Ryan Anthony Van Winkle v State Of Oklahoma
F-2005-620
Filed: Sep. 22, 2006
Not for publication
Prevailing Party: Ryan Anthony Van Winkle
Summary
Ryan Anthony Van Winkle appealed his conviction for assault with a dangerous weapon and forcible oral sodomy. Conviction and sentence were reversed for the assault and affirmed for the sodomy. Judge Lumpkin dissented regarding the reversal of the assault conviction.
Decision
The Judgment and Sentence of the trial court on Count 2 is AFFIRMED. Count 1 is REVERSED with INSTRUCTIONS to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.
Issues
- Was there a violation of the statutory prohibition against multiple punishments and the Double Jeopardy Clause in Van Winkle's convictions for assault with a dangerous weapon and forcible oral sodomy?
- Did the trial court err in overruling Van Winkle's motion to suppress his statements to police?
- Did the trial court err in failing to give Van Winkle's requested instruction on voluntary intoxication?
- Did Van Winkle receive ineffective assistance of counsel at trial?
- Was Van Winkle denied a fair trial due to improper argument by the State during closing argument?
Findings
- the court reversed the assault with a dangerous weapon conviction with instructions to dismiss
- the court affirmed the forcible sodomy conviction
- the trial court did not err in overruling Van Winkle's motion to suppress
- Van Winkle's claim regarding the trial court's failure to give a voluntary intoxication instruction is moot
- Van Winkle failed to show ineffective assistance of counsel
- there was no plain error from the prosecutor's minor misstatement during closing argument
F-2005-620
Sep. 22, 2006
Ryan Anthony Van Winkle
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
A. JOHNSON, JUDGE:
Ryan Anthony Van Winkle, Appellant, was tried by jury in the District Court of Tulsa County, Case No. CF-2004-1395, and convicted of Count 1 – Assault with a Dangerous Weapon (21 O.S.2001, § 645) and Count 2 – Forcible Oral Sodomy (21 O.S.Supp.2002, § 888). The jury fixed punishment at five years imprisonment for Count 1 and eight years imprisonment for Count 2. The Honorable Rebecca Brett Nightingale sentenced Van Winkle accordingly and ordered the sentences to be served consecutively. From this judgment and sentence, he appeals.
This case raises the following issues:
1. Whether Van Winkle’s convictions for both assault with a dangerous weapon and forcible oral sodomy violate 21 O.S.2001, § 11A and the Double Jeopardy Clause;
2. Whether the trial court erred in overruling Van Winkle’s motion to suppress his statements to police;
3. Whether the trial court erred in failing to give Van Winkle’s requested instruction on voluntary intoxication;
4. Whether Van Winkle received ineffective assistance of counsel at trial; and
5. Whether Van Winkle was denied a fair trial by improper argument by the State during closing argument.
We have reviewed these issues and find only the first claim merits discussion.
Multiple Punishment
Van Winkle contends his convictions for forcible sodomy and assault with a dangerous weapon violate Oklahoma’s statutory prohibition against multiple punishments for a single act (21 O.S.2001, § 11) and the Double Jeopardy Clause. He contends that the crimes merge because they are part of the same act (the assault with a dangerous weapon is the same act that made the sodomy forcible). Van Winkle raised this issue in the sentencing hearing. Title 21 O.S.2001, § 11A provides that an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions but in no case can it be punished under more than one[.]
The proper analysis of a Section 11 claim focuses on the relationship between the crimes. Jones U. State, 2006 OK CR 5, ¶ 63, 128 P.3d 521, 542; Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126. One act that violates two criminal provisions cannot be punished twice, absent specific legislative intent. This analysis does not bar the charging and conviction of separate crimes which may only tangentially relate to one or more crimes committed during a continuing course of conduct. Davis, 1999 OK CR 48, ¶ 13, 993 P.2d at 126-27. Section 11 is not violated where offenses arising from the same transaction are separate and distinct and require dissimilar proof. Jones, 2006 OK CR 5, ¶ 63, 128 P.3d at 543. This Court conducts traditional double jeopardy analysis only if Section 11 does not apply.
The question presented here is whether Van Winkle’s assault was a separate and distinct act from the sodomy or whether it was part of the same act that made the sodomy forcible. The evidence showed Van Winkle grabbed the victim and put a box knife to her throat, threatened her, and continued to hold the knife as he straddled her and negotiated for sex. Fearing for her safety she agreed to sodomize Van Winkle if he put the knife down, got off her, and sat in a chair. To prove forcible sodomy the State had to show, among other things, that Van Winkle used threats of force or violence accompanied by the apparent power of execution. The victim testified on re-direct that she agreed to sodomize Van Winkle because she believed it was the only way she would be able to leave alive since he threatened her with the knife.
