¶1 The State of Oklahoma appeals the district court's order quashing the magistrate's Bindover Order of Count 2-Attempted Rape in the First Degree of A.M. The State filed a six count felony Information against Krigel, a Tulsa County attorney, in the District Court of Tulsa County, Case No. CF-2023-1973.¹ The charges included three counts of Rape in the First Degree (Counts 1, 3, 4), in violation of 21 O.S.2011, §§ 1111, 1114, 1115, one count of Attempted Rape in the First Degree (Count 2), in violation of 21 O.S.2011, §§ 42, 1111, 1114, 1115, one count of Second Degree Rape by Instrumentation (Count 5), in violation of 21 O.S.2011, § 1111.1, and one count of First Degree Rape by Instrumentation (Count 6), in violation of 21 O.S.Supp.2015, § 1111.1. Krigel waived his right to a preliminary hearing on Counts 3, 4, and 5. The magistrate conducted a preliminary hearing on Counts 1, 2, and 6, and ultimately overruled Krigel's demurrer and bound him over for trial on all six counts.²

¶2 Because the judges in Tulsa County recused in this matter, the Chief Justice of the Oklahoma Supreme Court specially assigned the Honorable Mark Campbell, Bryan County District Judge, to hear and decide all matters relating to the charges against Krigel in this case.³ Krigel's counsel filed a Motion to Quash Magistrate's Bindover the day Judge Campbell formally arraigned Krigel. Krigel's motion failed to identify any inadequacy but noted he had yet to receive the preliminary hearing transcript. Krigel later filed a brief in support of his motion to quash and Judge Campbell conducted a motion hearing three days later. Because the State had not had the opportunity to respond in writing, Judge Campbell granted the State's request for time to oppose Krigel's motion to quash, requesting the State specifically address the sufficiency of the evidence for Count 2. The State filed its written response, and Judge Campbell held a hearing on Krigel's motion. After hearing the parties' arguments, he took the matter under advisement. Judge Campbell entered a written order two days later, finding Krigel's motion to quash meritless with respect to Counts 1, 3, 4, 5, and 6. He granted the motion to quash Count 2, stating:

The evidence as to Count 2, even when viewed in the light most favorable to the State, is insufficient to support the charge of Attempted Rape in the First Degree. The State relied on an unpublished opinion from the Oklahoma Court of Criminal Appeals, regarding a case from the District Court of Tulsa County, CF-04-705, State vs. Adrian Dwane Crawford, to support their position that there was sufficient evidence for a bindover as to Count 2 in the instant case. However, the undersigned finds the published opinion of Rosteck v. State, 749 P.2d 556, to be more persuasive and relevant to the facts of the instant case.

¶3 The State challenges this ruling, arguing: (1) that the judge failed to consider relevant evidence and to apply the correct standard of review; and (2) that there was sufficient evidence to support the bindover on Count 2. We review the district court's ruling for an abuse of discretion. State v. Roberson, 2021 OK CR 16, ¶ 4, 492 P.3d 620, 622; State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1193-94. This Court will find an abuse of discretion "only where the ruling is unreasonable or arbitrary and made without proper consideration of the facts and law pertaining to the matter at issue." Posey v. State, 2024 OK CR 10, ¶ 19, 548 P.3d 1245, 1259; Delso, 2013 OK CR 5, ¶ 5, 298 P.3d at 1194.

ANALYSIS

¶4 The two propositions raised by the State involve the sufficiency of the preliminary hearing evidence supporting Count 2. The State contends that not only did Judge Campbell misapply the applicable standard of review and refuse to consider relevant evidence, but also that he erroneously found the preliminary hearing evidence insufficient based on Rosteck v. State, 1988 OK CR 11, 749 P.2d 556. We agree.

¶5 The magistrate, after viewing the preliminary hearing evidence in the light most favorable to the State, found probable cause to believe the crime of attempted first degree rape had been committed against A.M. and that Krigel probably committed the crime. See State v. Bradley, 2018 OK CR 34, ¶ 12, 434 P.3d 5, 9 (setting forth purpose of preliminary hearing). The preliminary hearing evidence revealed that A.M. and Krigel were acquaintances in law school. A year or more after graduation, she ran in to him at the law school while attending a function in the fall of 2011. They exchanged pleasantries and Krigel later messaged her on social media and asked her on a date. Their first date was at a local bowling alley. Krigel repeatedly offered to buy A.M. an alcoholic drink and ultimately purchased her one despite her refusals. A.M. recalled Krigel telling her of an upcoming trip to Israel he had planned since she worked for a foundation which funded trips for young Jewish people to visit there. Of concern to her was a comment in which he implied he was looking forward to the trip because there would be plenty of women and opportunities to add "notches to his belt."

