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McBrain v. State9/27/1988
concluded from the evidence that the appellant acted as a principal. Where there is evidence to support the verdict, we will not disturb the jury's findings since it is the exclusive province of the jury to weigh the evidence and determine the facts. Smith v. State, 640 P.2d 988 (Okl.Cr. 1982), Morris v. State, 607 P.2d 1187 (Okl.Cr. 1980).
The evidence at trial revealed that appellant was the owner of the car and driving it when he, Honeycutt and Loveall abducted R.A. Prior to the abduction, the men discussed finding some girls. Honeycutt had talked to some girls who escaped from him and shortly thereafter he grabbed R.A. She was then forced to sit between appellant and Honeycutt. While R.A. screamed and asked to stop the car, appellant drove to the location where the victim was raped and forced to commit oral sodomy. Appellant watched while Honeycutt and Loveall raped R.A. When it was the appellant's turn, he made the victim orally sodomize him. He did not have intercourse with her since he believed she had a venereal disease. During the course of this sordid occurrence, the three men used false names in addressing one another.
Aiding and abetting requires acts, words or gestures encouraging the commission of the offense. Van Woundenberg v. State, 720 P.2d 328 (Okl.Cr. 1986) cert. denied 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395; Rounds v. State, 679 P.2d 283 (Okl.Cr. 1984); Hindman v. State, 647 P.2d 456 (Okl.Cr. 1982). The appellant's status as an aider and abettor in the commission of the acts of rape were substantiated by his driving the car, observing the acts of rape without trying to impede their commission, and finally in requiring R.A. to orally sodomize him. In a similar fact situation this Court said that:
All the evidence in the case and the circumstances therewith strongly indicate that the defendant knew what was going to take place when he assisted in getting the girls away from town and out to the Sledge farmhouse without their consent, and after they had begged him to take them home.
Elliott v. State, 45 Okl.Cr. 5, 281 P. 305, 310 (1929). Appellant asserts that there is no indication that he participated in the acts of rape. We find otherwise and further note that only slight participation is needed to change a person's status from mere spectator into an aider and abettor. Smith v. State, 640 P.2d 988 (Okl.Cr. 1982); Sartin v. State, 637 P.2d 897 (Okl.Cr. 1981). For the above reasons we find this assignment of error without merit.
IV
In his next assignment of error the appellant asserts that the evidence is insufficient to prove him guilty beyond a reasonable doubt of kidnapping, two counts of rape and of sodomy. There was ample evidence presented at trial to convict the appellant on all the crimes.
This assertion has been addressed in the previous assignment of error and furthermore, we would observe that the appellant held the keys to the car and could have prevented the occurrence of the crimes at any time.
V
In his last assignment of error, the appellant contends that since his participation was minimal the sentences imposed are unconscionable. This Court has consistently stated that we do not have the power to modify a sentence unless we can say that the sentence is so excessive as to shock the conscience of the Court. Clark v. State, 678 P.2d 1191 (Okl.Cr. 1984); Edwards v. State, 645 P.2d 528 (Okl.Cr. 1982); Dilworth v. State, 611 P.2d 256 (Okl.Cr. 1980). The evidence of the appellant's participation in the two acts of rape and kidnapping was more than minimal. The sentences were within the statutory limits and considering the evidence of appellant's guilt we
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