Brian Tyrone Scott v The State of Oklahoma

F-2001-998

Filed: Aug. 15, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Brian Tyrone Scott appealed his conviction for multiple crimes. Conviction and sentence included 15 years for burglary, 20 years for sodomy, and various other terms for different offenses. Judge Lile dissented.

Decision

The Judgments and Sentences as to Counts I, II, V, and VI are AFFIRMED. Count IX is DISMISSED. The case is REMANDED to the District Court with instructions to VACATE the judgments and sentences on Counts III and IV, Case No. CF-2000-5044, and enter an Order nunc pro tunc reflecting that Scott was convicted of Count III, Assault and Battery with a Dangerous Weapon in violation of 21 O.S.1991, § 652; and Count IV, Unauthorized Use of a Motor Vehicle in violation of 21 O.S.1991, § 1720.

Issues

• Was there a violation of double punishment and double jeopardy in Scott's convictions for burglary, malicious injury to property, kidnapping, forcible oral sodomy, and assault with a dangerous weapon?
• Must Scott's conviction for kidnapping be reversed due to lack of evidence of specific intent to kidnap?
• Was Scott denied a fair trial when the trial court refused to allow defense counsel to present evidence regarding the victim's motive to falsely accuse him?
• Did the trial court abuse its discretion by running Scott's sentences consecutively, resulting in an excessive sentence?
• Should the Judgment and Sentence be modified to accurately state Scott's convictions?

Findings

• The court erred in dismissing Count IX, Kidnapping, and instructed to vacate this conviction.
• The evidence was sufficient for Scott's convictions for burglary, assault and battery with a dangerous weapon, forcible oral sodomy, and malicious injury to property.
• The trial court did not abuse its discretion in refusing to allow the introduction of irrelevant evidence regarding the victim's motive.
• The trial court did not abuse its discretion in running Scott's sentences consecutively.
• The Judgment and Sentence incorrectly stated the crimes for Counts III and IV, requiring correction.
• The Judgments and Sentences as to Counts I, II, V, and VI are affirmed.

F-2001-998

Aug. 15, 2002

Brian Tyrone Scott

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Brian Tyrone Scott was tried by jury and convicted of Count I, First Degree Burglary in violation of 21 O.S.1991, § 1431; Count II, Forcible Sodomy in violation of 21 O.S.1991, § 888; Count III, Assault and Battery with a Dangerous Weapon in violation of 21 O.S.1991, § 652; Count IV, Unauthorized Use of a Motor Vehicle in violation of 21 O.S.1991, § 1720; Count V, Assault and Battery Upon a Police Officer in violation of 21 O.S.1991, § 649(B); Count VI, Malicious Injury to Property in violation of 21 O.S.1991, § 1760; and Count IX, Kidnapping to Hold for Service in violation of 21 O.S.1991, § 741, in the District Court of Okmulgee County, Case No. CF-2000-5044.1 In accordance with the jury’s recommendation the Honorable Charles M. Humphrey sentenced Scott to fifteen (15) years imprisonment (Count I); twenty (20) years imprisonment (Count II); ten (10) years imprisonment (Count III); five (5) years imprisonment on each of Counts IV and V; one (1) year imprisonment (Count VI); and ten (10) years imprisonment (Count IX). Scott appeals from these convictions and sentences.

Scott raises five propositions of error in support of his appeal:

I. Scott’s conviction for burglary, malicious injury to property, kidnapping, forcible oral sodomy, and assault with a dangerous weapon violates the prohibitions against double punishment and double jeopardy;

II. Scott’s conviction for kidnapping must be reversed because there was no evidence of the specific intent to kidnap, and because the evidence showed at most an attempt to commit a crime;

III. Scott was denied a fair trial when the trial court refused to allow defense counsel to present evidence regarding the victim’s motive to falsely accuse him;

IV. The trial court’s decision to run Scott’s sentences consecutively resulted in an excessive sentence and should be modified; and

V. The Judgment and Sentence should be modified to accurately state Scott’s convictions.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that the law and evidence requires Count IX, Kidnapping, be reversed with instructions to dismiss. We also find an Order should be entered nunc pro tunc correcting the Judgment and Sentence to accurately reflect Scott’s remaining convictions and sentences.

We find in Proposition I that Scott’s convictions for burglary, assault and battery with a dangerous weapon, forcible oral sodomy, and malicious injury to property do not violate either double jeopardy or Oklahoma’s statutory prohibition against double punishment.2 We further find that Scott’s convictions for kidnapping to hold for service and forcible oral sodomy do not violate double jeopardy. However, we find that those two convictions do violate the § 11 prohibition against multiple punishment for a single act.

In the double jeopardy context, this Court held in Doyle v. State that kidnapping for secret confinement and rape are separate crimes, where the kidnapping was not done for the purpose of rape and the rape was separated from the kidnapping. Here, however, as the State argues in Proposition II, Scott was charged with kidnapping to hold to service, and the service intended was oral sex (forcible sodomy), which Scott immediately forced the victim to perform.5 If the crimes truly arise out of one act as they did in Hale, then Section 11 prohibits prosecution for more than one crime.6

Following these cases, the record supports the conclusion that the purpose of the kidnapping here was to hold the victim and make her perform oral sex, which occurred at once. After the sex, although the parade of crimes continued, the kidnapping ended. We hold that § 11 does not permit Scott’s convictions for both kidnapping and forcible oral sodomy. Consequently, Scott’s conviction of kidnapping in Count IX is DISMISSED, and Count II, forcible oral sodomy, is AFFIRMED. Our resolution of this issue makes Proposition II moot.

