Post v. State

ly, (1) wе find that: the sentence of death imposed under influence of

passion, prejudice, arbitrary other

factor; (2) supports jury’s evidence

finding statutory aggravating circum-

stances as 21 enumerated 701.12; sentence death disproportionate excessive or

penalty imposed in similar cases con- after

sidering 21 the crime and the defendant.1

O.S.1981, 701.13(C)(3). stated,

For judg- the reasons herein appealed

ments and sentences from should

be, hereby and the same are AFFIRMED. BRETT, JJ.,

PARKS concur in re-

sults. Jr., Appellant,

James Lester POST Oklahoma, Appellee.

STATE

No. F-84-303. Criminal Appeals of Oklahoma. 26,

Feb. 14,

Rehearing April Denied State, 865, 203, 177; (Okl.Cr. 1984); 1. Robison v. 677 P.2d 1080 464 U.S. 104 S.Ct. 78 L.Ed.2d State, (Okl.Cr.1984), ‍‌​‌‌​‌​‌‌‌​‌‌​​​‌​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌​​‌‌‌​‌‍State, (Okl.Cr.1982), Dutton v. 674 P.2d 1134 Parks 651 P.2d 686 cert. ce — denied, -, 3548, denied, 1155, 800, rt. U.S. 104 S.Ct. 82 459 U.S. 103 S.Ct. 74 L.Ed.2d 850; State, L.Ed.2d (Okl.Cr.l983), 669 P.2d 285 State, (1983); (Okl.Cr.1983), Jones v. 648 P.2d 1251 Stafford grounds, other vacated on denied, 1155, t. 103 S.Ct. cer (1984); S.Ct. L.Ed.2d 1002; Hays v. 617 P.2d 74 L.Ed.2d (Okl.Cr. 1983); and, Stafford vacated on other (Okl.Cr. 1980); Chaney grounds, 467 U.S. (Okl.Cr.1980), denied, P.2d 269 rt. ce (1984); L.Ed.2d Davis v. denied, (Okl.Cr.1983), cert.

appellant. appellant She also claimed anal- ly sodomized her and forced her to commit appellant sexually an act of fellatio. As her, repeatedly assaulted he also her beat eye, injury and caused a severe to her according testimony. Finally, to H.C.’s dress, apрellant they allowed H.C. to together. left the house H.C. and the pellant eventually separated, and H.C. went to a friend’s house and called her husband. Townsend, Raymond ophthalmolo-

