Chester Creller, Sr. v The State Of Oklahoma

F 2001-962

Filed: Sep. 20, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Chester Creller, Sr. appealed his conviction for First Degree Rape, Forcible Oral Sodomy, and Incest. Conviction and sentence were upheld for Rape and Oral Sodomy, but the Incest conviction was reversed and dismissed. Judge Strubhar dissented.

Decision

The Judgment and Sentences imposed in Muskogee County District Court, Case No. CF 2000-588, for Counts 1 and 2 are hereby AFFIRMED; Count 3 is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• Was there a lack of jurisdiction for the trial court to try Appellant?
• Did the trial court err by allowing late amendment of the Information and cause unfair trial delays?
• Did the trial court fail to comply with statutory procedures regarding the alleged victim's testimony?
• Was double jeopardy violated by convicting Appellant of both Rape and Incest?
• Did the introduction of other crime evidence deprive Appellant of a fair trial and due process of law?
• Did the prosecutor's actions deny Appellant a fair trial?

Findings

• The trial court had jurisdiction to try Appellant on the second Amended Information.
• The trial court did not err in allowing late amendment of the Information.
• The trial court's failure to follow the statutory procedure regarding the alleged victim's testimony was harmless beyond a reasonable doubt.
• The Appellant's convictions for both First Degree Rape and Incest violate double jeopardy, leading to the reversal of the Incest conviction.

F 2001-962

Sep. 20, 2002

Chester Creller, Sr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, Chester Creller, Sr., was convicted by a jury in Muskogee County District Court, Case No. CF 2000-588, of First Degree Rape, in violation of 21 O.S.1991, § 1114(A)(1) (Count 1), Forcible Oral Sodomy, in violation of 21 O.S.Supp.2000, § 888 (Count 2), and Incest, in violation of 21 O.S.Supp. 1999, § 885 (Count 3). Jury trial was held on May 17th, 20th, and 21st, 2001, before the Honorable Thomas Alford, Associate District Judge. The jury set punishment at one hundred (100) years imprisonment on Count 1; twenty (20) years imprisonment on Count 2, and ten (10) years imprisonment on Count 3. Formal sentencing was held on August 6, 2001, and Judge Alford ordered Appellant to serve Counts 1 and 2 consecutively, but Count 3 to run concurrently with Count 1. From the Judgment and Sentences imposed, Appellant filed this appeal.

Appellant raises six propositions of error:
1. Appellant’s convictions must be reversed because the trial court had no jurisdiction to try Appellant.
2. The trial court erred by allowing late amendment of the Information in this case, and the trial was unfairly delayed.
3. The trial court erred by failing to comply with the statutory procedure regarding the alleged victim’s testimony.
4. Double jeopardy was violated when Appellant was convicted of both Rape and Incest.
5. Other crime evidence deprived Appellant of a fair trial and due process of law.
6. The prosecutor’s actions denied Appellant a fair trial.

After thorough review of the propositions raised, the entire record before us, including the original record, transcripts, exhibits, and briefs of the parties, we find Proposition 4 has merit. Appellant’s convictions for both First Degree Rape (Count 1) and Incest (Count 3) violate 21 S.Supp.1999, § 11 as they were based upon a single act. Therefore, we find Appellant’s conviction for Incest (Count 3) should be reversed and remanded with instructions to dismiss. The remaining propositions raised do not warrant relief. The trial court had jurisdiction to try Appellant on the second Amended Information which was filed in the district court and served upon Appellant. Further, the State properly amended the Information and the amendment did not materially prejudice the rights of the defendant. 22 O.S.2001, § 304; Strunk U. State, 1969 OK CR 30, I 3, 450 P.2d 216, 219 (information may be amended in matters of form or substance when it can be done without prejudice to the substantial rights of the accused). The trial court erred by not following the procedure set forth in 22 O.S.2001, § 753. However, in light of the overwhelming evidence presented at trial, we find the error harmless beyond a reasonable doubt. Chapman U. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Shipman v. State, 1991 OK CR 93, II 12, 816 P.2d 571, 575. We also find any error in the admission of other crimes evidence was harmless beyond a reasonable doubt. Lambert U. State, 1999 OK CR 17, I 48, 984 P.2d 221, 235-236, cert. denied, — U.S. — , 120 S.Ct. 816, 145 L.Ed.2d 687 (2000). We also find no plain error occurred as a result of the prosecutor’s closing argument. Defense counsel did not object to the complained of arguments and even though arguably were designed to elicit sympathy for the victim, we find the argument was not so egregious as to affect the jury’s verdict or to warrant relief.

DECISION

The Judgment and Sentences imposed in Muskogee County District Court, Case No. CF 2000-588, for Counts 1 and 2 are hereby AFFIRMED; Count 3 is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

APPEARANCES AT TRIAL

JAY COOK
ATTORNEY AT LAW
P.O. BOX 791
MUSKOGEE, OK 74402
ATTORNEY FOR THE DEFENDANT

APPEARANCES ON APPEAL

LISBETH MCCARTY
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

JEFF SHERIDAN
ASST. DISTRICT ATTORNEY
NANCY E. CONNALLY
ASSISTANT ATTORNEY GENERAL
MUSKOGEE COUNTY COURTHOUSE
MUSKOGEE, OK 74401

112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

OPINION BY: JOHNSON, V.P.J.
LUMPKIN, P.J: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS
LILE, J.: CONCURS

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Footnotes:

1. 21 O.S.1991, § 1114(A)(1)
2. 21 O.S.Supp.2000, § 888
3. 21 O.S.Supp. 1999, § 885
4. 21 S.Supp.1999, § 11
5. 22 O.S.2001, § 304
6. 22 O.S.2001, § 753
7. Chapman U. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
8. Shipman v. State, 1991 OK CR 93, II 12, 816 P.2d 571, 575
9. Lambert U. State, 1999 OK CR 17, I 48, 984 P.2d 221, 235-236, cert. denied, -- U.S. -- , 120 S.Ct. 816, 145 L.Ed.2d 687 (2000)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114(A)(1) (1991) - First Degree Rape
• Okla. Stat. tit. 21 § 888 (Supp. 2000) - Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 885 (Supp. 1999) - Incest
• Okla. Stat. tit. 21 § 11 (Supp. 1999) - Double Jeopardy
• Okla. Stat. tit. 22 § 304 (2001) - Amendment of Information
• Okla. Stat. tit. 22 § 753 (2001) - Testimony Procedure

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:

• Strunk v. State, 1969 OK CR 30, ¶ 3, 450 P.2d 216, 219
• Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
• Shipman v. State, 1991 OK CR 93, ¶ 12, 816 P.2d 571, 575
• Lambert v. State, 1999 OK CR 17, ¶ 48, 984 P.2d 221, 235-236, cert. denied, -- U.S. -- , 120 S.Ct. 816, 145 L.Ed.2d 687 (2000)