Ziegler v. State, F-78-143

• Decision Date: 15 April 1980
• Docket Number: No. F-78-143,F-78-143
• Citation: 610 P.2d 251,1980 OK CR 23
• Parties: Robert Randall ZIEGLER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 251

610 P.2d 251

Robert Randall ZIEGLER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-143.

Court of Criminal Appeals of Oklahoma.

April 15, 1980.

As Corrected April 23, 1980.

An Appeal from the District Court, Tulsa County; Margaret Lamm, Judge.

Robert Randall Ziegler, appellant, was convicted of two counts of Rape in the First Degree, two counts of Sodomy, Burglary in the First Degree, and Unauthorized Use of a Motor Vehicle, all After Former Conviction of a Felony; was sentenced to two terms of life imprisonment plus twenty (20) years on each of the Rape charges; thirty (30) years on each of the Sodomy charges; forty (40) years for Burglary, and twenty-five (25) years for Unauthorized Use of a Motor Vehicle, and appeals. Sentences are MODIFIED to two terms of life imprisonment for Rape in the First Degree; fifteen (15) years' imprisonment for Sodomy, each conviction; twenty (20) years' imprisonment for Burglary in the First Degree, and ten (10) years' imprisonment for Unauthorized Use of a Motor Vehicle, and as modified are AFFIRMED.

Frank H. McCarthy, Asst. Public Defender, Tulsa County, for appellant.

Robert Randall Ziegler, pro se.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Carol Elaine Alexander, Legal Intern, for appellee.

OPINION

BRETT, Judge:

Robert Randall Ziegler comes before this Court to appeal his six convictions in the District Court of Tulsa County, Case Nos. CRF-78-686, 687, 688, 689, 690 and 691. His convictions resulted from two charges of Rape in the First Degree, 21 O.S.1971, § 1114; Two charges of Sodomy, 21 O.S.1971, § 886; Burglary in the First Degree, 21 O.S.1971, § 1431; and Unauthorized Use of a Motor Vehicle, 47 O.S.1971, § 4-102. ¹ The jury found the defendant guilty of all charges After Former Conviction of a Felony. Punishment was set at life imprisonment plus twenty (20) years on each of the Rape charges, thirty (30) years on each of the Sodomy charges, forty (40) years for the Burglary, and twenty-five (25) years on the Unauthorized Use of a Motor Vehicle. The sentences are to run consecutively. Attorney Frank H. McCarthy has filed a brief alleging five errors in the trial, and the defendant has filed a pro se brief consisting of eleven assignments of error. This opinion will address only those allegations that merit discussion and deal briefly with the remainder.

At about 11:00 p. m. Saturday, March 12, 1977, Ms. J. S. locked all the doors and windows of her Tulsa apartment and then she and Ms. E. H. each retired. Ms. E. H., whose thirteenth birthday was the following day and who will hereinafter be referred to as the juvenile, was a resident of a children's home, and Ms. J. S. had developed a "sister" relationship with her.

At about 1:00 a. m. Sunday, March 13, Ms. J. S. screamed upon awakening to find a man standing at the foot of her bed. The intruder told her to "shut up or I'll kill you," and then forced her to yield to a sexual assault which lasted two hours. The victim was penetrated vaginally, orally, and anally, and at one point her assailant ordered her to suck his neck, which she did, leaving a red mark. During this time, Ms. J. S. provided her assailant with a bottle of baby oil. From this bottle, a single identifiable fingerprint was entered into evidence at trial. Ms. J. S. testified that the double thickness light weight bedroom curtains remained drawn throughout the ordeal, but that the light from two exterior gas lamps, each of which had two burners, partially illuminated the room from their location of 20 to 25 feet beyond the bedroom window. She further testified that the light in her bedroom was sufficient for her to identify the defendant, who "was within six inches of (her) face for almost two hours."

After approximately two hours, the assailant bound and gagged Ms. J. S. and placed her on the floor next to her bed. He then awakened the juvenile. When the man accompanied the juvenile to the bathroom, she turned on the bathroom light and saw her attacker in full light. She and Ms. J. S. both identified the defendant in court as the rapist.

