Jack Albert Lowe v The State Of Oklahoma

F-2000-897

Filed: Sep. 21, 2001

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Jack Albert Lowe appealed his conviction for Rape in the First Degree by Instrumentation. His conviction was modified to Lewd Molestation, and his sentence was changed to life imprisonment. The court found that there wasn't enough proof for the original charge, but they recognized a lesser crime in the case. The sentence for First Degree Burglary was kept at twenty years. Judge Strubhar disagreed with the decision.

Decision

The Judgment on Count II is MODIFIED to Lewd Molestation and the Sentence is MODIFIED to life imprisonment, to be served consecutively with the twenty (20) year sentence for First Degree Burglary. The Judgment and Sentence on Count I is AFFIRMED.

Issues

• was the trial evidence insufficient to prove beyond a reasonable doubt the essential element of penetration?
• is Mr. Lowe's sentence excessive and should it be modified?

Findings

• the court erred in affirming the conviction of Rape in the First Degree by Instrumentation due to insufficient evidence of penetration
• the judgment was modified from Rape by Instrumentation to Lewd Molestation
• the sentence was modified from 1,000 years to life imprisonment
• the judgment and sentence on Count I for First Degree Burglary was affirmed

F-2000-897

Sep. 21, 2001

Jack Albert Lowe

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, JUDGE: Appellant, Jack Albert Lowe, was found guilty at jury trial of First Degree Burglary (Count I) and Rape in the First Degree by Instrumentation (Count II), in Case No. CF-97-126, in the District Court of Adair County. The Honorable John C. Garrett, District Judge, sentenced Appellant in accordance with the jury’s verdicts to imprisonment for twenty (20) years on Count I and 1,000 years on Count II. Appellant has perfected his appeal to this Court, of his conviction and sentence on Count II. Appellant raises the following propositions of error in support of his appeal:

(I) THE TRIAL EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENT OF PENETRATION.

(II) MR. LOWE’S SENTENCE IS EXCESSIVE AND SHOULD BE MODIFIED.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts and briefs of the parties, we have determined that modification is necessary under the facts and the law. With regard to Proposition I, we find that looking at the evidence in the light most favorable to the prosecution, the State did not prove beyond a reasonable doubt even slight penetration which is required to support a conviction of rape by instrumentation. Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204; Kitchen U. State, 69 P.2d 411, 414, 61 Okl.Cr. 435, 443, (1937). However, the State did prove lewd molestation, a lesser included offense of rape by instrumentation, and Appellant’s jury was instructed accordingly. Shrum v. State, 1999 OK CR 41, 1 10, 991 P.2d 1032, 1037; Riley v. State, 1997 OK CR 51, I 15, 947 P.2d 530, 534. The judgment of the trial court is modified from Rape by Instrumentation to Lewd Molestation. In light of his two prior felony convictions and the facts of this case, Appellant’s sentence is modified to life imprisonment. 22 O.S. 1991, § 1066; McArthur v. State, 1993 OK CR 48, 862 P.2d 482; Stokes V. State, 86 Okl.Cr. 21, 190 P.2d 838, 839 (1948); 21 O.S. Supp. 1999, § 51.1(B). With regard to Proposition II, we find the modification of Appellant’s sentence from 1,000 years to life is within the parameters set forth by 21 .Supp. 1999, § 51.1(B) and does not shock the conscience of the court. Maxwell v. State, 1989 OK CR 22, 1 12, 775 P.2d 818, 820.

DECISION

The Judgment on Count II is MODIFIED to Lewd Molestation and the Sentence is MODIFIED to life imprisonment, to be served consecutively with the twenty (20) year sentence for First Degree Burglary. The Judgment and Sentence on Count I is AFFIRMED.

ATTORNEYS AT TRIAL

ANGELA BARKER JONES
PUBLIC DEFENDER
303 WEST KEETOOWAH
TAHLEQUAH, OK 74464

ATTORNEYS ON APPEAL

DANNY G. LOHMANN
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019

ATTORNEY FOR DEFENDANT

DARRELL DOWTY
ASSISTANT DISTRICT ATTORNEY
CHEROKEE COUNTY COURTHOUSE
TAHLEQUAH, OKLAHOMA 74464

W. A. DREW EDMONDSON
ATTORNEY GENERAL

WILLIAM R. HOLMES
ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR STATE
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73104-4894

ATTORNEYS FOR APPELLEE

OPINION BY: LILE, J.

LUMPKIN, P.J.: CONCURS
JOHNSON, V.P.J.: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS

Click Here To Download PDF

Footnotes:

1. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204; Kitchen v. State, 69 P.2d 411, 414, 61 Okl.Cr. 435, 443 (1937).
2. Shrum v. State, 1999 OK CR 41, ¶ 10, 991 P.2d 1032, 1037; Riley v. State, 1997 OK CR 51, ¶ 15, 947 P.2d 530, 534.
3. 22 O.S. 1991, § 1066; McArthur v. State, 1993 OK CR 48, 862 P.2d 482; Stokes v. State, 86 Okl.Cr. 21, 190 P.2d 838, 839 (1948); 21 O.S. Supp. 1999, § 51.1(B).
4. Maxwell v. State, 1989 OK CR 22, ¶ 12, 775 P.2d 818, 820.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Rape in the first degree
• Okla. Stat. tit. 22 § 1066 (1991) - Modification of sentence
• Okla. Stat. tit. 21 § 51.1(B) (1999 Supp.) - Sentences for certain felonies

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:

• Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-204
• Kitchen v. State, 69 P.2d 411, 61 Okl.Cr. 435, 443 (1937)
• Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, 1037
• Riley v. State, 1997 OK CR 51, 947 P.2d 530, 534
• McArthur v. State, 1993 OK CR 48, 862 P.2d 482
• Stokes v. State, 86 Okl.Cr. 21, 190 P.2d 838, 839 (1948)
• Maxwell v. State, 1989 OK CR 22, 775 P.2d 818, 820