It is apparent that the charges arise out of the same event. The threats of force or violence to accomplish the sodomy came from Van Winkle holding the box knife to his victim and threatening to use it if she would not have some kind of sex with him. This series of events is distinguishable from those cases wherein one crime is completed before another one begins. The force the defendant employed here is an inextricable part of the crime of forcible oral sodomy. Under the circumstances the assault and sodomy are not separate and distinct crimes. Van Winkle’s assault with a dangerous weapon conviction must be reversed with instructions to dismiss.
The remainder of Van Winkle’s claims do not require relief. The trial court did not err in overruling his motion to suppress. Van Winkle’s claim that the trial court erred in failing to give his requested instruction on voluntary intoxication is moot because his assault with a dangerous weapon conviction must be reversed. We find that Van Winkle has failed to show that trial counsel was ineffective for failing to secure an expert to testify about methamphetamine intoxication. Nor do we find that he has shown plain error from the prosecutor’s minor misstatement about his defense in closing argument.
DECISION
The Judgment and Sentence of the trial court on Count 2 is AFFIRMED. Count 1 is REVERSED with INSTRUCTIONS to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.
APPEARANCES AT TRIAL
KEITH O. MCARTOR
ATTORNEY AT LAW
406 S. BOULDER
TULSA, OK 74103-3821
ATTORNEY FOR APPELLANT
TODD CHESBRO
ASST. DISTRICT ATTORNEY
500 S. DENVER, STE. 900
TULSA, OK 74103
ATTORNEYS FOR APPELLEE
APPEARANCES ON APPEAL
BOBBY G. LEWIS
OKLAHOMA INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
LAURA E. SAMUELSON
ASST. ATTORNEY GENERAL
2300 N. LINCOLN BLVD., STE. 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE
OPINION BY: A. JOHNSON, J.
CHAPEL, P.J.: Concur
LUMPKIN, V.P.J.: Concur in Part, Dissent in Part
C. JOHNSON, J.: Concur
LEWIS, J.: Concur
Footnotes:
- 21 O.S.2001, § 645
- 21 O.S.Supp.2002, § 888
- 21 O.S.2001, § 11A
- 21 O.S.2001, § 11
- 21 O.S.2001, § 645
- 21 O.S.2002 Supp. § 888
- 21 O.S.2001, § 645
- 21 O.S.2002 Supp. § 888
- 21 O.S.2001, § 11
- 21 O.S.2002 Supp. 888
- 21 O.S.2002 Supp. 888(B)(1)
- 21 O.S.2002 Supp. 888(B)(2)
- 21 O.S.2002 Supp. 888(B)(3)
- 21 O.S.2006 § 1287
- 21 O.S.2001, § 11
- 21 O.S.2002 Supp. 888
- 21 O.S.2001, § 11
- 21 O.S.2001, § 645
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 645 - Assault with a Dangerous Weapon
- Okla. Stat. tit. 21 § 888 - Forcible Oral Sodomy
- Okla. Stat. tit. 21 § 11 - Multiple Punishments
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
No US Code citations found.
Other citations:
No other rule citations found.
Case citations:
- Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124
- Jones v. State, 2006 OK CR 5, I 63, 128 P.3d 521
- Hunnicutt v. State, 1988 OK CR 91, I 8, 755 P.2d 105
- Gentry v. State, 1977 OK CR 152, I 19, 562 P.2d 1170
- Salyer v. State, 1988 OK CR 184, I 9, 761 P.2d 890
- Lee v. State, 1983 OK CR 41, I 6, 661 P.2d 1345
- Davis v. State, 2004 OK CR 36, I 34, 103 P.3d 70
- State v. Goins, 2004 OK CR 5, I 7, 84 P.3d 767
- Bland v. State, 2000 OK CR 11, I 63, 89 P.3d 1124
- Hill v. State, 1973 OK CR 288, 511 P.2d 604
- Anderson v. State, 1998 OK CR, 972 P.2d 32
- Hammon v. State, 1995 OK CR 33, I 71, 898 P.2d 1287
- McDermott v. Wyoming, 870 P.2d 339 (Wyo. 1994)