Wallace v. State, F-79-662

• Citation: 620 P.2d 410
• Decision Date: 23 October 1980
• Docket Number: No. F-79-662,F-79-662
• Parties: Raymond Arthur WALLACE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 410

620 P.2d 410

Raymond Arthur WALLACE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-662.

Court of Criminal Appeals of Oklahoma.

Oct. 23, 1980.

Appeal from the District Court, Comanche County; Jack Brock, Judge.

Raymond Arthur Wallace, appellant, was charged and convicted for the offense of Rape in the First Degree and Robbery by Force or Fear, After Former Conviction of a Felony; was sentenced to Forty (40) years and one (1) day, and Twenty-Five years and one (1) day imprisonment and appeals. AFFIRMED.

Robert C. Schulte, Lawton, for appellant.

Jan Eric Cartwright, Atty. Gen., C. Elaine Alexander, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge.

Appellant, Raymond Arthur Wallace, hereinafter referred to as defendant was charged, tried by jury, and convicted by Rape in the First Degree, 21 O.S.1971, § 1114 and Robbery by Force or Fear, 21 O.S.1971 § 791, After Former Conviction of a Felony, in Comanche County District Court Case Nos. CFR-78-1327 and 78-1328, and punishment was fixed at forty (40) years and one (1) day, and twenty-five (25) years and one (1) day, respectively, to run consecutively. From said Judgments and Sentences an appeal has been perfected to this Court.

The evidence of the State established that in the early morning hours of December 9, 1978, the prosecutrix was awakened by the sound of someone in her darkened house. She got out of bed but was grabbed by a black male. The man choked her, struck her, ripped her gown open and raped her. The man then demanded money. Prosecutrix gave him four or five twenty dollar ($20.00) bills and two (2) one dollar ($1.00) bills. The assailant then struck her and tried to rape her again but was unsuccessful, whereupon prosecutrix was thrown to the floor and stomped in the face by the man. He took a small brown paper bag containing jewelry and fled from the house. Prosecutrix immediately contacted the police and gave a description of her attacker.

At the preliminary hearing, the state's evidence was that the assailant fled from the scene on foot in a northeasternly direction; a taxi cab was seen by a police lieutenant to be driving away from the general area of the attack; the lieutenant ordered another officer to stop the cab, although the lieutenant had no idea who was in it; two officers did in fact stop the cab and observed that the passenger, identified as Defendant, matched the description given by the victim: black male, young 20's, tan suit jacket, afro style hair cut, medium build and about 5'9 or 5'10 tall. It was also noticed that the man's belt was unbuckled and pants were unzipped.

At trial it was also established that one of the officers who stopped the cab did so because he saw it drive into the area, stop at an apartment complex northeast of the victim's residence, and proceed out of the area, occupied by the driver and a passenger. The passenger was transported to the crime scene where the prosecutrix tentatively identified him but then withdrew the identification. The defendant was transported to the police station to be booked on investigation of rape where a strip search revealed five twenty dollar bills and two one dollar bills hidden between his buttocks. A brown paper bag containing the prosecutrix's stolen jewelry was found behind the back seat of the police unit in which the defendant was transported to the station.

Defendant asserts in his first assignment of error that the evidence presented at the preliminary hearing was insufficient to justify binding him over for trial. The defendant argues that the only evidence of probable cause to believe that he committed the offenses was improbable and suspect identification testimony by the prosecutrix. We disagree. An...