¶6 They went on a second, and final, date a week or so later. Because of his comment about adding notches to his belt, A.M. felt compelled before their second date to make clear she had no intention of anything sexual happening on their upcoming date, which she relayed via text message. Krigel brushed her off and accused her of overreacting. They met at the park across the street from Krigel's home and ultimately went to his house to watch television. In the living room, they sat side-by-side on the couch. Krigel asked if he could hold A.M.'s hand and she consented. He turned on the show Family Guy and she called it "stupid" and asked to watch something else. She said they were joking about it and suddenly he "flipped over" and straddled her. He used his forearm across her chest and shoulders to pin her to the couch. He then forcefully kissed her and groped her breasts and inner thighs over her clothes with his other hand. A.M. was terrified, shocked, and afraid he was going to rape her because of the sudden escalation. A.M. said her body went into "flight mode" and she somehow was able to twist and get out of his grip. She grabbed her belongings and sprinted out the front door to her car. She called a couple of friends and told them what had happened but did not contact the police until years later when she saw a news story about another woman accusing Krigel of rape.

¶7 Judge Campbell found the preliminary hearing evidence insufficient to prove attempted first degree rape based on our decision in Rosteck, 1988 OK CR 11, 749 P.2d 556. In that case, the Court quoted the legislature's definition of "attempt" in 21 O.S.1981, § 44⁴ and observed:

This Court has long interpreted this statute as requiring three elements: the intent to commit the crime; the performance of some act toward its commission (commonly called the commission of some overt act); and the failure to complete or consummate the crime. It is equally settled that the overt act must be more than mere preparation or planning the crime. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.

Rosteck, 1988 OK CR 11, ¶ 10, 749 P.2d at 559 (internal quotations and citations omitted). We found the facts in Rosteck did not fit the definition of attempt in Section 44 or the Court's interpretation of that section. Id. 1988 OK CR 11, ¶ 11, 749 P.2d at 559. Rosteck told the victim to remove her clothing, but she was unable to remove her jeans over her boots. No other evidence indicated that Rosteck contemplated rape. We found that Rosteck's demand to undress, without more, was insufficient evidence of an overt act as further conduct by Rosteck would have been required to perpetrate a rape, and the facts presented did not support a finding that the usual and natural course of events was rape. Id. Accordingly, we found the evidence insufficient and reversed Rosteck's conviction for attempted rape with instructions to dismiss. Id. 1988 OK CR 11, ¶¶ 11-12, 749 P.2d at 559.

¶8 Judge Campbell's ruling indicates he found evidence of an overt act lacking for Count 2. The State maintains our unpublished opinion in Crawford v. State, Case No. F-2005-1179 (Feb. 23, 2007) (unpublished) reveals the error in the court's reasoning and shows the preliminary hearing evidence in this case sufficiently satisfied the overt act requirement for bindover. In Crawford, we rejected Crawford's sufficiency of the evidence challenge to his conviction for attempted rape. We explicitly found Crawford's case distinguishable from the facts in Rosteck. Crawford physically restrained the victim. He sat on her and "he was in the process of groping her breasts when he was induced to abruptly halt that activity due to the victim's conduct." Slip op. at 3. Both the victim and Crawford's co-defendant testified they thought a rape "was to be committed." Slip op. at 3. The Court found sufficient evidence of an overt act as it was reasonable to infer that Crawford's conduct "would have 'apparently resulted', in the usual and natural course of events, if not hindered by extraneous causes, in the commission of first degree rape." Slip. op. at 4. In other words, the evidence supported a finding that rape by force was the likely result of Crawford's conduct but for the actions of the victim.

¶9 The preliminary hearing evidence in Krigel's case is nearly identical to the evidence in Crawford. Both A.M. and the victim in Crawford believed they were about to be raped when attacked, straddled, and groped. Both managed to break free from their abusers' grip and escape. The only apparent difference between Krigel's case and Crawford is there was no co-defendant corroborating the victim's testimony that a rape was about to be committed. In Krigel's case, however, there was evidence from two other victims about unwanted sexual contact with Krigel. This evidence served as propensity evidence as well as provided evidence of intent and absence of mistake or accident. 12 O.S.2021, §§ 2404(B), 2413.

¶10 In our view, the preliminary hearing evidence, viewed in the light most favorable to the State, supported a finding that Krigel's actions probably would have resulted, in the usual and natural course of events, in the commission of first degree rape of A.M., if not hindered by her resisting efforts. The district court misinterpreted the constraints of the overt act requirement discussed in Rosteck in evaluating the preliminary hearing evidence. For these reasons, we find the district court erred in finding insufficient evidence of Count 2 and in granting Krigel's motion to quash the charge of attempted first degree rape of A.M.

DECISION