Worchester v. State, F--74--534

• Decision Date: 04 June 1975
• Docket Number: No. F--74--534,F--74--534
• Citation: 536 P.2d 995,1975 OK CR 111
• Parties: Nicholas Franklin WORCHESTER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 995

536 P.2d 995

Nicholas Franklin WORCHESTER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--74--534.

Court of Criminal Appeals of Oklahoma.

June 4, 1975.

Nicholas Franklin Worchester, pro se.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Harold T. Garvin, Jr., Legal Intern, for appellee.

OPINION

BLISS, Judge:

Appellant, Nicholas Franklin Worchester, hereinafter referred to as defendant, was charged by information, tried before a jury, and convicted of the offense of Burglary in the First Degree, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1431, in the District Court, Oklahoma County, Case No. CRF--74--721. The defendant's punishment was assessed at one hundred (100) years' imprisonment in the care and custody of the Department of Corrections of the State of Oklahoma. From the judgment and sentence of the trial court, the defendant has perfected a timely pro se appeal to this Court, after having requested that the public defender be discharged and requesting permission to represent himself on appeal, which request was granted.

Vickie Leah Rein, the complaining witness, stated that she was a married person residing at 8300 South Walker in Oklahoma City. At 1:30 a.m. on the 21st of February, 1974, while alone in her home, she was awakened by some noise at the rear of her home. Her house was locked. Upon investigating, she saw a window at the back of the house being raised. She then inquired if it was her husband (a night postal employee) and asked if he had forgotten his key. The person responded that it was her husband, and directed her to open the door. Realizing that the voice was not that of her husband, she informed the intruder of her intent to call the police whereupon she observed a hand break through the glass of the back door. To escape, she fled out the front door. She heard someone following her through the house as she fled. She ran to a neighbor's home seeking assistance, but she was caught and beaten by her pursuer. Mrs. Rein further testified that she was then dragged by the hair and carried to a pasture adjacent to the neighbor's home. The pursuer alternatively beat her with his fists and tried to choke her. The victim eventually managed to escape her assailant's grasp and ran to the safety of her neighbor's home. The victim identified the defendant as her assailant, and further testified that she did not give the defendant consent to enter her home.

On cross-examination the witness stated that she did not see the man enter her home but heard him come in and chase her through the house. She suspected the man across the street to be her attacker because his physical appearance was similar to her attacker's. She testified it was very dark and rainy on the evening in question but that there was good illumination in the neighbor's back yard and lights were on in the victim's house.

The next witness was Mrs. Gibson, the neighbor of the victim. Mrs. Gibson testified that on the date and time in question she heard screaming and got up and ran to her front door. When Mrs. Gibson reached the door and opened it, she could see the complaining witness being pulled on the ground by a form she could not identify. The witness then stated that after a period of silence she heard the victim start screaming again and then saw her run back up her driveway. The victim was then admitted into the house, being muddy, bloody and hysterical.

Tom Bevel of the Oklahoma City Police Department stated that on the date in question he went to the victim's house and conducted an investigation. He took photographs both inside and outside of the victim's house, howing glass broken out of the back door and a screen which was removed from one of the windows. Both photographs were then admitted into evidence without objection. Also, photographs of the victim were admitted to show the identity and physical condition of the victim as the witness, Mrs. Gibson, had seen her that date.

The State recalled Vickie Leah Rein and she testified further that on the night in question she observed a dark brown corduroy coat and the defendant's arm breaking into her house. The same man in a corduroy coat grabbed her in the yard of her neighbor's house. It was at this time that she saw the man's face. The voice of the man directing her to open the door of her house was the same as the voice she heard during the course of the subsequent attack. She further stated that she did not see anybody enter the house, but she did see the arm come through the glass and a man hitting the door. At the conclusion of this evidence the State rested.

The defense demurred to the State's evidence and was overruled. Whereupon, the defendant rested.

