Peninger v. State

• Decision Date: 15 July 1986
• Docket Number: No. F-83-626,F-83-626
• Citation: 1986 OK CR 113,721 P.2d 1338
• Parties: Larry Dale PENINGER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1338

721 P.2d 1338

Larry Dale PENINGER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-626.

Court of Criminal Appeals of Oklahoma.

July 15, 1986.

William S. Flanagan, Yukon, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Deputy Chief, Criminal Div., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

The appellant, Larry Dale Peninger, was charged by information in the District Court of Oklahoma County, Case No. CRF-83-246, with the crimes of Kidnapping, Oral Sodomy, Anal Sodomy, and First Degree Rape. He was convicted on each count and sentenced respectively to ten (10) years'; twenty (20) years'; twenty (20) years'; and, seventy-five (75) years'. The trial court set the sentences to run consecutively in addition to assessing a $500 payment on each count to the Victim's Compensation Fund within one year of the defendant's release from prison. From this judgment and sentence appellant has perfected an appeal to this Court.

On January 7, 1983, Oklahoma City resident D.D. went to a local night spot to meet some friends. After leaving the club D.D. went to a nearby Save-A-Stop for gas. As she was pumping the gas, the appellant pulled up next to her and asked for directions to a local night spot. D.D. gave the appellant directions but he then asked her to write it down for him and handed her a pen and a piece of paper. As she began to write down the directions, the appellant put a knife to her throat and forced her into his truck. The appellant ordered her to place her hands underneath his seat so that she could not freely move them and pushed her head down into his lap. Appellant forced D.D. to wear a ski mask backwards over her face so that she could not see where they were going.

The appellant took D.D. to a house in a secluded area. D.D. begged the appellant not to harm her and asked if she could call her parents. D.D. called her mother and told her that she was with a friend and would not be home until later, while the appellant allegedly squeezed her shoulder and instructed her as to what to say. The appellant then made D.D. call the Save-A-Stop where her car was and tell them to park her car at the side of the building.

The appellant forced her to perform fellatio on him, then he performed cunnilingus on her while he forced her to perform fellatio on him again.

She testified that appellant became angry because he claimed that she did not satisfy him and she begged him not to harm her because she had a tumor on her ovary and was under a doctor's care. She testified that she feared the appellant even when he later followed her to the hospital. The appellant forced her to sodomize him again. The appellant then forced D.D. to have intercourse with him. Appellant then performed anal sodomy on D.D. until she began screaming and yelled that her tumor had ruptured and she was going to bleed to death.

The appellant put D.D. in his truck to take her to Mercy Hospital in Oklahoma City. In route to the hospital the appellant spotted two police officers and stopped to ask assistance to the hospital. The appellant got out of his truck and spoke with the officers. D.D. never told the police what had happened because she testified she was scared and embarrassed. The officers testified that D.D. was crying and appeared to be in a state of hysteria.

The ambulance transported D.D. to the hospital. Before the ambulance drove off, however, D.D. instructed the ambulance attendant to get the appellant's license number. The attendant specifically asked whether she had been raped or hurt, and again D.D. testified she told him no because she was frightened. On the way to the hospital, D.D. told the ambulance attendant that appellant was not a friend and that he had abducted her at knifepoint.

D.D. told an Oklahoma City police officer at the hospital that she had not been raped, "but that he put it in my rectum." Once alone with a female nurse, D.D. told her that she had been raped at knifepoint. D.D. was transported by the Village Police from Mercy Hospital to Oklahoma Memorial Hospital for a rape examination.

A search warrant was obtained and the appellant's home was searched on January 8, 1983. Police found the knife and ski mask in the appellant's truck.

The appellant gave several versions of what had happened that night because he testified he wanted to keep D.D. out of trouble with her father. The appellant denied the kidnapping by use of any force, or putting his penis in the victim's mouth, vagina or rectum. Appellant testified that all they did was roll around together on the bed naked.

The doctor who examined D.D. found small flecks of semen on the victim's hands and her right buttock. The doctor found no indication of trauma, injury, contusions, or abrasions around the anus or vaginal area.

Forensic chemist Joyce Gilchrist analyzed the sexual assault kit. Ms. Gilchrist discovered the appellant had Type B blood and was a secretor. The semen present on the victim's right buttock was analyzed to have come from a Type B secretor. Seminal fluid detected on the crotch of the victim's jeans also matched the appellant's Type B secretor status. In addition, hair discovered on the ski mask found in appellant's truck was similar to the victim's hair.

On appeal, appellant asserts he was denied effective assistance of counsel. We have examined this claim in light of the standards announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2042, 2052, 80 L.Ed.2d 674 (1984), and find this claim to be without merit.

Appellant's second assignment of error alleges that the evidence was insufficient to support the jury's verdict of guilt. This Court announced the proper test to be used in a sufficiency of the evidence challenge in Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985), as set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) which is:

Whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.

The jury in this case could have found from the evidence, beyond a reasonable doubt, appellant was guilty of the crimes charged. D.D. testified before the jury that appellant penetrated her orally, anally and vaginally. There appears to be little, if any, physical evidence to bear out D.D.'s testimony. However, the law provides that the slightest penetration is sufficient to accomplish the offense of rape. The jury apparently believed D.D.'s testimony and entered its findings accordingly.

Appellant's third assignment of error contends the trial court erred in not giving appropriate jury instructions. Specifically, appellant argues the trial court erred by failing to submit an instruction on corroboration to the jury. The appellant neither objected nor submitted alternative instructions for the trial court to consider; therefore, his right to object to the instructions is waived. Stratton v. State, 643 P.2d 645 (Okl.Cr.1982); Garcia v. State, 639 P.2d 88 (Okl.Cr.1981). Notwithstanding, there was sufficient evidence to corroborate D.D.'s testimony. Appellant's testimony alone provided sufficient...