Webb v. State, F--75--112

• Decision Date: 08 July 1975
• Docket Number: No. F--75--112,F--75--112
• Citation: 538 P.2d 1054
• Parties: Murl Frederick WEBB, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1054

538 P.2d 1054

Murl Frederick WEBB, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--112.

Court of Criminal Appeals of Oklahoma.

July 8, 1975.

Don Anderson, Public Defender, Murl Frederick Webb, pro se, for appellant.

Larry Derryberry, Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Murl Frederick Webb, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF--74--1727, for the offense of Oral Sodomy, in violation of 21 O.S.1971, § 886, and Case No. CRF--74--1728, for the offense of Taking Indecent Liberties with a Child Under the Age of Fourteen Years, in violation of 21 O.S.1971, § 1123. Both cases were consolidated for trial as a result of stipulation by the District Attorney and the defendant. His punishment was fixed by a jury at a term of ten (10) years' imprisonment for the offense of Oral Sodomy, and five (5) years' imprisonment for the offense of Taking Indecent Liberties with a Child Under the Age of Fourteen Years. From said judgments and sentences a timely appeal has been perfected to this Court.

The court conducted an In camera hearing to determine whether or not the prosecutrix, Alice Lynn Davenport, would be a competent witness and further to determine whether or not the conduct of the pre-indictment lineup met the minimum standards as set forth in Thompson v. State, Okl.Cr., 438 P.2d 287 (1968).

At the In camera hearing, the prosecutrix testified that she was seven years old and that she was in the second grade at Steed School. She further stated that she knew the difference between telling the truth and telling a lie, and that people 'get spankings' when they don't tell the truth. She further testified that she went to Sunday School and knew who Jesus was and that He liked people to tell the truth, and that was what she wanted to do.

Also, at the In camera hearing, B. J. Schmidt testified that he was a Detective Captain for the Bethany Police Department and was so employed on the 7th day of February, 1974. He further testified that he had occasion, on February 12, 1974, to conduct a lineup containing the defendant and four other men, whereupon he presented a picture of the lineup which he had taken and he stated it accurately portrayed the men and their attire. He further stated that prior to the lineup he advised the defendant of his rights and that the defendant at that time agreed to waive his rights and signed the appropriate form before being placed in the lineup. He lastly stated that the prosecutrix was present at the lineup.

During the in camera hearing the trial court ruled that the prosecutrix was a competent witness and further what had been marked as State's Exhibit No. 1, the photograph of the lineup, was admitted into evidence.

Following the in camera hearing, the State's first witness was the prosecutrix, Alice Lynn Davenport. She testified that she lived in Bethany, Oklahoma, and that on February 7, 1974, she was on her way to school when she saw a man, who she identified in court as the defendant. She further testified that at that time the defendant told her to take off her pants, whereupon the defendant put his finger in her rectum. She further stated that the defendant then pulled down his pants and 'told me to suck his peter.' She also stated that she did this and 'then pus came out.' She further testified the defendant then took her to school and thereafter she told her teacher, who took her to the restroom and called the principal. She testified that she then went home. She lastly testified that she attended a lineup in February at which time she pointed out the defendant as the man who had molested her on February 7, 1974.

Alvin Brown testified that he was the principal of Bethany Elementary School and was so employed on February 7, 1974, and that at such time Alice Lynn Davenport, the prosecutrix, was a pupil at said school. He further testified that on February 7, 1974, between 9:30 and 10:00 a.m., a teacher brought the prosecutrix to his office and the prosecutrix told him that a man had picked her up in a car, had stuck his finger in her rectum, and then had made her 'suck his wiener.' He stated that after the prosecutrix related this story to him, he took her back to class and thereafter went to her home and related said story to the mother of the prosecutrix. He lastly testified that later the same morning the prosecutrix' father came to the school, at which time he related the story to her father, after which the father took the prosecutrix out of school for the rest of the day.

