Virgil Edwаrd STEELE, Appellant, v. The STATE of Oklahoma, Appellee.
No. M-88-755.
Court of Criminal Appeals of Oklahoma.
Aug. 16, 1989.
778 P.2d 929
For his third and final proposition, appellant argues that several “bad faith” questions аsked by the State denied him a fair trial. However, appellant failed to cite any relevant authority to support his various claims. “This Court will not consider on rеview arguments which are neither presented clearly nor supported properly.” Fuller v. State, 751 P.2d 766, 768 (Okl.Cr. 1988). Appellant‘s third proposition is denied.
Finding no error, judgment and sentence is AFFIRMED.
LANE, V.P.J., concurs.
PARKS, P.J., and LUMPKIN, J., concur in result.
Robert E. Christian, Duncan, for appellant.
Robert H. Henry, Atty. Gen. and Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
PARKS, Presiding Judge:
Appellant, Virgil Edward Steele, was tried by jury and convicted of Assault and Battery (
On February 16, 1988, Melissa Davis was waiting at Chickasha High School for a friеnd to give her a ride home. Appellant approached her and asked if she knew a student named Gary Moore. She replied in the negative and turned tо leave, but appellant grabbed her and jerked her backwards. Davis screamed and appellant let her go. He then left the school grounds. Davis reрorted the incident to the assistant principal, who notified the police.
The next day, appellant was stopped for a traffic violation by Officer Scott Airington and agreed to follow him to the police station for questioning regarding the incident at the high school. Appellant admitted grabbing Davis, but stated he did not intend to frighten or hurt her. Davis identified him as the man who grabbed her.
As his first assignment of error, appellant urges that the trial court abused its discretion by refusing to grant a continuаnce. Appellant claims a continuance was necessary to allow him to prepare for a witness who was endorsed by the State on the day before trial.
Next, appellant argues that error occurred when the State was permitted, over objection, to read the verification clause of the Information. We find Perez v. State, 614 P.2d 1112, 1114-15 (Okla. Crim.App.1980) to be dispositive of this issue. In Perez, this Court agreed that it was error to read the verification clause of the Information to the jury. Howеver, the error was cured by an instruction which informed the jury that the Information could not be considered as evidence of guilt. The same situation is present here. The verification clause was read to the jury; however, the jury was informed it could not be considered evidence of guilt. Hence, the error was cured by this instruction. This assignment is without merit.
In his third proposition, appellant claims it was error to allow the victim to testify that appellant had been at the school on previous occasions. Appellant urges that such evidence was irrelevant as it merely served to “paint the [appellant] as a person who hаd habitually roamed around school yards preying on children.” Brief of Appellant, at 4. At trial, the State argued that such evidence was relevant to provе identity. The prosecutor stated this evidence was relevant because the incident took less than one minute, and appellant grabbed Davis from behind, thеreby hindering her view of his face. We agree that such evidence was relevant. See
Our next inquiry is whether this relevant evidence was nevertheless inadmissible beсause of its prejudicial effect.
As his fourth assignment of error, appellant, relying on Armstrong v. State, 51 Okla. Crim. 407, 2 P.2d 100 (1931), urges that the force or violence necessary to constitute a battery must be direct and of such a nature to produce physical injury. The trial court instructed the jury according to Oklahoma Uniform Jury Instructions-Criminal, Instruction Number 420, which states that “any touching of a persоn regardless of how slight may be sufficient to constitute force....”
We agree that the statute under which appellant was prosecuted,
Appellant relies on Armstrong, 2 P.2d at 100, to support his assertion that force must be direct and of a nature to produce injury. In Armstrong, this Court determined there was insufficient evidence to support a conviction for assault and battery. There, the defendant аsked the prosecutrix to be quiet because she was disturbing an ill person. He led her by the arm away from the room of the ill person. Without explanation, this Court reversed the conviction. After review, we believe the focus of Armstrong was the “unlawfulness” and “wilfulness” of the defendant‘s behavior rather than the amount of force use. Id. Thus, we disagree with appellant‘s contention that Armstrong requires force sufficient to cause injury.
Adoption of the general rule that only the slightest force or touching is necessary to constitute the requisite element of force is consistent with both the unifоrm instructions adopted by this Court and other statutory provisions regarding the definition of force. For example, when addressing the degree of force necеssary to constitute a robbery, the legislature has stated the degree of force is immaterial. See
Finally, appellant asserts his sentence is excessive. “Unless the sentence is so excеssive as to shock the conscience of this Court, we will decline to enter an order of modification.” Scales v. State, 737 P.2d 950, 954 (Okla.Crim.App.1987). In the present case, the sentence impоsed was within statutory limits. After review, we do not believe the sentence imposed warrants modification. See Geary v. State, 709 P.2d 690, 695 (Okla.Crim.App.1985). This proposition is without merit.
For the reasons discussed above, the judgment and sеntence is AFFIRMED.
LUMPKIN, Judge, specially concurring.
As stated in my separate opinion in State v. Hammond, 775 P.2d 826 (Okl.Cr.1989), I concur with the court‘s determination that “only the slightest touching is necessary to constitute the ‘force or violence’ element of battery.” I further concur with the court‘s analysis of Armstrong v. State, 51 Okl.Cr. 407, 2 P.2d 100 (1931), and the proper application of that decision to the offense of battery.