State Of Oklahoma v R.Z.M.

JS 2015-1076

Filed: Mar. 24, 2016

Not for publication

Prevailing Party: R.Z.M.

Summary

R.Z.M. appealed his conviction for Forcible Oral Sodomy. The conviction and sentence were dismissed by the trial court. Judge Patrick Pickerill agreed that the law did not support charging R.Z.M. with this crime because the victim was too intoxicated to consent. The State of Oklahoma disagreed and appealed this decision, but the Court of Criminal Appeals upheld the dismissal, stating that the law did not allow for prosecution in this case. Judge Smith and Judge Lumpkin agreed with the decision, and no judges dissented.

Decision

The order of the District Court of Tulsa County granting the motion to dismiss is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there error in the trial court's ruling that Forcible Sodomy cannot occur when a victim is completely unconscious due to intoxication at the time of the sexual act?
• Did the Legislature's inclusion of intoxication as a circumstance for the crime of Rape extend to the requirements for Forcible Sodomy?
• Was the dismissal of Count 2 justified based on the interpretation of the statute regarding Forcible Sodomy?

Findings

• The court did not err in ruling that Forcible Sodomy cannot occur where a victim is completely unconscious at the time of the sexual act.
• The evidence was not sufficient to support the prosecution for Forcible Sodomy under the circumstances presented.
• The order of the District Court granting the motion to dismiss is affirmed.

JS 2015-1076

Mar. 24, 2016

State Of Oklahoma

Appellant

v

R.Z.M.

Appellee

SUMMARY OPINION

Appellee, R.Z.M., born November 21, 1997, was charged April 16, 2015, as a Youthful Offender in Tulsa County District Court Case No. YO-2015-24 with Count 1 – Rape-First Degree, or in the alternative, Rape-Second Degree, 21 O.S.2011, § 1111(A)(5), and Count 2 – Forcible Oral Sodomy, 21 O.S.2011, § 888. Count 1 was dismissed on July 1, 2015, and Appellee was bound over for trial on Count 2. Appellee’s pre-trial motion to dismiss was granted on November 30, 2015, by the Honorable Patrick Pickerill, Associate District Judge. The State appeals pursuant to 22 O.S.2011, § 1053(1). This appeal was assigned to the Accelerated Docket of this Court. Oral argument was held March 17, 2016. At the conclusion of oral argument, the parties were advised of the decision of this Court. The State’s sole proposition of error is that the trial court erred in ruling that Forcible Sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation. Finding no error, the State’s appeal to this Court is denied. The Legislature’s inclusion of an intoxication circumstance for the crime of Rape, 22 O.S. § 1111(A)(4), is not found in the five very specific requirements for commission of the crime of Forcible Sodomy, 22 O.S. § 888(B). As set forth in Leftwich v. State, 2015 OK CR 5, ¶15, 350 P.3d 149, 155, we will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.

DECISION

The order of the District Court of Tulsa County granting the motion to dismiss is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE PATRICK PICKERILL, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL
BENJAMIN FU
KENNETH ELMORE
ASSISTANT DISTRICT ATTORNEY
TULSA COUNTY DISTRICT ATTORNEY’S OFFICE
500 S. DENVER AVE.
TULSA, OKLAHOMA 74103
COUNSEL FOR THE STATE

APPEARANCES ON APPEAL
SHANNON M. MCMURRAY
ATTORNEY AT LAW
1811 S. BALTIMORE AVE.
TULSA, OKLAHOMA 74119
COUNSEL FOR APPELLEE

OPINION BY: HUDSON, J.
SMITH, P.J.: CONCUR
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

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Footnotes:

1. 21 O.S.2011, § 1111(A)(5)
2. 21 O.S.2011, § 888
3. 22 O.S.2011, § 1053(1)
4. 22 O.S. § 1111(A)(4)
5. 22 O.S. § 888(B)
6. Leftwich v. State, 2015 OK CR 5, ¶ 15, 350 P.3d 149, 155
7. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111.8 (2011) - Rape
• Okla. Stat. tit. 21 § 888 (2011) - Forcible Sodomy
• Okla. Stat. tit. 22 § 1053 (2011) - Appeals

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:

• Leftwich v. State, 2015 OK CR 5, ¶15, 350 P.3d 149, 155