Rojem v. State

• Decision Date: 16 March 1988
• Docket Number: No. F-85-485,F-85-485
• Citation: 1988 OK CR 57,753 P.2d 359
• Parties: Richard Norman ROJEM, Jr., Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 359

753 P.2d 359

Richard Norman ROJEM, Jr., Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-485.

Court of Criminal Appeals of Oklahoma.

March 16, 1988.

Rehearing Denied May 16, 1988.

An Appeal from the District Court of Washita County; Paul C. Braun, District Judge.

Richard Norman Rojem, Jr., appellant, was convicted in Washita County District Court, Case No. CRF-84-35, of Kidnapping, Rape in the First Degree, and Murder in the First Degree. He received sentences of one thousand years' imprisonment for rape and kidnapping, and the death penalty for murder. Judgments and sentences are AFFIRMED.

Mark Barrett, Sp. Counsel, Appellate Public Defender's Office, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Richard Norman Rojem, Jr., was convicted in Washita County District Court, Case No. CRF-84-35, of Kidnapping, Rape in the First Degree, and Murder in the First Degree. He received sentences of one thousand (1,000) years each for the kidnapping and rape convictions, and he received the death penalty for the murder conviction.

The evidence presented at trial was that sometime between 10:00 p.m. on the evening of July 6, and 1:15 a.m. the morning of July 7, 1984, seven-year-old Layla Cummings was abducted from the apartment where she lived with her mother and brother. The mother was at work when notified by the individual who was watching the Cunningham apartment from across the street that Layla was gone from the apartment. Layla's body was found in a plowed field later the morning of July 7, by a Burns Flat farmer. The farmer saw the body as he went to feed cattle, and came no closer than ten feet.

The medical examiner testified that Layla died from two large stab wounds to the neck region which severed a major artery and pierced a lung. She was also stabbed in the vaginal region and received other injuries to the vaginal and rectal area such as bruises and lacerations to the hymen and vaginal wall and finger nail gouges to the buttocks which indicated forced rape. Although no sperm was found in the body, the wrappings of a particular brand of condoms were found around the child.

Appellant was connected to the offenses by a significant amount of circumstantial evidence. He had been divorced from Layla's mother two months prior to this incident. From a recent contact with the family, he was informed of the mother's work schedule as well as the fact that the lock to their apartment door was broken and would not lock. A beer cup with his fingerprint on it was found within twenty-five feet of the Cummings apartment the morning of July 7. He had been at a local bar the evening of July 6, and his beer had been placed in a cup like the one found with his fingerprint on it when he left the bar at approximately 11:50 p.m. ¹ At 1:14 a.m., he called his place of employment where all telephone calls are logged and asked the dispatcher to log the time of his call as 12:35 a.m. Later that morning he requested that the entry be changed to the correct time. Although the footprints in the soil around Layla's body were not distinguishable, tire tracks were. They showed the tracks of a vehicle which drove into the field from the country road with two tires with seven ribs each on the rear, a tire on the front left which had 6 ribs, and a bald tire on the front right. The marks were compatible with the tires on appellant's vehicle, except for the right front tire. However, there was evidence that, the right front tire on appellant's automobile had been changed, and changed as recently as the day of the crimes.

A search of appellant's bedroom on July 7, revealed a used condom containing semen in the trash along with its wrappings like that found on the ground near Layla's body. The particular brand of condoms in question was sold from a dispenser in the men's restroom at the bar appellant visited the evening of July 6. He was seen going into the restroom immediately prior to leaving the bar.

When questioned concerning his whereabouts during the pertinent times, appellant told the police he left the bar when it closed and slowly drove to the Burns Flat Superette, a distance of 24.7 miles, and arrived at 1:10 a.m. on July 7. ² He later went by his girlfriend's house in Dill City, Oklahoma, and then home.

I

Appellant contends that there is insufficient evidence that penetration occurred to support his conviction of rape. He concludes that the medical examiner could not state definitely whether penetration occurred, so the circumstantial evidence "of some sexual activity in the vicinity (an order form for a condom apparently was found in the area) does not establish that there was the requisite penetration."

