Hepp v. State
Hepp v. State
Opinion of the Court
OPINION
The appellant, Robert Howard Hepp, Jr., was convicted in the District Court of Tulsa County, Case No. CRF-84-4290, of one count of Assault With a Dangerous Weapon After Former Conviction of Two or More Felonies, two counts of First Degree Rape After Former Conviction of Two or More Felonies, and three counts of Forcible Sodomy After Former Conviction of Two or More Felonies. On the assault conviction he received a sentence of 100 years’ imprisonment; on the two rape convictions he received a sentence of 120 years’ imprisonment on each count; and on the three forcible sodomy convictions he received a sentence of 150 years’ imprisonment on each count. He appeals raising four assignments of error.
On October 14, 1984, at about 9:25 a.m., L.L. was in the lanudry room of her apartment complex in Tulsa when the appellant entered, put his arm around her neck, showed her a knife and ordered that she do as she was told or he would kill her. He removed her clothes and repeatedly raped and sodomized her. He then tied her up, using her clothing, and left. The victim picked the appellant out of a lineup within two weeks of the attack. A tape recording of the appellant’s confession in which he admitted the attack on the victim was played to the jury.
In his first assignment of error the appellant complains that the trial court improperly denied his motion to suppress the confession obtained the day that he was arrested. The trial court at the proper time in the trial conducted a hearing outside the presence of the jury to determine if the appellant’s confession was voluntary. Although evidence was contradictory between the testimony of the officer who conducted the interrogation and that of the appellant, an examination of the record supports the finding that competent evidence was presented that the confession was given voluntarily by the appellant and with full knowledge of his constitutional rights. Because there is sufficient evidence to support the trial court’s admission of the statement, this assignment of error has no merit. See Seth v. State, 647 P.2d 452 (Okl.Cr. 1982).
The appellant next maintains that the trial court erred in overruling his motion to compel the State to elect between counts. The appellant argues that he was charged with two counts of rape and two counts of anal sodomy
In his last assignment of error the appellant alleges that improper prose-cutorial remarks caused the jury to assess excessive punishment. After examining the remarks, we cannot find that they either determined the verdict, or caused the appellant to receive an excessive sentence. See Mahorney v. State, 664 P.2d 1042 (Okl.Cr. 1983). Considering the overwhelming evidence of the appellant’s guilt, the fact that he had six prior felony offenses, all of which were sexual offenses, we cannot say that the sentences he received were excessive. See Scott v. State, 674 P.2d 54 (Okl.Cr. 1984).
The judgments and sentences are AFFIRMED.
. The appellant was also charged with one count of oral sodomy.
Concurring in Part
concurring in part and dissenting in part:
I agree that appellant’s conviction should be affirmed on one count of rape and two counts of sodomy. However, I believe stare decisis dictates that the second rape and sodomy charges should not have been prosecuted. Our holding in Crawford v. State, 688 P.2d 347 (Okl.Cr. 1984) supports appellant’s position. There, we stated:
[Tjhis court has held where two acts of rape have occurred within a short period of time, it is part of a continuous process and constitutes only one crime. Wade v. State, 556 P.2d 275 (Okl.Cr. 1976); Turnbow v. State, 451 P.2d 387 (Okl.Cr. 1969).
Id. at 348-49.
Our decision in Colbert v. State, 714 P.2d 209, 211-12 (Okl.Cr. 1986), cited in the majority opinion, does not hold to the contrary. In Colbert, the appellant raped his victim once. There was then a short conversation during which the victim cried for ten minutes after appellant said he would not free her. The appellant then offered her a deal wherein he would release her if she had sex with him again. She said nothing and resumed crying. Appellant then raped her again. Judge Brett wrote:
[W]e find no error in charging the appellant with and convicting him of two counts of rape. Every element of each rape was proven as to each count. After the appellant had raped his victim once, he formed the intent to commit a second assault on her.
Id. at 212 (emphasis supplied). Such is not the case before us. Appellant raped the victim, then anally sodomized her. Without pausing, he repeated the acts, then forced her to orally sodomize him. The entire series occurred within minutes. The evidence simply did not show any significant gap between the acts so as to find that appellant formed the intent needed to prove a second rape and sodomy. Cf. Weatherly v. State, 733 P.2d 1331, 1337-38 (Okl.Cr. 1987). There is little question that
Case-law data current through December 31, 2025. Source: CourtListener bulk data.