Joshua Lee Masters v The State Of Oklahoma

F-2004-63

Filed: Oct. 19, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Joshua Lee Masters appealed his conviction for Rape by Instrumentation. Conviction and sentence were affirmed, but the case was sent back for resentencing. Judge Lile dissented.

Decision

The Judgment of the district court is AFFIRMED. The case is REMANDED to the district court for reconsideration of sentence under the correct punishment range, and for nunc pro tunc correction of the Judgment and Sentence to reflect the offense of conviction as Rape by Instrumentation in the Second Degree.

Issues

• was there sufficient evidence to prove that Appellant was guilty of Rape by Instrumentation because the State failed to prove that the alleged victim was unconscious of the nature of the act?
• was Appellant incorrectly sentenced under the penalty range for First Degree Rape when he was charged with and convicted of acts amounting to Second Degree Rape?

Findings

• the evidence was sufficient to prove that Appellant was guilty of Rape by Instrumentation
• the court erred in sentencing Appellant under the penalty range for First Degree Rape

F-2004-63

Oct. 19, 2004

Joshua Lee Masters

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, PRESIDING JUDGE:

Appellant, Joshua Lee Masters, was convicted after a bench trial in Bryan County District Court, Case No. CF-2003-304, of Rape by Instrumentation (21 O.S.2001, § 1111.1). On November 18, 2003, the Honorable Rocky L. Powers, Associate District Judge, sentenced Appellant to ten years imprisonment, with the last five years suspended on conditions of probation. Appellant timely filed this appeal.

Appellant raises the following propositions of error:
1. The evidence was insufficient to prove that Appellant was guilty of Rape by Instrumentation because the State failed to prove that the alleged victim was unconscious of the nature of the act.
2. Appellant was incorrectly sentenced under the penalty range for First Degree Rape when he was charged with and convicted of acts amounting to Second Degree Rape.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we AFFIRM Appellant’s conviction, but REMAND for resentencing and correction of the Judgment and Sentence.

As to Proposition 1, Rape by Instrumentation is committed when the victim is unconscious of the nature of the act and this fact is known to the accused. 21 O.S.2001, §§ 1111(A)(5), 1111.1. The victim herein was aware that the acts were being committed, but was led to believe the actor was her husband, not Appellant, and Appellant used this fact to his advantage. In light of the plain and ordinary meaning of the statutory language at issue, and the particular facts in this case, we have no difficulty concluding that the complainant was not aware of the nature of the acts being committed, and that fact was known to Appellant at the time. Id.; Ex parte Childers, 1957 OK CR 44, I 6, 310 P.2d 776, 777-78; see also Stadler v. State, 1996 OK CR 23, 919 P.2d 439, 442 (Lumpkin, J., concurring in result). Proposition 1 is denied.

As to Proposition 2, the Judgment and Sentence does not specify the degree of Rape by Instrumentation that Appellant was convicted of. The State concedes that it never alleged or proved either of the special circumstances which would elevate Appellant’s conduct to First Degree Rape by Instrumentation. 21 O.S.2001, § 1114. The trial court’s imposition of sentence in light of the range applicable to First Degree Rape by Instrumentation was therefore plain error. Fite v. State, 1993 OK CR 58, 1 6, 873 P.2d 293, 295. Because we cannot say how application of the correct punishment range would have affected the trial court’s decision, we hereby REMAND to the district court for resentencing, and for nunc pro tunc correction of the Judgment and Sentence to reflect that Appellant was found guilty of Rape by Instrumentation in the Second Degree. Kamees v. State, 1991 OK CR 91, 9 20, 815 P.2d 1204, 1206.

DECISION

The Judgment of the district court is AFFIRMED. The case is REMANDED to the district court for reconsideration of sentence under the correct punishment range, and for nunc pro tunc correction of the Judgment and Sentence to reflect the offense of conviction as Rape by Instrumentation in the Second Degree.

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Footnotes:

1. 21 O.S.2001, § 1111.1
2. 21 O.S.2001, §§ 1111(A)(5), 1111.1
3. 21 O.S.2001, § 1114
4. Fite v. State, 1993 OK CR 58, 1 6, 873 P.2d 293, 295
5. Kamees v. State, 1991 OK CR 91, 9 20, 815 P.2d 1204, 1206

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111.1 (2001) - Rape by Instrumentation
• Okla. Stat. tit. 21 § 1111 (2001) - Elements of Rape
• Okla. Stat. tit. 21 § 1114 (2001) - Special Circumstances for First Degree Rape

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:

• Ex parte Childers, 1957 OK CR 44, I 6, 310 P.2d 776, 777-78
• Stadler v. State, 1996 OK CR 23, 919 P.2d 439, 442
• Fite v. State, 1993 OK CR 58, I 6, 873 P.2d 293, 295
• Kamees v. State, 1991 OK CR 91, 9 20, 815 P.2d 1204, 1206