Johnson v. State

OPINION

BUSSEY, Judge:

The appellant, Robert Earl Johnson, was tried and convicted in the District Court of Oklahoma County for the crime of Escape from a Penal Institution in Case No. CRF-83-5073 and was sentenced to two (2) years imprisonment, and he appeals.

Briefly stated the facts are that on October 6, 1983, appellant ran out of an office at the Department of Corrections Community Center in Oklahoma City and got into a car which sped away. Appellant was apprehended in Tulsa on February 15, 1984.

In his sole assignment of error, appellant contends that the trial court committed fundamental error by failing to give an instruction on duress. We first observe that appellant failed to object to the instructions and did not submit requested instructions; consequently, this assignment was waived. Maghe v. State, 620 P.2d 433 (Okl.Cr.1980). Moreover, this Court has held that a defendant is not entitled to an instruction on duress or involuntary escape unless he is in imminent and immediate danger at the time of the escape and returns to custody at the first opportunity. Nichols v. State, 564 P.2d 667, 669 (Okl.Cr.1977). In the instant case, appellant made no attempt to return himself to lawful custody, but was apprehended four (4) months after his escape in another city. Thus, we find no error.

The judgment and sentence is AFFIRMED.

BRETT, P.J., and PARKS, J., concur.