Following instructions to the jury and argument of counsel, the case was submitted to the jury resulting in a guilty verdict. Upon return of the jury to open court, the trial judge made a record that the jury sent him a note which he had answered. The court reporter filed such note as 'Court Exhibit A.'

At the second stage of the trial the defense moved the court to strike from the information a second degree rape charge due to the fact that the defendant was a juvenile of 16 years of age at the time of the offense. The trial judge overruled the motion stating that the defense's oral motion without supporting evidence could not be used to attack a prima facie valid judgment. The parties then stipulated to the former offenses, that they were filed against the defendant, that the convictions were final, and that the defendant was represented by counsel. Notwithstanding the stipulation of his attorney, the defendant asserts that at the time of his conviction in Pontotoc County for the offense of Rape in the Second Degree he was the age of 16 and that judgment and sentence was void.

The defendant first contends that the State failed to submit any evidence that the defendant did break and enter the home of the complaining witness. The complaining witness first stated that her house was locked and that she did not give consent to the defendant to enter. While investigating the late night noises, she saw the window being opened and the defendant's arm come through the glass of the back door. Further, she heard the defendant chase her through the house as she ran to escape. Photographs of the back door with glass broken out of it, as well as a photograph of a torn screen from a window on the back of the house, were also admitted into evidence. The language of the charging statute, 21 O.S.1971, § 1431, reads in part as follows:

'Every person who breaks into and enters in the night time the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:

'1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such a house or the lock or bolts of such door, or the fastening of such window or shutter; or,

'. . . is guilty of burglary in the first degree.'

We have held that the physical force necessary to constitute 'a breaking' as an element of burglary may be any act of physical force, however slight, by which obstructions to entering are forcibly removed. See, Fish v. State, Okl.Cr., 505 P.2d 490 (1973) and Yeargin v. State, 54 Okl.Cr. 34, 14 P.2d 431 (1932). The testimony and evidence as stated in the record of the case at bar are clearly sufficient to support the conviction of Burglary in the First Degree. The trial court properly overruled the defendant's demurrer at the close of the State's case, there being sufficient evidence to support the charge in the information.

The defendant's second proposition is that he was forced to defend against two different offenses, Burglary and Assault. We find the pertinent portion of the charging statute above quoted the 'intent to commit some crime therein,' which must be proved by the State is fatal to the defendant's argument. The element of 'intent to commit some crime therein,' does not mean that a crime must be perpetrated by the defendant. This Court has stated that the defendant need only have the requisite criminal intent at the time of unlawful entry. See, Logan v. State, 95 Okl.Cr. 76, 239 P.2d 1044 (1952). From the actual commission of a crime, intent may be rebuttably presumed. 22 C.J.S. Criminal Law § 34, Andrews v. State, Okl.Cr., 455 P.2d 741 (1969). Hence, in the case at bar, the intent necessary to sustain a conviction under the statute may be proved by evidence of the commission of a crime commensurate with the breaking and entering. See, Shields v. State, Okl.Cr., 490 P.2d 1390 (1971), wherein we quoted with approval Ryans v. State, Okl.Cr., 420 P.2d 556 (1966):

'Intent as an essential element of an offense is a question for the jury to be determined from what the accused does and says, and all the facts and circumstances of each case.'

See also, Cherry v. State, Okl.Cr., 276 P.2d 280 (1954). We find the testimony and evidence concerning the beating administered to the victim by the defendant to be part of the res gestae of the charge of Burglary in the First Degree, the victim being placed in fear and apprehension of her bodily safety at the outset of the defendant's acts of breaking into her home. It matters little that the location where the assault was physically culminated was not within the house per se, since the events which transpired were part of the same criminal transaction. The beating is an act, fact, or circumstance arising from the commission of the offense of burglary which is admissible in evidence as constituting the res gestae of the burglary despite its independent legal significance as a crime in its own stead. See, Martin v. State, Okl.Cr., 449 P.2d 275 (1969) and further, Moulton v. State, Okl.Cr., 476 P.2d 366 (1970), wherein we stated:

'. . . The general rule in this state is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by...