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EITER IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 06 2002 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA NANCY S. PARROTI CLERK ROBERT DALE MARLOW, ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. F-2001-793 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) SUMMARY OPINION LUMPKIN, PRESIDING JUDGE: Appellant, Robert Dale Marlow, was tried by jury in the District Court of Rogers County, Case Number CF-2000-381, and convicted of three counts (Counts I, III, and IV) of First Degree Rape, in violation of 21 O.S. 1991, § 1114, after former conviction of two or more felonies, Forcible Sodomy (Count II), in violation of 21 O.S.1991, § 888, after former conviction of two or more felonies, and First Degree Rape by Instrumentation (Count V), in violation of 21 O.S.1991, § 1114, after former conviction of two or more felonies. The jury set punishment at one hundred (100) years imprisonment on each of the five counts. The trial judge sentenced Appellant accordingly and ran all five sentences consecutively. Appellant now appeals his convictions and sentences. Appellant raises the following propositions of error in this appeal: I. Appellant was denied a fair trial when the trial court instructed on an uncharged crime and on the wrong offense; II. Admission of other crimes evidence prejudiced the jury, deprived Appellant of a fundamentally fair trial, and warrants reversal of the convictions or sentence modification; and 1 II. The sentences imposed against Appellant are excessive, in part because of prosecutorial misconduct, 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 find merit in propositions one and two, requiring modification of Count V and modification of Appellant’s sentences, as further addressed below. With respect to proposition one, we find plain error occurred when Appellant was convicted of First-Degree Rape by Instrumentation without the crucial element of “bodily harm” in the jury instruction. See 21 O.S.1991, § 1114(A). This reduced the crime, as instructed, to Second-Degree Rape by Instrumentation, rather than the crime of first-degree rape. Due to this instructional error and the absence of evidence of “bodily harm,” Count V must be therefore be modified to the lesser crime of second-degree rape by instrumentation. See McArthur v. State, 862 P.2d 482, 485 (Okl.Cr.1993) (Robbery with Dangerous Weapon modified to the lesser-included offense of Robbery in the First Degree.) With respect to the remainder of this proposition, we find Appellant had adequate notice of the charges against him, and he was not denied due process. Parker U. State, 917 P.2d 980, 986 kl.Cr.1996). With respect to propositions two and three, we find Appellant was prejudiced, insofar as sentencing is concerned, when the prosecutor was allowed to introduce “other crimes” evidence of an event occurring several months after the incidents alleged in the information. We find this evidence did not qualify under any stated exception to 12 O.S.1991, § 2404(B), was not res gestae 2 evidence, and any marginal relevance it may have had was substantially outweighed by the danger of unfair prejudice and confusion of the issues. 12 O.S.1991, § 2403. We find such evidence did not affect the guilt or innocence determination. The resulting sentences, however, were likely impacted by this evidence. The claims of prosecutorial misconduct do not require further action. DECISION Appellant’s conviction under Count V is hereby MODIFIED to a conviction for Second Degree Rape by Instrumentation, and his sentence is modified to twenty (20) years. The convictions on Counts I through IV are hereby AFFIRMED, but the sentences on Counts I through IV are hereby MODIFIED to forty years on each count. All sentences are ordered to run consecutively. AN APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY THE HONORABLE JACK K. MAYBERRY, ASSOCIATE DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL TIMOTHY WANTLAND STEPHEN B. HACKETT 104 S. MISSOURI, SUITE 102 1623 CROSS CENTER DRIVE CLAREMORE, OK 74017 NORMAN, OK 73019 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT PATRICK ABITBOL W.A. DREW EDMONDSON ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA ROGERS COUNTY COURTHOUSE DIANE SLAYTON 219 SOUTH MISSOURI STREET ASSISTANT ATTORNEY GENERAL CLAREMORE, OK 74017 112 STATE CAPITOL BUILDING COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE OPINION BY: LUMPKIN, P.J. JOHNSON, V.P.J.: CONCUR CHAPEL, J.: CONCUR STRUBHAR, J.: CONCUR LILE, J.: CONCUR RB 3

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