Abbott v. State , 719 P.2d 1289 ( 1986 )

OPINION

BUSSEY, Judge:

The appellant, James Charles Abbott, was convicted of the crime of Assault with Intent to Commit Oral Sodomy After Former Conviction of Two or More Felonies in Case No. CRF-82-75 in the District Court of Seminole County and was sentenced to a term of twenty (20) years imprisonment, and he appeals.

On May 17, 1982, D.H. was working at her father’s bar in Maud, Oklahoma, while he was ill. As she sat reading a book in the bar, the appellant entered the bar and asked her to play a game of pool. After they began to play pool, the appellant grabbed her and asked to fondle her breasts. D.H. struggled, but appellant pushed her back on the pool table, ripped her shirt, and told her that he was going to rape her. As she continued to struggle, the appellant hit her several times, threw her to the floor, exposed himself, and told her that she was going to have to “suck him.” The victim then kicked him in the groin, escaped to the restroom and locked the door. After a short time, she heard someone enter the bar, and she opened the restroom door and asked the customer to call for help. Although both phones had been damaged, the customer repaired one and contacted the police and the victim’s father.

The deputy sheriff who responded to the call testified that when he arrived the victim was crying and trembling, that her shirt was torn open, and that she had a facial cut and bruises.

At trial, the appellant presented testimony of two friends who testified to the effect that a sexual relationship existed between the appellant and the victim. The appellant testified that he went to the bar on May 17 to terminate the relationship and that the victim fabricated the story in retaliation. He stated that the victim’s injuries were either self-inflicted, or the result of the fact that he shoved her when she attempted to call his wife. The appellant admitted that he had been previously convicted of five felonies.

The appellant first contends that improper prosecutorial comments during closing argument deprived him of a fair trial. We note that none of the allegedly improper comments drew either an objection or a request that the jury be admonished to disregard the remarks. Consequently, appellate review is waived except for fundamental error. Newbury v. State, 695 P.2d 531 (Okl.Cr.1985). We find that none of the remarks are so fundamentally prejudicial that the court could not, by instructions to the jury, correct the error. Therefore, the error, if any, was waived.

Moreover, in light of the strong evidence of appellant’s guilt, and the fact that the jury imposed the minimum sentence allowed by law, we are of the opinion that appellant has wholly failed to show that any prejudice resulted from the allegedly improper comments. Wofford v. State, 581 P.2d 905 (Okl.Cr.1978). This assignment of error is without merit.

The appellant next contends that the State improperly used other crimes evidence related to claims that the appellant also intended to rape the victim. We disagree.

Initially, we note that the alleged improper testimony was not objected to at trial and was therefore waived. Newbury at 536. Moreover, the testimony of the victim that during the attack the appellant told her he was going to rape her is part of the entire transaction and is clearly admissible. Bruner v. State, 612 P.2d 1375 (Okl.Cr.1980).

The appellant additionally argues that the trial court erred in failing to give a cautionary instruction to the jury regarding the limited purpose of evidence of other crimes. However, as appellant failed to request a cautionary instruction, this assignment of error was also waived. Scott v. State, 663 P.2d 17 (Okl.Cr.1983). This assignment of error is without merit.

Finding no error warranting modification or reversal, the judgment and sentence is AFFIRMED.

BRETT, J., concurs. PARKS, P.J., dissents.