Atterberry v. State

BUSSEY, Judge,

dissenting:

I must respectfully dissent to the reversal of this case. The victim testified at trial that appellant put a rope around her neck and hung her in a closet for an extended period of time; that when he returned to the closet he slapped her in the face several times; that he led her around the house with the rope around her neck bumping her into the walls; that he took her into the bathroom forced her to undress and held her head under water in the bathtub several times; and that he ordered her to push his knife into her chest and then took the knife and made a cross on her chest.

While it is true that instruction number seventeen (17) erroneously includes “threatened harm” and “mental injury” as violations of 21 O.S.1981 § 843, the evidence that appellant wilfully inflicted physical injury upon the victim is so strong that there is no reasonable possibility that the jury would have returned a different verdict even if they were properly instructed. See, Fogle v. State, 700 P.2d 208, 212 (Okl.Cr.1985).

Futhermore, I do not believe that the alleged improper comments determined the verdict. I would affirm the judgment and sentence.