Joe Resneder testified that he was a police officer with the Bethany Police Department and was so employed on February 7, 1974. He related he had occasion to first meet the prosecutrix at the time the prosecutrix and her father came to the Bethany Police Department to report a crime. He, at that time, obtained a description of the car and a description of the man involved in the alleged crime. He stated that the vehicle was described to him as a greenish color, a sedan type, a medium to medium large type vehicle, with a dark brown or black interior. He further stated that the description of the man given to him was that of a white male, older than twenty years of age, with a slight growth of beard on his face, weighing at least 130 pounds, and approximately five feet, six inches tall, and wearing a black or dark brown cap. He further testified that subsequently a radiogram was issued for the automobile and the suspect.

F. D. Shoun testified that he was an officer with the Bethany Police Department and on the 7th day of February, 1974, he was working in that capacity as a patrolman. He arrested the defendant on February 7, 1974, at which time he gave the defendant Miranda warnings to which the defendant replied he did not want an attorney present at the lineup, and he agreed to participate in the lineup. He stated the prosecutrix was present at the lineup and she identified the defendant from the lineup as the man who had molested her. The witness was then shown State's Exhibit No. 1, the photograph of the lineup in which the defendant participated, and the prosecutrix identified the defendant who was the center man in the photograph.

Alice Davenport testified that she was the mother of the prosecutrix and on February 7, 1974, the principal of her daughter's school came to her house on that morning and told her of the incident of which the prosecutrix had complained. She further testified that she called the prosecutrix' father and that he brought the prosecutrix home from school. She stated that she examined the prosecutrix and treated her for damage to the rectum.

B. J. Schmidt testified that he was the Captain of the Bethany Police Department and was so employed on Employed on February 7, 1974; that he had occasion to become active in the investigation of the case involving the defendant on the 12th day of February, 1974, at which time he conducted a lineup and interviewed the defendant in this case. He stated that the prosecutrix was present at said lineup and she positively identified the defendant as the man who had molested her.

The State then rested.

The defendant presented no evidence in his behalf and at that time the defense rested.

The defendant's first proposition of error asserts the evidence is insufficient to support the verdict. The record reveals, unequivocally that the defendant molested the prosecutrix and that the defendant made the prosecutrix commit oral sodomy. This Court has repeatedly held that where there is competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty as charged, the Court of Criminal Appeals will not interfere with the verdict, even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts. See, Jones v. State, Okl.Cr., 468 P.2d 805 (1970). For this reason this Court has no authority to invade the province of the trier of facts and make a determination of the defendant's guilt or innocence. We, therefore, find this proposition to be without merit.

The defendant's next proposition asserts that the punishment is excessive. We need only observe the punishment was well within the range provided by law, and does not shock the conscience of this Court. See, Turner v. State, Okl.Cr., 479 P.2d 631 (1971). We accordingly, find this proposition to be without merit.

In addition to the above two assignments of error submitted on defendant's behalf by the Oklahoma County Public Defender, defendant has submitted a pro se brief containing five additional assignments of error. The remainder of this opinion will be devoted to a discussion of the points raised therein.

In his first pro se assignment of error, defendant claims that he was subjected to double jeopardy, first because he was tried after the charges against him had once been dismissed; second, because he was tried on both charges in one trial; and third, because he was charged with multiple charges arising from the same incident.

In dealing with the first point, our review of the District Court Docket does not indicate that either charge was ever dismissed; rather it reveals that defendant appeared at arraignment ¹ on May 22, 1974, at which time hearing was set for June 25, 1974. On the latter date, defendant appeared in person and through counsel, and waived preliminary hearing. Trial was then set for September 11, 1974. On September 11th the trial was Continued, not dismissed, until September 16, 1974, apparently because of the failure of the complaining witness to appear. The trial was held on September 16th. Thus, it appears that defendant has mistaken a continuance for a dismissal, rendering this portion of his first pro se assignment of error untenable. Since nothing in the record indicates...