We find in Proposition III that the trial court did not abuse its discretion in refusing to allow the defendant to introduce irrelevant evidence.7 We find in Proposition IV that the trial court did not abuse its discretion in running Scott’s sentences consecutively.8 We find in Proposition V that the Judgment and Sentence incorrectly states the crimes for which Scott was convicted in Counts III and IV. We REMAND the case to the district court with instructions to vacate the judgments and sentences on Counts III and IV, Case No. CF- 2000-5044, and enter an Order nunc pro tunc reflecting that Scott was convicted of Count III, Assault and Battery with a Dangerous Weapon in violation of 21 O.S.1991, § 652; and Count IV, Unauthorized Use of a Motor Vehicle in violation of 21 O.S.1991, § 1720.

Decision

The Judgments and Sentences as to Counts I, II, V, and VI are AFFIRMED. Count IX is DISMISSED. The case is REMANDED to the District Court with instructions to VACATE the judgments and sentences on Counts III and IV, Case No. CF-2000-5044, and enter an Order nunc pro tunc reflecting that Scott was convicted of Count III, Assault and Battery with a Dangerous Weapon in violation of 21 O.S.1991, § 652; and Count IV, Unauthorized Use of a Motor Vehicle in violation of 21 O.S.1991, § 1720.

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

CECIL DRUMMOND
5200 S. YALE
TULSA, OKLAHOMA 74135
ATTORNEY FOR DEFENDANT

THOMAS PURCELL
1623 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEY FOR APPELLANT

BERYL R. DAVIS
O.R. BARRIS
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEYS
OKMULGEE COUNTY COURTHOUSE
OKMULGEE, OKLAHOMA 74447
ATTORNEYS FOR THE STATE

DIANE L. SLAYTON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA
ATTORNEYS FOR APPELLEES

OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR
JOHNSON, V.P.J.: CONCUR IN RESULTS
STRUBHAR, J.: CONCUR
LILE, J.: CONCUR

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Footnotes:

1. In accordance with the jury's recommendation the Honorable Charles M. Humphrey sentenced Scott to fifteen (15) years imprisonment (Count I); twenty (20) years imprisonment (Count II); ten (10) years imprisonment (Count III); five (5) years imprisonment on each of Counts IV and V; one (1) year imprisonment (Count VI); and ten (10) years imprisonment (Count IX).
2. Scott was acquitted of Count VIII, Rape by Instrumentation. Count VII was dismissed at preliminary hearing.
3. Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883-84; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (no double jeopardy violation under § 11).
4. Doyle v. State, 1989 OK CR 85, 785 P.2d 317, 324.
5. Perry v. State, 1993 OK CR 5, 853 P.2d 198, 201; OUJI-CR (2nd) 4-114.
6. Carter v. State, 1988 OK CR 250, 764 P.2d 206, 209, overruled on other grounds Edwards v. State, 1991 OK CR 71, 815 P.2d 670, 672.
7. Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126.
8. Dennis v. State, 1994 OK CR 34, 879 P.2d 1227, 1232, cert. denied, 528 U.S. 975, 120 S.Ct. 422, 145 L.Ed.2d 330 (1999).
9. Kamees v. State, 1991 OK CR 91, 815 P.2d 1204, 1208-09.
10. Walker v. State, 1989 OK CR 65, 780 P.2d 1181, 1183.
11. Scott was convicted of Count III, Assault and Battery with a Dangerous Weapon in violation of 21 O.S.1991, § 652; and Count IV, Unauthorized Use of a Motor Vehicle in violation of 21 O.S.1991, § 1720.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 - First Degree Burglary
• Okla. Stat. tit. 21 § 888 - Forcible Sodomy
• Okla. Stat. tit. 21 § 652 - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 1720 - Unauthorized Use of a Motor Vehicle
• Okla. Stat. tit. 21 § 649(B) - Assault and Battery Upon a Police Officer
• Okla. Stat. tit. 21 § 1760 - Malicious Injury to Property
• Okla. Stat. tit. 21 § 741 - Kidnapping to Hold for Service
• Okla. Stat. tit. 21 § 11 - Prohibition Against Multiple Punishment

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:

• Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883-84
• Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306
• Doyle v. State, 1989 OK CR 85, 785 P.2d 317, 324
• Perry v. State, 1993 OK CR 5, 853 P.2d 198, 201
• Carter v. State, 1988 OK CR 250, 764 P.2d 206, 209
• Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126
• Dennis v. State, 1994 OK CR 34, 879 P.2d 1227, 1232, cert. denied, 528 U.S. 975, 120 S.Ct. 422, 145 L.Ed.2d 330 (1999)
• Kamees v. State, 1991 OK CR 91, 815 P.2d 1204, 1208-09
• Walker v. State, 1989 OK CR 65, 780 P.2d 1181, 1183