Tubbs v. State

OPINION

CORNISH, JUDGE:

Larry Tubbs was convicted of Second Degree Rape in the District Court of Comanche County, Oklahoma, Case No. CRF-78-170, and sentenced to one (1) year imprisonment.

At the trial, the State presented evidence that the appellant, an eighteen (18) year old male, had sexual intercourse with the prose-cutrix, ML., a fourteen (14) year old female, at her home. The appellant was identified by both M.L. and her next door neighbor, C.B., who saw the appellant climb down from M.L.'s second story bedroom window.

It is first argued that the appellant was effectively denied his right to counsel as provided by the Sixth Amendment to the U.S. Constitution and Article II, § 7 of the Oklahoma Constitution because counsel appointed for the preliminary hearing was engaged in a trial at the time of the appointment that was not completed until one day before the preliminary hearing.

The record indicates that at the preliminary hearing, the Judge stated that he would allow a continuance for the purposes of defense if the appellant wished to put on any evidence. The defense counsel and the court then had an off the record discussion, after which the motion for continuance was overruled. The appellant raised no specific allegation of prejudicial harm after this opportunity for a continuance was offered and then denied. We, therefore, find that the appellant's right to effective assistance of counsel was not violated.

The appellant next contends that the rape statutes of this State, 21 O.S.1971, § 1111, et seq, are unconstitutional in that they violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Inasmuch as this contention was never raised in the district court, we hold that it is not properly before us. Baldwin v. State, 596 P.2d 1269 (Okl.Cr.1979). Further, the U.S. Supreme Court has recently held that California's "statutory rape" law, § 261.5 of the California Penal Code, which is essentially identical to the Oklahoma statute under which the appellant was charged, did not violate the Equal Protection Clause of the Fourteenth Amendment. Michael M. v. Superior Court of Sonoma County, - U.S. -, 101 S.Ct. 1200, 67 L.Ed.2d 487 (1981).

The last assignment of error alleges that evidence was not sufficient to prove the appellant's guilt beyond a reasonable doubt. After careful examination of the record, we find the testimony of the prose-cutrix was not inherently improbable or unworthy of credence and, together with the in-court identification made by her next door neighbor, presented sufficient evidence for the jury to find the appellant guilty.

For the above reasons, it is the opinion of this Court that the judgment and sentence should be, and hereby is, AFFIRMED.

BRETT, P. J., dissents. BUSSEY, J., concurs.