The man took the juvenile to Ms. J. S.'s bedroom where he raped her, as well as forcibly committing anal and oral sodomy with her for about 30 minutes. The juvenile then located Ms. J. S.'s car keys for the attacker, at his request, and he left in Ms. J. S.'s car.

In their investigation at the scene of the crime, the police recovered the already mentioned fingerprint as well as several hairs from the bedsheets. The fingerprint was identified as that of the defendant, and the hair samples were determined to be consistent with a specimen later taken from the defendant, although it is impossible to make an absolute identification through hair comparison. Ms. J. S.'s Oldsmobile was found with a flat tire six to eight blocks from the defendant's residence on March 14, 1977.

At trial, Marty Randolph testified that he was with the defendant on the evening of March 12, 1977. After leaving a local tavern, they returned to the defendant's apartment. When the defendant got back into Randolph's car, Randolph heard the jingling of keys. The defendant instructed the witness to drive to a certain street and then asked to be let out at a location within two to three blocks of Ms. J. S.'s apartment, approximately one-half hour prior to the attack. The defendant said that he was going to visit friends and would not need a ride home. Randolph saw the defendant again at about 11:00 a. m. the following morning and noticed a red mark on the defendant's neck. We also note that the defendant had been employed at the apartment complex, where Ms. J. S. resided, until approximately two weeks before the attack and that the complex manager testified that the defendant had had access to master keys to the apartment units.

The parties stipulated that an examination of Ms. J. S. by a Tulsa physician disclosed evidence of sperm and trauma in the internal and external genitalia as well as trauma to the rectal area. It was further stipulated that the juvenile suffered trauma to the genital and rectal areas, although there was no evidence of sperm. Included in the stipulations was the fact that tests for blood typing of sperm samples are available under certain conditions, but that they had not been performed on these samples. Further, the parties stipulated that Dr. Vammen, who performed the tests, would have testified that he would be unable to state whether the proper conditions had existed for blood grouping in this case.

The defendant first alleges that the trial court erred in allowing his prosecution and punishment for multiple offenses arising out of a single transaction, citing 21 O.S.1971, § 11, which reads in part as follows:

"(A)n act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, . . . but in no case can (it) be punished under more than one; and an acquittal or conviction and sentence under either one, bars the prosecution for the same act or omission under any other." (Footnote omitted)

It is the defendant's contention that the series of acts was in fact a single transaction with but one objective, so that only one of the six charges should have been prosecuted. This argument is without merit. It is clear that each of the acts was distinct from the other and that the elements of proof of the different crimes did not overlap each other.

Over a period of three hours, the defendant completed the following crimes: He committed burglary in the first degree when he broke into and entered the victim's dwelling in the nighttime, wherein slept the two victims; and he did so with the intention to commit a crime, 21 O.S.1971, § 1431. The crime of burglary is complete upon entry, and the evidence of the completion of the intended crime is only evidence of intent; it is not a necessary element of burglary. Smith v. State, Okl.Cr., 347 P.2d 232 (1959), and Lyons v. State, Okl.Cr., 516 P.2d 283 (1973). The crime of rape in the first degree was completed as to both victims by the forcing of sexual intercourse through threats of immediate and great bodily harm accompanied by the apparent power of execution; furthermore, the juvenile was a female under the age of 14 and the defendant was a male over the age of 18. Title 21 O.S.1971, § 1114. Upon the completion of the acts of oral and anal intercourse with both females, the crime of sodomy was accomplished, 21 O.S.1971, § 886. Finally, the defendant used Ms. J. S.'s automobile, without her freely given consent, and with the intention to deprive her of that possession at least temporarily, in violation of 47 O.S.1971, § 4-102. Clearly, each of these crimes consists of separate and distinct elements, none of which merge into the proof of any of the others.

In his second argument on appeal, the defendant urges this Court to hold that the admission of the in court identification of the defendant by the two victims was error. A review of the transcript of the pretrial hearing on this motion discloses the correctness of the trial court's ruling. The guidelines suggested in Thompson v. State, Okl.Cr., 438 P.2d 287 (1968), were substantially followed by the police, including our recommendation that counsel be present to safeguard the rights of the accused and our suggestion that a photograph of the participants be taken. There is no prohibition against conducting both photographic and in person lineups, as the defendant suggests. Notwithstanding the apparent...