Jason Van Dusen v The State Of Oklahoma

F-2003-1316

Filed: Oct. 13, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jason Van Dusen appealed his conviction for Rape by Instrumentation and First Degree Rape. Conviction and sentence modified to thirty (30) years for each count, served back-to-back. Judge Strubhar dissented.

Decision

Decision The Judgments are AFFIRMED and the Sentences are MODIFIED to thirty (30) years' imprisonment for each count to be served consecutively.

Issues

• was Appellant deprived of a fair sentencing because of all the information presented regarding pardon and parole and length of sentences?
• did prosecutorial misconduct deprive Appellant of a fair trial?

Findings

• The court erred by allowing the prosecutor to improperly inject the possibility of parole into the closing argument, requiring modification of sentences.
• No additional relief for any other possible impropriety in the prosecutor's argument is necessary due to the relief recommended.

F-2003-1316

Oct. 13, 2004

Jason Van Dusen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Jason Van Dusen was convicted of Count I: Rape by Instrumentation in violation of 21 O.S.2001, § 1111.1 and Count II: First Degree Rape in violation of 21 O.S.2001 § 1114, after former felony conviction in the District Court of Blaine County, Case No. CF-2002-55. In accordance with the jury’s recommendation, the Honorable Mark A. Moore sentenced Van Dusen to consecutive seventy-five (75) year sentences. Van Dusen appeals these Judgments and Sentences.

Van Dusen raises the following propositions of error:

I. Appellant was deprived of a fair sentencing because of all the information presented regarding pardon and parole and length of sentences.

II. Prosecutorial misconduct deprived Appellant of a fair trial.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we find that reversal is not required but that Van Dusen’s sentence must be modified. We find in Proposition I the prosecutor improperly injected the possibility of parole into second stage closing argument, requiring us to modify Van Dusen’s sentences to thirty (30) years’ imprisonment for each count.¹ We find in Proposition II that no additional relief for any other possible impropriety in the prosecutor’s argument is necessary due to the relief recommended in Proposition I.

Decision

The Judgments are AFFIRMED and the Sentences are MODIFIED to thirty (30) years’ imprisonment for each count to be served consecutively.

ATTORNEYS AT TRIAL

IRVEN R. BOX
BOX & BOX
P.O. BOX 926
NORMAN, OKLAHOMA 73070

ATTORNEY FOR APPELLANT

BARRY RETHERFORD
ASSISTANT DISTRICT ATTORNEY
BLAINE COUNTY COURTHOUSE
212 NORTH WIEGLE
WATONGA, OKLAHOMA 73772

ATTORNEY FOR THE STATE

ATTORNEYS ON APPEAL

LISBETH L. MCCARTY
2621 SOUTH WESTERN
OKLAHOMA CITY, OKLAHOMA 73109

ATTORNEY FOR THE DEFENDANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
DIANE L. SLAYTON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105

ATTORNEYS FOR APPELLEE

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

¹ Stringfellow v. State, 744 P.2d 1277, 1279 (Okl.Cr.1987)

The prosecutor improperly argued to the jury that Van Dusen could be paroled early based upon the amount of time he had served for his previous convictions. When confronted with the new law requiring that certain convicted criminals serve no less than 85% of their sentence before becoming parole eligible, the prosecutor improperly argued that the legislature could always change the law again.

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Footnotes:

1. 21 O.S.2001, § 1111.1
2. 21 O.S.2001, § 1114
3. Stringfellow v. State, 744 P.2d 1277, 1279 (Okl.Cr.1987)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111.1 (2001) - Rape by Instrumentation
• Okla. Stat. tit. 21 § 1114 (2001) - 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:

• Stringfellow v. State, 744 P.2d 1277, 1279 (Okl.Cr.1987)