into his car and said he would drive her to her house. She showed him which street was hers and he bypassed it, eventually pulling onto Cache Road. Appellant continued to drive in the direction of a wildlife refuge. He stopped the car several times, and at one point, tore off L.A.'s shirt and bra. Appellant eventually stopped on the side of the road and forced L.A. to orally sodomize him. He then carried L.A. into the grass, again forced her to commit oral sodomy, and finally raped her. Before leaving, appellant told L.A. that he would leave her bra and shirt by the side of the road. He also reminded her that he knew where she lived, and warned her not to tell anyone about what he had done.

L.A. put on her shirt but left her torn bra near the road where she had found it. Deputy Richard West discovered the bra while investigating the scene of the crime later that day. L.A. then walked to a nearby trailer home, told a woman there what had happened, and was subsequently taken to a Lawton hospital. While there, she told Officer Beverlee Hill that her assailant was a white male, 5'8" to 5'10", with sandy brown, bushy hair and a mustache. She said he was wearing rimmed sunglasses, a white tee shirt with red and blue stripes running from collar to each sleeve, faded blue overalls, and suede ankle boots. L.A. described her assailant's car as a maroon over silver monte carlo with no floor mats and a gold digital watch hanging from the rearview mirror.

Dr. John Henry Migliaccio and Nurse Janice Ann Hagy, who examined L.A. just after the rape, testified that her vaginal opening was red and swollen, and had been bleeding. Dr. Migliaccio stated that a pelvic exam revealed lacerations on both the vaginal opening and the hymen. Dr. Richard Boatsman testified that a venereal disease test performed at that time confirmed that L.A. had gonorrhea. Sandra Lucas, manager of the venereal disease clinic at the City Health Department, testified that on October 2, 1981, five days after the offense, appellant voluntarily entered the clinic complaining of symptoms which suggested that he had some form of venereal infection. His test results confirmed that he had gonorrhea.

On October 3, 1981, Officer Larry Mahamed stopped a monte carlo matching the description which L.A. had given to the police. The driver, appellant, also fit L.A.'s description. When he got closer to the car, Officer Mahamed noticed that it contained no floor mats, and that a gold digital watch hung from the rearview mirror. Appellant was subsequently arrested. A consent to search form which he signed led police to his apartment, where they discovered a white tee shirt with red and blue stripes and a pair of blue overalls.

For his first proposition, appellant argues that the trial court erred in refusing to allow him to present evidence that the prosecutrix may have engaged in sexual activity with other men before the alleged rape. Defense counsel informed the trial court that some of L.A.'s neighbors stood willing to testify that on several occasions prior to the rape, they had seen L.A. meeting some soldiers on one of their driveways. She would apparently leave with them and return at odd and varying hours. Appellant argues that he should have been allowed to introduce this evidence to show that L.A. could have been infected with gonorrhea by someone other than him. We disagree.

In Shapard v. State, 437 P.2d 565, 600 (Okl.Cr.1967), cert. denied, 393 U.S. 826, 89 S.Ct. 89, 21 L.Ed.2d 97 (1968), this Court set forth some rules to govern the admission, in a rape trial, of evidence relating to "the general reputation of the prosecutrix for lack of chastity...." One of the issues which we then addressed was whether an accused in a rape trial should be allowed to present evidence of a prosecutrix's sexual history to rebut her claim that she became pregnant as a result of the rape. We held that "whether the charge be forcible or statutory rape," i.e., whether or not consent is an issue, "evidence of specific acts of sexual intercourse between the prosecutrix and persons other than the accused, occurring near the time of conception, are admissible as tending to show that the pregnancy resulted from sexual connection with persons other than the accused...." Id. Appellant cites this principle as support for his argument that because the State offered evidence that he and L.A. had gonorrhea in an attempt to substantiate her story that she contracted the disease when he raped her, he should be allowed to offer evidence that she had sex with another person by whom she could have been infected.

Title 22 O.S.1981, § 750, Oklahoma's "rape shield" statute, states that

[i]n any prosecution for rape or assault with intent to commit rape, opinion evidence of, reputation evidence of and evidence as to specific instances of the complaining witness' sexual conduct is not admissible on behalf of the defendant in order to prove consent by the complaining witness.

(Emphasis supplied.) Arguably, this statute forbids the...