Dr. an gist, eye, testified H.C. was blinded in the eventually surgically was removed. Purcell, Defender, Thomas Asst. Public He also testified that had H.C. appellant. for eye surgery, receivеd which had rendered Gen., Turpén, Atty. Michael C. Robert W. eyes highly susceptible injury. her to A Cole, Gen., Atty. City, Asst. Oklahoma for forensic chemist testified that swabs taken appellee. during rape examination of H.C. indicated presence sperm in the rectum. OPINION Appellant testified that he met H.C. at PARKS, Presiding Judge: bar, go and asked her to to the house Post, Jr., appellant, James Lester with him. He claimed all of the sexual charged by Information in the District acts, including anal intercourse and oral Rogers County, Court of Case No. CRF- performed copulation, voluntarily were 83-17, Rape, for the offense of two counts acts, completing After sex H.C. Nature, Against Maiming, of the Crime asleep. appellant suddenly fell He аwoke Felony. After Former Conviction of a A going through he discovered his when H.C. jury acquitted appellant Rape, Appellant pants pockets. testified he be- convicted him for the two counts of Crime attempting to his lieved H.C. was steal Nature, Against Maiming. money, anger and he struck her in several (10) years recommended a sentence of ten times, though he did intend to Against on each count of the Crime Na- her. He and H.C. then dressed and left the ture, (15) years imprisonment and fifteen together. ‍‌​‌‌​‌​‌‌‌​‌‌​​​‌​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌​​‌‌‌​‌‍walking house After several Maiming. We reverse. together, appellant asked that blocks H.C. further, accompany her she as According testimony produced by explain presence would not be ablе to his victim, H.C., alleged went her husband. Claremore, Eye Red Saloon Okla- morning January on the homa appeal his On saloon, appellant, While at the she met the assignments challeng- raises seven of error who invited her to his house to watch tele- convictions, ing each of the and the sen- accepted and drink beer. vision H.C. imposed. tenсes appellant’s pair invitation. The left bar, purchased nearby some beer at a I. store, appellant’s home. and went When house, they appellant alleg- arrived at the We first deal with claim that Against for the Na- edly demanded sex. H.C. claimed she was his convictions Crime forced, ture, 1981, 886,1 knife-point, to have sex with the rest on an uncon- Agаinst Every person the Crime who is of the detestable 1. 21 886 defines nature, and abominable crime com- Nature as follows: stitutional basis. Rape charge. asserted Appellant alleges the convic- grounds: First, his claim on two he claims tions for the Crime Nature cannot the statute unconstitutionally vague. permitted stand, they are violative Second, statute, he applied claims the Although previ- we activity non-violent consensual between ously rejected a similar claim in Warner v. private, adults in priva- violates his (Okl.Cr.1971), agree we cy under the United States Constitution. that more recent decisions of the United agree Because we second Supreme States support Court lend claim, we nеed not address the first. pellant’s view. case, above, In this as noted jury was right privacy by asserted presented alleging with evidence two en- appellant is not explicitly mentioned either tirely prosecutrix, different scenarios. The in the text or amendments to the Federal by State, through presented testi- Constitution; yet it has been called “the mony аppellant that the used threats and comprehensive most rights right sodomize, rape, violence to and force her to most by valued civilized man.” Olmstead commit an appellant, act of fellatio. The States, 438, v. United 478, 48 however, prosecutrix claimed the was a 564, 572, (1928) S.Ct. 72 (Bran L.Ed.2d 944 willing participant in the sexual activities deis, J., dissenting). right, This as we un day question. occurred on the He it, “right derstand is the independence eye claimed the injury was inflicted after making certain important kinds of deci the sexual activities had ceased. sions, with a right concomitant to conduct charged alleging with two counts com- oneself accordance decisions, with those Against Nature, mission of the Crime one by governmental undeterred restraint...” Rape, count of and a count of Maiming. People Onofre, 476, 485, v. 51 N.Y.2d 415 By its statutory language, the Crime 936, 939, 947, N.E.2d 434 N.Y.S.2d 949 Against prohibits consensual, Nature (1980). Accord Slayton, Lovisi v. 363 nonconsensual, well as acts of unnatural 620, F.Supp. (E.D.Va.1973), 625-26 aff'd, copulation. Slaughterback State, See v. (4th 1976). 539 F.2d 349 Cir. The modern (Okl.Cr.1979). 594 P.2d 780 Accordingly, judicial conception of privacy constitutional jury was instructed that consensual originated Connecticut, in Griswold v. 381 intercourse would rape,2 not constitute but 479, 1678, U.S. S.Ct. L.Ed.2d 510 no mention was made of consent as a Griswold, In Supreme factor in the Against Crime Nature. Dur- implicit found the existence of an constitu ing its jury deliberations the sent a note right tional privacy “penumbras” in the asking the trial court whether the Crime provisiоns. of various constitutional Writ Against Nature is “a crime with or without ing for the Douglas Justice declared consent in the State of Oklahoma? [sic]”. specific guarantees “that in the Bill The trial jury court instructed the Rights penumbras, “consent have formed is not an element emana the Crime [of Against Nature], guarantees tions from those help give nor is the crime less of a crime if committed with a them life and consenting per- substance.” Id. at son.” The returned a implicit guarantee verdict of S.Ct. 1681. This on both Against counts of the privacy “fully Crime Na- makes meaningful” the ex ture, acquitted press rights contained the document.3 beast, (1917) pun- ], mitted with mankind or with a (copulation per and rectal coitus by imprisonment anus) State, penitentiary (Okl.Cr. ishable [Berryman v. (10) 1955) exceeding years. ten ].

We have determined that the Crime 2. See 21 §§ Nature including includes unnatural sex acts copulation per os between females [Warner 3. More specifically, Douglas Justice stated that (Okl.Cr.1971) ], cunnilingus guarantees “[v]arious create zones of [Clayton (Okl.Cr. ], 1984) P.2d pe- of association contained in the DeFоrd, fellatio Parte [Ex 14 Okl.Cr. 168 P. numbra of the First Amendment is one ... [t]he iscuity Goldberg, joined by the Chief Jus- or misconduct non-married Justice between Brennan, P.2d at specially persons.” con- tice and Justice Warner emphasize curred “to the relevance [the Amendment to the Court’s hold- Ninth] We are now informed that “the outer (Gold-

ing.” 85 S.Ct. at 1683 Id. at privacy limits” of the “have not berg, cоncurring). Pop Carey been ‍‌​‌‌​‌​‌‌‌​‌‌​​​‌​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌​​‌‌‌​‌‍marked the Court.” Int., ulation Servs When we first were faced with issue 52 L.Ed.2d 675 of extramartial sexual Warner Indeed, Baird, 405 Eisenstadt v. 489 P.2d we were limited Supreme indi Court cases consideration Connecticut, supra. cates us that the constitutional Griswold v. Griswold held, principles explained privacy, appeared which at first to be fami based on the above, ly-based, protection could not constitution- that the State affords decisions ally regulate contracep- the distribution and actions of individuals outside the mar persons. lan- riage tives to married Certain union. See also Planned Parent guage opinion in the indicated that Danforth, hood v. 96 S.Ct. “right privacy” was limited to decisions (right tо abor committed, made, within the mari- and acts regulated compel tion cannot be absent a Douglas had relationship. tal Justice writ- interest). Eisenstadt, ling In the state ten: banned, unconstitutional, Massa Court right privacy regulation contraceptives chusetts’ of

