Todd Wayne McFarland v The State Of Oklahoma

F-2006-17

Filed: Nov. 14, 2007

Not for Publication

Prevailing Party: The State Of Oklahoma

Summary

Todd Wayne McFarland appealed his conviction for sexual battery and second-degree rape by instrumentation. His convictions resulted in a sentence of three years imprisonment and a $10,000 fine for sexual battery, and five years imprisonment with a $10,000 fine for second-degree rape. The court decided that his convictions did not violate double jeopardy rules and found that, while the prosecutor had made some improper comments, they did not affect the fairness of the trial. The court modified the sentence for second-degree rape by removing the $10,000 fine but kept his other sentences as they were. Judge Lumpkin, Vice President Johnson, and others agreed with the result.

Decision

The Judgments of the District Court are AFFIRMED. The Sentence for Count I is AFFIRMED. The Sentence for Count II is MODIFIED to VACATE the $10,000 fine. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there double punishment or double jeopardy in violation of constitutional rights due to the convictions for sexual battery and second degree rape by instrumentation?
• Did improper statements made by the prosecutor during closing argument deprive McFarland of a fair trial?
• Was the fine assessed for Count II based on an erroneous jury instruction, warranting its vacation or modification?
• Is McFarland's sentence excessive under the facts of the case, requiring modification?

Findings

• neither the statutory prohibition against multiple punishment nor double jeopardy are violated by McFarland's convictions
• the prosecutor occasionally overstepped the bounds of proper argument to McFarland's prejudice
• the jury was incorrectly instructed on the imposition of a fine on Count II
• McFarland's sentence is not excessive
• the Sentence for Count II is MODIFIED to VACATE the $10,000 fine
• The Judgments of the District Court are AFFIRMED
• The Sentence for Count I is AFFIRMED

F-2006-17

Nov. 14, 2007

Todd Wayne McFarland

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE CHAPEL, JUDGE:

Todd Wayne McFarland was tried by jury and convicted of Count I, Sexual Battery in violation of 21 O.S.2001, § 1123, and Count II, Second Degree Rape by Instrumentation in violation of 21 O.S.2001, §§ 1111.1, 1114, in the District Court of Creek County, Case No. CF-2001-552. In accordance with the jury’s recommendation the Honorable Douglas W. Golden sentenced McFarland to three (3) years imprisonment and a $10,000 fine (Count I); and five (5) years imprisonment and a $10,000 fine (Count II). McFarland appeals from these convictions and sentences.

McFarland raises four propositions of error in support of his appeal:

I. The crimes of sexual battery and second degree rape by instrumentation in Counts I and II were a series of crimes based upon a single criminal transaction constituting double punishment and double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article 2, Section 21 of the Oklahoma Constitution and Okla. Stat. Tit. 21, § 11(A);

II. Improper statements made by the prosecutor during closing argument deprived McFarland of a fair trial;

III. The fine assessed McFarland for Count II was based upon an erroneous jury instruction and thus should be vacated or modified; and

IV. Under the facts of the case McFarland’s sentence is excessive and should be modified.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that McFarland’s sentence for Count II must be modified. No further relief is required. We find in Proposition I that neither the statutory prohibition against multiple punishment nor double jeopardy are violated by McFarland’s convictions. We find in Proposition II that the prosecutor occasionally overstepped the bounds of proper argument to McFarland’s prejudice. We find in Proposition IV that McFarland’s sentence is not excessive. We find in Proposition III that the jury was incorrectly instructed on the imposition of a fine on Count II. That fine was imposed pursuant to a statute which provides that a fine may be imposed, but does not require it. The instruction second degree rape by instrumentation included a range of possible imprisonment and a fine of up to $10,000. This instruction required jurors to impose a fine, although there is no such statutory requirement. The State argues that the instructions were taken from the uniform jury instructions and are presumptively correct. However, this is not the case. The trial court correctly used the appropriate instruction format for punishment, but did not correctly fill in the blanks regarding the statutory fine available. The use of the phrase and a fine of does not, as the State suggests, imply that jurors may not recommend a fine at all. Although McFarland did not object to the instructions, this error in instruction constitutes a substantial violation of a constitutional or statutory right, and requires relief. In combination with the improper argument discussed in Proposition II, the fine imposed on Count II must be vacated.

Decision

The Judgments of the District Court are AFFIRMED. The Sentence for Count I is AFFIRMED. The Sentence for Count II is MODIFIED to VACATE the $10,000 fine. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

MERLE C. GILE
120 N. ROBINSON, 29TH FLOOR
FIRST NATIONAL CENTER
OKLAHOMA CITY, OKLAHOMA 73102

ATTORNEY FOR PETITIONER

FRED STAGGS
2200 CLASSEN BLVD.
SUITE 2000
OKLAHOMA CITY, OKLAHOMA 73106

ATTORNEYS FOR DEFENDANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

HEATH ROBINSON
ASSISTANT ATTORNEY GENERAL

CAROL ISKI
ASSISTANT DISTRICT ATTORNEY

ATTORNEYS FOR RESPONDENT
CREEK COUNTY COURTHOUSE
22 E. DEWEY 3RD FLOOR
SAPULPA, OKLAHOMA 74066

OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR
C. JOHNSON, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR IN RESULTS
LEWIS, J.: CONCUR IN RESULTS

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Footnotes:

1. Okla. Stat. tit. 21 § 11(A)
2. 21 O.S.2001, § 11
3. Jones v. State, 2006 OK CR 5, 128 P.3d 521, 543
4. Doyle v. State, 1989 OK CR 85, 785 P.2d 317, 323
5. Eberhart v. State, 1986 OK CR 160, 727 P.2d 1374, 1379
6. Clark v. State, 1984 OK CR 6, 678 P.2d 1191, 1191-92
7. Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883
8. Brewer v. State, 2006 OK CR 16, 133 P.3d 892, 895
9. Spears v. State, 1995 OK CR 36, 900 P.2d 431, 445
10. Jones v. State, 1988 OK CR 267, 764 P.2d 914, 917
11. Garrison v. State, 2004 OK CR 35, 103 P.3d 590, 610-11
12. Wilson v. State, 1998 OK CR 73, 983 P.2d 448, 470
13. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149
14. 21 O.S.2001, § 64(B)
15. 20 O.S.2001, § 3001.1

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2001) - Sexual Battery
• Okla. Stat. tit. 21 § 1111.1 (2001) - Second Degree Rape by Instrumentation
• Okla. Stat. tit. 21 § 1114 (2001) - Second Degree Rape
• Okla. Stat. tit. 21 § 11 (2001) - Prohibition Against Multiple Punishment
• Okla. Stat. tit. 21 § 64(B) (2001) - Fine Imposition
• Okla. Stat. tit. 20 § 3001.1 (2001) - Remedial Instruction

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:

• Jones v. State, 2006 OK CR 5, 128 P.3d 521, 543
• Doyle v. State, 1989 OK CR 85, 785 P.2d 317, 323
• Eberhart v. State, 1986 OK CR 160, 727 P.2d 1374, 1379
• Clark v. State, 1984 OK CR 6, 678 P.2d 1191, 1191-92
• Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883
• Brewer v. State, 2006 OK CR 16, 133 P.3d 892, 895
• Spears v. State, 1995 OK CR 36, 900 P.2d 431, 445
• Jones v. State, 1988 OK CR 267, 764 P.2d 914, 917
• Garrison v. State, 2004 OK CR 35, 103 P.3d 590, 610-11
• Wilson v. State, 1998 OK CR 73, 983 P.2d 448, 470
• Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149