*1 cause and the is reversed Tax Commission Tax Commission.
is remanded SIMMS, V.C.J.,
LAVENDER, WATT, JJ., concur.
KAUGER and JJ., OPALA, concur
HARGRAVE
part; dissent WILSON, J.,
HODGES, C.J., and ALMA
dissent. McARTHUR, Dewayne
Kenneth Oklahoma, Appellee. STATE
No. F-88-986. Appeals Oklahoma.
Court Criminal
Oct.
Degree (21 Rape 1114) § (Count I), Robbery Dangerous With a Weapon (21 O.S.1981, 801) (Count II), and § Kidnapping Purpose (21 For of Extortion O.S.1981, 745) (Count III) in Pottawato- County mie District Court Case No. CRF- 87-297, before the Honorable Glenn Dale Carter, Judge. Appellant District was sen- ninety-nine (99) tenced imprison- I, ment thirty on Count years imprison- II, ment ninety-nine years imprisonment on Count III. The sen- tences were ordered to run consecutively. We affirm in part and reverse in evening On the of November appellant entered a Shawnee convenience purchased store and gaso- four dollars of later, line. Moments appellant reentered clerk, R.T., telling store he had purchased overrun the amount by thirty Believing appellant cents. pay wished to thirty cents, the additional stepped R.T. behind the counter to money. collect the Appellant followed R.T. behind the counter said, up.” “This is a stick After forc- ing open R.T. to register, appel- cash lant took the bills from it. R.T. testified during the robbery appellant “had a bag hand,” over his and that she could not bag. see what was inside the R.T. admit- weapon. ted that she never saw a robbery, appellant After the forced R.T. into his car. R.T. was forced to sit on the passenger’s floor board on the side with facing away appellant. her head R.T. appellant something testified held “very very sharp” hard and to her back as he Freed, Rodney Shawnee, K. Trial Coun- drove the point, car. At one R.T. asked sel, Smith, Allen Appellate Asst. Public De- appellant stop the car and let her out. fender, Norman, Counsel, Appellate ap- for Appellant responded, up “Shut or I will pellant. split you open.” wide R.T. was driven to a Canavan, Atty., John G. Asst. Dist. raped. secluded area and R.T. later identi- Shawnee, Counsel, Henry, Trial Robert H. police line-up. fied at a Gen., Howard, Atty. Sandra D. Atty. Asst. Gen., City, counsel, appellate Oklahoma for Appellant’s first of error appellee. question impression raises a of first jurisdiction. Appellant OPINION O.S.1981, 801, under 21 provides
CHAPEL, Judge.
part, “[a]ny person
persons
relevant
who,
Dewayne McArthur,
Kenneth
any
with the use of
any
firearms or
by jury
was tried
convicted of First
other
weapons
attempts
firearm,
or a
knife or a facsimile of a knife
any
persons,
or who
person
rob or robs
any place
deadly weapon_”
Id. at 962. Suniville
attempts to rob
busi-
robs or
felony_”
guilty
of a credit union.
concerned the
ness ... shall be
prosecution’s
his
right
his
hand concealed inside
Appellant contends
With
*3
prove an
approached
to
essen-
and
pocket,
was insufficient
the defendant
coat
charged. Specifi-
teller,
of
crime
“This
rob-
saying,
tial
the
a
is a
element
threatened
testimony is
cally,
alleges that R.T.’s
he
it into a
Id.
bery, don’t turn
homicide....”
any weapon, much
prove
‘up
to
pocket
insufficient
was
teller testified “the
The
during
weapon,
used
dangerous
gun’
less
was
a
a
the counter like he had
over
robbery.
the
in his
‘something
pointing at me
that
”
four
pocket.’
Neither the teller nor
Id.
prosecu
the
upon
It is incumbent
the
saw the defendant exit
witnesses who
every element of the
prove
tion
each and
to
testify that the defendant was
bank could
charged beyond a reasonable doubt.
crime
gun, although
a
witness testi-
carrying
one
358, 90 S.Ct.
Winship, 397 U.S.