Oklahoma law provides that rape requires actual penetration, but that any sexual penetration, however slight, is sufficient to complete the crime of rape. 21 O.S.1981, § 1113 and Vaughn v. State, 697 P.2d 963 (Okl.Cr.1985). In the present case, the medical examiner testified that the dead child's hymen, labia minor, labia major and vaginal wall were bruised. It was Dr. Choi's opinion that the bruising resulted from a blunt force trauma to the hymen consistent with being caused by a male penis. She further stated the injuries were inflicted while the victim was yet living.

We find this evidence sufficient to allow any rational trier of fact to find that penetration occurred beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985). When a child was too young and agitated to testify of whether penetration occurred, this Court held in Boydston v. State, 79 Okl.Cr. 172, 152 P.2d 701 (1944), that medical testimony of the bruised and lacerated condition of the victim's hymen and labia minora would sufficiently prove sexual penetration of at least one half inch, it being established that the hymen is located approximately that distance within the vagina. See also Vaughn, supra. Although the medical examiner herein was unwilling to render an opinion whether "penetration in the legal sense" occurred, there was adequate testimony from which the jury could deduce that it had in fact occurred. This assignment is without merit.

II

Appellant contends there is no evidence that the victim was ever confined against her will and that the inference raised by the evidence is that she went willingly with appellant. He argues that she knew appellant well because he had previously been married to her mother for two and one-half years. He further asserts that there was no sign of a struggle and evidence of a later assault does not constitute kidnapping. Therefore, he reasons, that was insufficient evidence to support the conviction of kidnapping.

Appellant asserts that Layla Cummings went voluntarily with him the morning of July 7, 1984. Even if this were true, however, it would not prevent a conviction for kidnapping. Layla was only seven years old at the time of the offenses.

'A child of tender years is ordinarily regarded as incapable of consenting to its seizure and abduction and, when taken from its rightful guardian, is deemed to have been taken without its consent as a matter of law.'

State v. Zimmer, 198 Kan. 479, 426 P.2d 267, 284 (1967) quoting 1 Am. Jur. 2d, Abduction and Kidnapping, § 16; People v. Oliver, 55 Cal.2d 761, 12 Cal.Rptr. 865, 361 P.2d 593 (1961); State v. Hoyle, 114 Wash. 290, 194 P. 976 (1921); John v. State, 6 Wyo. 203, 44 P. 51 (1896). The court in Hoyle expounded kidnapping under the common law. A child of tender years was incapable of consenting to its own seizure. A child of eleven and one-half years was not able to consent to being removed from his parent's or guardian's custody. John, supra.

We find that Layla Cummings was incapable of giving consent to her seizure and that the evidence offered at trial was sufficient that any rational trier of fact could find beyond a reasonable doubt the elements of kidnapping.

III

During voir dire of the veniremen, one prospective juror responded affirmatively when asked whether she had personal, moral or religious convictions that would prevent her from considering the death penalty even if she believed appellant was guilty of first degree murder. She further agreed that she could not at that time think of a set of circumstances in which she could give the death penalty. Defense counsel later raised a hypothetical crime much different from the case at hand and inquired whether she could impose the death penalty in that case. She responded that she probably could.

Appellant complains that the trial court erred in excusing the juror for cause and thereby violated the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

This Court has previously held that a trial court exercises its discretion in excusing for cause those jurors in a capital case whose views concerning the death penalty would prevent or substantially impair the performance of their duties as jurors. Banks v. State, 701 P.2d 418 (Okl.Cr.1985). Because the trial court personally observes the jurors and their responses, this Court will not disturb its decision absent an abuse of discretion.

We find that the trial court herein did not abuse its discretion. Although the prospective juror did acknowledge that there might be some extreme situations in which she would consider imposing the death penalty, "deference must be paid to the trial judge who sees and hears the juror." Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841, 852 (1985). The Court in Witt denied that the record must be unmistakably clear concerning a juror's bias in relation to the death penalty, noting that some veniremen could not be asked enough questions to establish such a record. Even when the record is not unmistakably clear, a judge may nonetheless have a definite impression that the prospective juror would be unable to properly fulfill his or her oath.

IV

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