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McBrain v. State9/27/1988
AFFIRMED.
The opinion of the court was delivered by: BUSSEY, Judge.
The appellant, Kirk Warren McBrain, was convicted on February 14, 1986, in the District Court of Noble County, Case No. CRF-85-06 of the crimes of Kidnapping, First Degree Rape (two counts) and Sodomy. Appellant was sentenced to eight (8) years imprisonment on the Kidnapping charge, ten (10) years imprisonment on each of the Rape counts (each count to run concurrently) and ten (10) years imprisonment on the Sodomy charge. From this sentence he appeals.
On the evening of March 23, 1984, Kirk McBrain, Donald Honeycutt and Mark Loveall grabbed fourteen-year-old R.A. as she was walking along a Ponca City street and forced her into McBrain's car. While McBrain drove, Honeycutt grabbed and threw a screaming R.A. into the front seat. The victim was placed in the front seat between McBrain and Honeycutt until they arrived at Lake Ponca. Honeycutt then ordered R.A. to take off her clothes, he slapped her and got into the backseat where he raped her. Then Loveall raped her. Finally, McBrain who had been in the driver's seat forced the victim to orally sodomize him. The appellant stated he didn't want to rape her because he thought she had a venereal disease. While appellant was in the backseat with the victim, Honeycutt began driving the car.
Shortly thereafter a Ponca City police officer, noticing erratic driving, stopped the vehicle and asked the three men for identification. The officer observed that Loveall did not have his pants on and that McBrain was not wearing underwear. The officer arrested Honeycutt for driving under the influence . He then arrested the appellant and Loveall for public intoxication. R.A. remained in the car until the officer had arrested and detained the three men. The officer noted that R.A.'s face and hair were covered with axle grease. He described her demeanor as "controlled hysteria".
A detective from the Ponca City police department arrived and interviewed the victim at the scene. She recounted the rapes by Honeycutt and Loveall and said that the appellant had put his finger in her vagina. The victim was then taken to the hospital where personnel administered a rape test.
On March 25, 1984, the detective took a taped statement from appellant where he admitted orally sodomizing R.A. Thereafter, the detective interviewed R.A. and she acknowledged that appellant had made her orally sodomize him.
On March 26, 1984, an Information was filed in Kay County against the appellant and the two other co-defendants. Appellant's preliminary hearing was held on July 26, 1984, and he was bound over for trial.
During Thanksgiving week 1984, the victim disappeared and was found dead. Police arrested appellant and charged him with murder. On New Year's Eve 1984, appellant escaped from the Kay County jail and was not recaptured until nine months later.
Prior to his escape the district judge in Kay County granted a change of venue to Noble County. Prior to trial, on January 22, 1985, and February 10, 1986, the appellant presented motions for change of venue from Noble County. The court denied the motions and the jury trial began on February 10, 1986.
I
As his first assignment of error the appellant asserts that his conviction under 21 O.S. 1981 § 886 [21-886] is unconstitutional. We reject this assignment of error. We have repeatedly held that this statute is constitutional. Hicks v. State, 713 P.2d 18 (Okl.Cr. 1986); Glass v. State, 701 P.2d 765 (Okl.Cr. 1985); Golden v. State, 695 P.2d 6 (Okl.Cr. 1985); Clayton v. State, 695 P.2d 3 (Ok
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