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McBrain v. State9/27/1988
l.Cr. 1984). See also Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).
The appellant cites Post v. State, 715 P.2d 1105 (Okl.Cr. 1986) to support his contention. However, Post, supra, declared unconstitutional the application of 21 O.S. 1981 § 886 [21-886] to consensual acts between adults.
We stress that our decision today in no way affects the validity of 21 O.S. 1981 § 886 [21-886] in its application to bestiality, forced sexual activity, sexual activity of the underaged, or public or commercial sexual acts.
Post, supra, at 1109.
The appellant additionally asserts in his first contention that he should have been allowed an instruction on consent. The evidence does not support such an instruction nor is one necessarily required as 21 O.S. 1981 § 886 [21-886] covers acts of consensual sodomy committed with a child. See Post, supra. We therefore find this assignment without merit.
II
In his second assignment the appellant contends that the trial court erred by denying his motion for a change of venue from Noble County. A change of venue had already been granted from Kay County to Noble County. We find that the trial court did not abuse its discretion in denying the second change of venue. The trial court acknowledged the extensive publicity given the case. However, the court felt that a change of venue was not warranted as an impartial panel could be selected in Noble County.
We have held consistently that a granting of a change of venue is within the discretion of the trial court and that we will not disturb the denial of a motion for change of venue unless there has been an abuse. Plunkett v. State, 719 P.2d 834 (Okl.Cr. 1986); Wooldridge v. State, 659 P.2d 943 (Okl.Cr. 1983); Frye v. State, 606 P.2d 599 (Okl.Cr. 1980). Whether the defendant was provided with a fair and impartial jury is the determinative inquiry into whether the trial court abused its discretion in denying the motion for change of venue. Plunkett, supra; Wooldridge, supra; Andrews v. State, 555 P.2d 1079 (Okl.Cr. 1976); Brinlee v. State, 543 P.2d 744 (Okl.Cr. 1975).
In the instant case the trial court conducted an extensive individual voir dire of forty-four prospective jurors. The trial court, defense counsel and prosecutor probed into the effect of the media on the veniremen. Of the forty-four prospects, twelve were excused for cause. The remaining prospective jurors were again questioned on the media coverage surrounding the victim's death. Each juror stated that he or she could disregard any opinions formed from the media and render a verdict based on the evidence presented at trial. This extensive voir dire protected the appellant from the taint of community prejudice. Stafford v. State, 731 P.2d 1372 (Okl.Cr. 1987).
There was no indication of inflamed community sentiment or juror impropriety during the course of the trial to counter the jurors' impartiality. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). There is nothing in the record to show that the appellant did not receive a fair and impartial trial. Brinlee, supra.
III
In his third assignment of error the appellant contends that he was improperly convicted of Rape in the First Degree. We find that there was sufficient evidence to conclude that the appellant aided and abetted in the commission of the crimes.
The appellant argues that he was present when the rapes occurred yet did not actively participate, thus he should not have been convicted of First Degree Rape. However, the jury reasonably
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