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McBrain v. State9/27/1988
cannot say that the sentences imposed shock the conscience of this Court.
BRETT, P.J., concurs.
PARKS, J., specially concurs.
PARKS, Judge, Specially Concurring:
I write separately to address appellant's third assignment of error. In this proposition, appellant argues that there was insufficient evidence to conclude that he aided in the commission of the kidnapping and rapes of R.A.
Focusing first on the evidence of appellant's actions during the kidnapping, it is clear that appellant's vehicle was used during the abduction and that appellant was driving. Appellant concedes that he knew R.A. was forced into the vehicle and did not go willingly. He also admits she was kicking and screaming and begged him to let her go. Obviously, he was a participant and not merely a bystander in the kidnapping of R.A. As such, there was sufficient evidence from which a jury could find him guilty of this offense.
Centering next on the evidence presented with regard to the two rape convictions, the State agrees that appellant did not actually commit an act of sexual intercourse with R.A. However, if appellant encouraged or advised by words, acts or gestures, either before or at the time of the offense, he will be treated as a principal to the crime. Van Woundenberg v. State, 720 P.2d 328, 333 (Okla. Crim. App. 1986). It is therefore important to consider appellant's actions both before and during the commission of the rapes. Again, appellant facilitated the commission of the rapes by driving his vehicle to an isolated area after the kidnapping of R.A. The evidence reveals that appellant was not told by Loveall or Honeycutt to go to an isolated area. He made this decision on his own. Further, the three men agreed to use false names in order to make identification more difficult. Appellant participated in this scheme by calling the other men "John" and "Chester" and by answering to the name of "Jake". When they arrived at the lake, testimony shows that all three men exited the vehicle and switched seats in order to facilitate each man while he "took his turn" with R.A. Although conflicting evidence was presented, there is testimony to support the fact that appellant threatened physical harm to R.A. if she did not cooperate.
After considering the sequence of events, I must agree that there was sufficient evidence to show that appellant's gestures, words, and actions facilitated in the rapes of R.A. See Rounds v. State, 679 P.2d 283, 286 (Okla. Crim. App. 1984); Smith v. State, 640 P.2d 988, 989 (Okla. Crim. App. 1982). Accordingly, I must concur.
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