In re
something in his
had
fied the defendant
(1970). The use of a fire
4¾5 above, agree percent population. evi- 92½ As discussed cluded of the appellant Okay? used a dence failed to show dangerous weapon. the evidence irregardless is race. That And in clearly appellant showed that robbed percent country less than 25 of the fear, by victim force or and that means of So, population is black. take one-fourth guilty of the lesser-included is percent, you’re of that 7¥2 down to Robbery in the Degree. offense of First percentage about a and-a-half. O.S.1981, power This Court has the Honor, going MR. FREED: Your I’m reverse, under 22 O.S.Supp.1990,§ object to a conclusion drawn coun- affirm, appellant’s judgment testimony was, sel. The by the chemist Judgment sentence. this case should be *4 fact, irregardless in that —that this was modify District remanded to the Court to race, of which means race could not the judgment Robbery from With a Dan- be identified. gerous Weapon Robbery to in the First No, objection THE COURT: the—the Degree, appellant’s and to sentence arguing. is overruled. That’s what he’s (30) years thirty imprisonment to He’s entitled to draw his inferences. (20) imprisonment. twenty years you MR. CANAVAN: told [R.T.] —I mean there’s no doubt here. told [R.T.] error, In his second of you raped it was black man that her. prosecutor im contends The chemist testified that the hair on properly commented on scientific evidence definitely Negroid quali- was in shirt during closing argument. agree. Dur We ty. So, rapist we know that is a chief, ing prosecution its case in called So, antigen person. activity black Long, Long Ms. a forensic scientist. Ms. with come involved has to from a [R.T.] present conducted tests on semen stains And, again, telling as I’m black male. clothing compared victim’s them to you, population gets you half down
blood samples appellant. taken from Ms. percent, quarter to and then about Long type found that the stains contained 7¥2 gets you down to less than one less antigen appel B is consistent with percent. Now, you and-a-half do see how Long lant’s blood Ms. type. testified narrowing we’re this down now? (10)percent popu approximately ten of the lation donor ¡fc n n n could be the of the semen. sfc sfc Long Ms. further testified that re hairs Think that. to about We’re down almost “neg clothing trieved from the victim’s percent population over of the is ex- 98 roid characteristics.” cluded. previously (Tr. 162-164). This Court has held that evi- Long type by dence of the introduced Ms. fact, tolerates, in This Court State, is 719 P.2d admissible. Plunkett encourages a of free reasonable exercise 834, (Okl.Cr.1986); State, Driskell v. range speech argu dom and a of of wide (Okl.Cr.1983). However, 659 P.2d argument. during closing mentation argument, during closing prosecutor speech range argu freedom of and the expanded on the aforementioned evidence however, contemplated, mentation extend following: with the only evidence at trial and step go MR. CAN Let’s one to reasonable inferences drawn therefrom. AVAN: (Okl.Cr. population to going further. Half that is Scott v. 751 P.2d So, 1988). case, prosecutor’s already be female. we In the instant know your argument greatly half going “B” secretors are exceeded evidence So, percent popu- presented pre at trial. be female. if 15 of the No evidence was obviously concerning percentage lation she of fe is female—and sented raped population, percentage by a male—we’re down half of males in the or the 7¾ n that, percent. population, We’ve it in the which served as narrowed blacks percent. So, prosecutor’s down now to 7 ¥2 we’ve ex- a basis for “mathematical JOHNSON, V.P.J., LANE, J., sup were percentages These formula.” and in so concur. prosecutor solely plied argument be give
doing he ceased LUMPKIN, P.J., part in concurs prosecutor’s testimony. give gan to part. in dissents foundation and proper lacked comments LUMPKIN, concurring Presiding Judge, of statistical type of misuse constitute part/dissenting in in against warned this Court (Okl. State, 751 P.2d Brown v. to af- I the Court’s decision concur with com prosecutor’s Cr.1988). Although the I in Count Appellant’s firm the convictions clearly improper, forth above are ments set of the III and the modification and Count require not the error does find that However, I I. while sentence positive identifica light of the reversal application of the agree Court’s by R.T. appellant made tion of in 22 authority set forth will justice, we MODIFY interest of in the 1066, I the evidence is sufficient find I from nine for Count appellant’s sentence prior to affirm pursuant to our caselaw years impris fifty ty-nine Dangerous Robbery with a conviction of onment. Weapon. *5 adopts holding the in v. The Court State error, ap final In his Suniville, (Utah 1987), 961 as the 741 P.2d sentences are ex contends