*1 474 drive,
During thе threat- appellant rights against amendment self-incrimina- first, however, ened Ms. B.V. several times. she Although tion. We note that one of not they seen the knife since left the the two complained remarks of drew no store, she testified at trial objection by appellant’s that she was now Im- counsel. “petrified” fright, and believed that proper prosecutorial comments are waived she would be killed if she in if any way objected Tahdooahnippah resist- not to. v. Upon State, ed. reaching spot (Okl.Cr.1980). secluded on a 610 We note P.2d 808 country Grove, road somewhere north of рroposition further that his as a whole was Ms. B.V. unwillingly appellant’s submitted to oral sex not included in the motion Afterwards, and intercourse. the appellant preserve specific new trial. Failure to alle- actions, apologized for the prose- gations his drove of error in the motion for new trial store, cutrix back to the and asked her not appellate except waives review for all fun- police. State, to call the damental error. Nutter v. 658 P.2d (Okl.Cr.1983). 492 A review of the records appellant The first that argues reveals that said comments do not consti- conviction must be vacated because the grounds tute for either reversal or modifi- state to prove failed essential elements of cation of sentence. Here, charged. appellant crime contends that the prove State failed to appellant’s assignment The finаl rape accomplished was by either force error is that evidence of another crime great violence or threats of harm bodily improperly admitted to his prejudice. required by statute, as the charging appellant 21 prosecutrix’s O.S. contends that 1114(A)(3). Essentially, appеl testimony § committed an act of oral lant’s argument is that when a healthy, sodomy just her upon seconds before he adult, knife-wielding male accosts a woman commenced the was inadmissible un in the middle of the night, threatening O.S.1981, uses 12 2404(B). disagree. der § language her, towards and forces her sodomy to The of a part series of continu him, accompany offenses, there is no ing such, threat of imme and as was admissible as great diate and bodily part harm to the woman. gestae. of the res Carson v. We find this patently to be frivo P.2d 499 lous. light In foregoing, above and judgment appealed and sеntence from is Appellant also that his con AFFIRMED. viction must be vacated because the State prove failed to prosecutrix failed to degree
resist reasonable under the apparent ap circumstances. The basis for pellant’s argument prosecutrix is that
was neither stabbed nor Again, beaten. we
find appellant’s argument totally without merit. To hold otherwise require KING, Ray Appellant, that an unarmed woman must resist her armed attacker the point receiving live-threatening wounds. This we refuse to Oklahoma, Appellee. The STATE of See, do. Barrett v. No. F-82-455. (Okl.Cr.1978); Holmes v. 505 P.2d (Okl.Cr.1973); Strunk v. Appeals Court of Criminal of Oklahoma. Aug. In his second appellant contends comments made prosecutor infringed upon his United States Constitutional fifth and fourteenth *2 Watson,
Kenneth Asst. Public C. Defend- er, City, appellant. Oklahoma for Gen., Turpén, Atty. Michael Mary C. F. Williams, Gen., Atty. City, Asst. Oklahoma appellee.
OPINION
BUSSEY,
Judge:
Presiding
appellant,
Ray King,
herein-
dеfendant,
after
referred to as the
First
Degree
convicted of Murder in the
review of
Court,
(1981). After a careful
No.
County District
Case
arresting offi-
record,
that the
we conclude
CRF-81-4504,
to a term of
was sentenced
cause and
clearly
probable
life,
cer
appeals.
and he
imprisonment for
hearing,
At the in-camera
stop was lawful.
stated,
facts testified to
Briefly
initially
testified that
Trooper Riddle
went to Mrs.
trial were that the defendant
Patrol
Highway
a call from
received
City
in Oklahoma
Georgia Bowens’ home
*3
The
barn.
dispatcher at the maintenance
4,
Mrs.
p.m.
arоund 5:30
October
the toll-taker
by
called
dispatcher had been
defendant, her
the
Bowens testified that
Bailey Turn-
on the
gate
at the Newcastle
cousin,
that he had come back
first
told her
drinking
was a
that there
pike who related
“to kill Wil-
(from
City)
Tulsa to Oklahoma
of the car.
description
gаve
driver and
a
Joann’s common
(Jones),
daughter
her
ly”
that the de-
testified
arresting trooper
The
the defendant
husband and that
law
the defendant
the car
scription matched
Bowens stated
gun.
her a
Mrs.
showed
driving.
she,
and son William were
that while
Joann
in the
Then,
trooper proceeded
аs the
room,
Joann
living
King
in the
asked
sitting
driver,
a radio
he heard
direction of the
him
(Joann)
why Willy had shot
if she
knew
Depart
City
the
broadcast of
Then Mrs. Bowens
prior.
a few months
of
that
the driver
Safety,
ment of Public
Joann a
testified that the defendant called
in ref
wagon was wanted
the blue station
she did not
liаr when she answered that
It is well
homicide.
possible
erence to a
King accused Joann of tell-
know and that
for an officer’s
that
the basis
established
defendant)
raped
ing
(the
that he
had
Willy
a crime
suspect
a
has committed
belief that
The
her. An
ensued.
defendant
sources, i.e., a radio
can come from outside
Joann; whereupon she
threatened to shoot
State,
(Okl.
Nealy v.
Next, the defendant contends considering appears the error by overruling court erred his motion for a mistrial after a State’s witness testified to verdict. We cannot have determined particularly say exactly 1. See con- witness’ last A. And I couldn’t answer the words that cerning was, alleged said, see, they my the defendant’s of witness’ the reasons but sister well, no, sister: said reason he said — that — got me the it seems reason that he shot to right. something hap- All Did unusual Q. suppose he when was because pened —he at that [sic] time? raped my sister. Yes, A. sir. happened, What William? Q. judge’s admonition was as follows: Okay. When I A. went in the house and sit gentlemen down, THE Ladies and COURT: going Ray ques- I was to ask jury, you arе reminded that we’re here con- Bobby Boy, tion about Chism. And he said: thing cerned one and that’s you anything I could tell about Bob Chism. was set out in offense that the Information pay preach. have to You’ll me to Someone you. So, earlier been read to pay which has have to I me to minister. otherwise, of, through, you, If inadvertence or kind kind him of turned off to be- perhaps fellow, looking you is made to an up I some reference offense cause was to this that, know, bearing long okay. other it has no on this case for a time. than And — ignore put your you happened? to it and it out Then what and are Q. talking my He A. started minds. to sister. you anyone Did hear the Is here who cannot do that? conversation? there Q. something so, up IA. remember he said hand. like: You If hold know, you’re got my they put the reason I And All can it out of their shot. indicate you sister told him that he was are admonished this a liаr. minds. And you any Did hear further so. conversation? Court to do Q. alleged reasons, conclude that error determined the foregoing judgment For hereby and sentence from is AF- appealed the verdict in view of all the other evidence. FIRMED. though We also note that even trial, objected to the alleged remark BRETT, J., concurs. properly preserved error was not for this general Court’s review because of the lan CORNISH, J., dissents. guage used in his motion new trial. CORNISH, Judge, dissenting:
Nutter v.