We deal with a of older Rights Bill our single Although than the of than adults. the Court’s hold —older parties, еqual protec political ing primarily older than our school on was based system. Marriage coming together grounds, is a tion relied on the the Court also worse, hopefully or for endur- right privacy, better and wrote: ing, degree being of and intimate right It is true that in the of Griswold pro- sacred. It is an association that privacy question inhered the marital life, causes; way not motes a of a harmo- couple relationship. Yet the marital faiths; living, ny political a bilat- entity mind independent not an with a loyalty, eral not commercial or social own, its an association and a heart of projects. Yet it is an association for as separate of individuals each with a two purpose any a involved in our noble makeup. If intellectual and emotional prior decisions. right privacy anything, of means it is the individual, or according- right at the of the married Id. at 85 S.Ct. 1682. We gov- single, to from unwarranted ly Supreme held that “the United States be free Court, fun- ernmental intrusion into matters so in the landmark case of Griswold v. Connecticut, pro- damentally affeсting person a as the de- supra, does not State of beget regulation prom- cision whether to bear or a child. hibit the state’s of sexual Goldberg "penum- prohibition against 4. Justice did not believe that Amendment in its the Third necessary analysis quartering in time of bras” were Constitutional of soldiers 'in house’ had held that: peace the consent of the ownеr is an- because the Court without The Fourth Amend- other facet that and the Fourteenth Amendment absorbs explicitly ‘right people, to be ment affirms specifics plies those of the first to the States houses, persons, papers, and secure in their eight express amendments which fundamen- effects, against unreasonable searches sei- rights. languagе history personal tal Self-Incrim- zures.’ The Fifth Amendment in its Amendment reveal of the Ninth Clause enables the citizen to create ination the Constitution believed that Framers of government may privacy zone rights, pro- there are additional fundamental him to surrender to his detriment. The force governmental infringement, tected from provides: ‘The enumeration Ninth Amеndment alongside those fundamental which exist Constitution, rights, of certain shall not in the eight rights specifically mentioned in first deny disparage others re- be construed to constitutional amendments. ’’ by people.’ Id. tained S.Ct. at 1683-84. Id. can it appears right Id. at 92 S.Ct. at 1038. Nor be now to us that the privacy, that, opinion, through Supreme said Eisenstadt as formulated in- right privacy merеly extended to right to cludes the select adult consensual regarding procreative decisions individual partners. sex Exercise of right cannot ignore choice. a statement would Such proscribed by the State in the absense Supreme Court’s reliance in Eisenstadt justification. Wade, a compelling Roe v. opinion Georgia, its in Stanley eаrlier 22 L.Ed.2d L.Ed.2d 147 See also Griswold Supreme In Stanley, Connecticut, supra 497-498, 381 U.S. at an view ob- held that individual’s (Goldberg, S.Ct. at 1688-1689 concur- privacy his or her scene material ring). regulated by home not be State. could obviously pro- ‍‌​‌‌​‌​‌‌‌​‌‌​​​‌​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌​​‌‌‌​‌‍Stanley recognize did not deal it opinion We is the marriage, choice within many acts, creative or without that abnormal sexual evеn extended the involving adults, but instead consenting those mor are gratification. of sexual In addition However, matters ally reprehensible. this natural Court, Eisenstadt, citing Stanley, repugnance does compelling not create a following quote specifically set out the justification for regulation state Stanley opinion: from the Supreme activities. The deter Court has merely mined purchase fundamental is the to be because the “[A]lso free, except very contraceptives limited circumstanc- use of unmarried es, governmental persons intru- arouse indignation from unwanted would moral among segments community, sions into one’s broad of the “ pornographic or that the use of matеrials in ‘The makers of our Constitution un of in the one’s own home would to secure dertook conditions favorable general displeasure, provide voke does not happiness. They pursuit recog the of justification compelling regulate a either significance spiritual nized the of man’s Baird, supra, nature, activity. Eisenstadt v. feelings and of his intel See supra. v. State They only Stanley Georgia, and part lect. knew that a the private, demonstrate that con pain, pleasure and satisfactions of life failed to things. They persons in between adult could are to found material sensual acts protect their sought significantly society provide Americans in be harm so as to liefs, emotions, thoughts, regulation their their and state interest in compelling a the conferred, They twenty- their sensations. of such activities. The fact that Government, to be private two have decriminalized con states comprehensive of sodomy let alone—the most il sensual between adults further rights and the most valued civi harm society present lustrates that nо States, lized man.’ Olmstead v. United ly by these sexual acts. Riv caused See 72 era, Straight-Laced Judges: The Le Our (1928) (Brandeis, dissent L.Ed. in gal Position Homosexual Persons ing).” States, Hastings LJ. United (1979). 950-951 Baird, supra v. Eisenstadt quoting n. 92 S.Ct. at 1038 n. Stan- today that our decision no We stress ley Georgia, supra U.S. at validity of 21 way affects S.Ct. at application bestiality, forced its activity, un- foregoing activity For the above and rea sexual sexual of the sons, compelled public that our or deraged, we are to hold or commercial sexual State, supra, question not reach the decision Warner v. acts. We do premise homosexuality application since the based on the erroneous conduct is privacy is limited to decisions and statute to such not an issue simply to arising relationship. holding today It acts marital this case. Our application accordingly declare unconstitutional the 751. We have to the facts case. section 886 of this injury disfiguring held that a caused Maiming another does not constitute unless herein cannot stand un- convictions premeditated design injure donе “with principles opin- der the announced in this another,” specific requires a intent Accordingly, judgment hold the ion. we injury, although to inflict an not necessar- and sentence on each count of the Crime ily very disfigurement actually perpe- Nature must be reversed and re- proceed- manded to the District Court trated. DeArman Okl.Cr. ings opinion. inconsistent with 242 P. 783 Boulding See also 83 Okl.Cr. II. Boyce, Law, Accord Perkins & Criminal Turning remaining to the count of Maim- (3d Ed.1982). proof specific Without ing, find it must we be reversed disfigure, charge intent to prejudiced well. claims he was Maiming aggravated is reduced to assault requested when the trial court refused his battery. Savage supra. and See on the included instructions lesser offenses case, although bodily In this serious simple aggravated and assault and bat- victim, injury resulted to this tery. He claims that instructions injury. maintained he intended to cause no justified by lesser offenses were his testi- supported by testimony This claim was mony injuring that he had no intention ‍‌​‌‌​‌​‌‌‌​‌‌​​​‌​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌​​‌‌‌​‌‍of Townsend, of Dr. who stated that H.C.’s prosecutrix, simply lashed out “any poten situation kind of blow would trying when he awokе and found her tially previ break those sutures [from money pants. steal from his eye surgery] ous cause kind of simple We have held that both injury to have occurred.” aggravated battery assault and are find the trial court erred in its We failure maiming, lesser included offenses of appellant’s requested to deliver the instruc- that, cases, appropriаte instructions as aggravated tion on the lesser offense of to these lesser offenses should be delivered battery. jury. assault and It is clear that the Savage (Okl.Cr.1974). Legislature appellant herein assaulted the victim Our has defined with “any fists, causing great assault as willful and unlawful at- bodily injury his tempt or offer with force or violence to do eye. accоrdingly willWe reverse and re- corporal injury to another.” 21 O.S. charge mand for a new trial on the Battery “any is defined as § maiming. willful unlawful use of force or vio- judgment and sentences on each upon person lence of another.” 21 O.S. hereby count are REVERSED and RE- battery An assault and be- § pro- MANDED to the District Court for “[wjhen aggravated great bodily comes in- ceedings opinion. not inconsistent with upon person is inflicted assaulted.” (1). Specific intent is § BRETT, J. concurs. aggravated not an element of assault and Madden, battery. State v. BUSSEY, J., dissents. (Okl.Cr.1977). Legislature has defined Maiming as follows: BUSSEY, Judge, dissenting: who, Every person premeditated de- respectfully I must dissent. This Court another, sign upon inflicts his long recognized that consent is not an аny disfigures person injury which his See, element of the crime nature. personal appearance or disables O.S.1981, 886; organ body seriously

member or Canfield (Okl.Cr.1973). physical vigor, Slaughterback P.2d 987 diminishes his (Okl.Cr.1979). maiming. Clearly,

lili legislative it is a judicial proferred function and not a instructions on simple aggra- function to change amend statutes if a vated assault battery. Therefore, I am opinion enacted. judgments that the and sen- tences should be affirmed.

Additionally, I dissent to the reversal of the maiming conviction. Since the victim eye attack,

lost her as a result of the

appellant’s squarely actions fall within the

provisions O.S.1981, 751, of 21

trial court properly denied the

Case Details

Case Name: Post v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 26, 1986

Citation: 715 P.2d 1105

Docket Number: F-84-303

Court Abbreviation: Okla. Crim. App.