that his pellant O.S.1981, 801. analysis applicable to 21 support In modified. and should be cessive determined Supreme Court of Utah points to the argument, appellant of this not “subjective” analysis could be that a prior felony convictions that he has no fact Aggra- for to validate a conviction utilized physi not “complainant was and that the a Robbery person wherein a vated “[u]ses rape itself.” cally injured aside from firearm, knife or or a facsimile of firearm 12). find these Brief at We (Appellant’s deadly weapon a knife or a a facsimile of First, need arguments unpersuasive. ”, however, did find the State the Court II for Count as the sentence not address robbery [by proved the offense of remanded that count has been reversed reduced the conviction to force fear] modify Judgment and
with instructions resentencing. a remand for Furthermore, for the sentence Sentence. power possesses same This Court modified as previously I been Count has Supreme authority by the Court utilized above. We the result of errors identified judgment and remand modify the Utah to sentences, remaining have reviewed resentencing judgment for allowed punishment which are within 22 sentence. See statute, and circum light in of the facts 929, 1066, power modify 1067. The §§ they and conclude of this case stances always sentence has judgment of this Court. the conscience do not shock authority granted to this part of the been a deem further modification Accordingly, we authority to remand for resen- Court. State, 763 McBrain v. unwarranted. See statutory lan- to the tencing was added (Okl.Cr.1988). 125 P.2d 1990 with guage of Section enactment of Section reasons, I is foregoing For the review of does not ninety- Suniville as MODIFIED AFFIRMED presented in analysis of the issue imprison- end the (99) years fifty nine this case show that The facts of and RE- this case. II is REVERSED ment. Count saw a because modify the victim never District Court to MANDED bag How- Appellant kept a over his hand. Robbery in and sentence to judgment time, ever, victim, some- at one did maximum sen- Degree with the the First feel very sharp” hard and thing “very twenty years imprisonment tence of This Court bag pressed against her back. III is AF- imposed thereon. Count a conviction for the previously has affirmed judgment and sen- as to both FIRMED though even the victim never same offense tence. State, weapon. saw the reviewing See Wilson v. light .the most (Okl.Cr.1981). analy- P.2d 900 The Court’s prosecution, favorable to the any rational sis sets forth: trier of fact could have found the essential
Appellant first contends that charged beyond the evi elements of the crime dence at trial was insufficient Spuehler reasonable doubt.” v. support specifically the verdict. He (Okl.Cr.1985). P.2d 203-204 Since this argues dangerous weapon used, presents case a determination based on di- folding a six-inch bladed knife described evidence, rect and circumstantial and not information, in the was not introduced at just “subjective” analysis, judgment Joseph trial. Ward testified at trial that and sentence Robbery Danger- with a Wilson held a knife at his Al throat. Weapon ous in Count II must be affirmed. though testify Ward did not that he saw knife, he did feel it and cut his thumb on it. The information the use dangerous weapon.
of a In v. State
Hanna,
(Okl.Cr.1975),
Court ruled that violation of require does not use se, weapon, per but that the way in which an instrument is used is the ALLEN, Stephen Lee controlling determining factor in whether dangerous weapon. it is a In this case
Ward sharp object testified that a Oklahoma, Appellee. The STATE of held Joseph at his throat and that Wilson *6 threatened to cut his head off. There No. F-92-120. competent evidence from which the Appeals Court of Criminal of Oklahoma. jury could conclude weapon was used. Karlin v. 28, 1993. Oct. (Okl.Cr.1975). Id., P.2d 1181 637 P.2d at As Corrected Nov. 1993. interesting It is to note the similarity Rehearing Denied Dec. fact situation in this case and in Wilson. apply
The court fails to properly Wilson in
resolving presented by the issue the facts only
of this case. The real distinction be-
tween the two cases is that in Wilson
victim’s thumb was cut and here the victim sharp point
felt the in her back. This is analysis
where the factual differs from Suniville. The Court dealing purely
Suniville was with a “sub-
jective” analysis because the witnesses did any independent
not have sup- evidence to
port finding actually defendant pocket.
had a in his In the case
before this Court dealing we are not with a
purely “subjective” analysis analy- but an
sis which independent contains circum- support
stances finding Ap-
pellant actually had a knife in the sack.
The facts of this case contain both direct
and circumstantial requires evidence which “whether,
this Court to determine after