STATE v. BROWN

STATE v. BROWN
1981 OK CR 32
625 P.2d 1273
Case Number: O-80-825
Decided: 03/19/1981
Oklahoma Court of Criminal Appeals

An appeal from the District Court, Okmulgee County; Edgar R. Boatman, Judge.

The State of Oklahoma, appellant, appeals from an order of the District Court of Okmulgee County, Oklahoma, Case No. CRF-80-136, sustaining the appellee's demurrer. We hold that the District Court erred in sustaining the demurrer.

James D. Jordan, Dist. Atty., Okmulgee, for appellant.

No appearance for appellee.

MEMORANDUM OPINION

CORNISH, Judge:

[625 P.2d 1274]

¶1 The State has appealed from an order of the District Court of Okmulgee County sustaining a demurrer to the State's case in Okmulgee County Case No. CRF-80-136, the State of Oklahoma v. Lewis Cornell Brown. Mr. Brown was being tried for rape in the first degree, and the trial court ruled that the State had failed to present any evidence tending to prove that the victim was not the wife of the defendant.

¶2 The law is that one may be convicted on circumstantial evidence as well as on direct evidence. Patterson v. State, 78 Okl.Cr. 244, 147 P.2d 179 (1944), Carter v. State, 595 P.2d 1352 (Okl.Cr. 1979). In the present case, the State presented circumstantial evidence which tended to support the conclusion that the defendant and the victim were not married. The defendant's sister testified that the defendant lived with her and her children. She said that she and the victim had been friends for several years, and that once in a while one of them would spend a night or two with the other. Both the defendant's sister and the victim testified that the rape occurred while the victim and her children were visiting, not the defendant, but the defendant's sister. During cross examination of the victim the following exchange occurred:

"Q: You knew him pretty well, didn't you.

A: Yeah, acquaintances, yes. He was Wilma's brother."

And the District Attorney brought out this information:

"Q: All right. Have you ever dated Brown?

A: Never."

¶3 Although the victim was never asked expressly whether she was married to the defendant, the testimony which was presented easily supports the conclusion that she was not. It was error for the trial court to sustain the demurrer. Because jeopardy has attached, there can be no new trial.

BRETT, P.J., and BUSSEY, J., concur.