Grimm v. State

• Decision Date: 26 May 1970
• Docket Number: No. 868,868
• Parties: Gary GRIMM, Appellant, v. STATE of Indiana, Appellee. S 130.
• Court: Indiana Supreme Court

Page 407

258 N.E.2d 407

254 Ind. 150

Gary GRIMM, Appellant, v. STATE of Indiana, Appellee.

No. 868 S 130.

Supreme Court of Indiana.

May 26, 1970.

James W. Bradford, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Kenneth M. McDermott, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant was charged by indictment with the crime of statutory rape, said indictment in pertinent part reads as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that GARY GRIMM on or about the 1st day of SEPTEMBER, A.D. 1967, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously make an assault in and upon one KATHLEEN BROSNAN (sic) then and there being a female child under the age of Sixteen (16) years, to-wit: of the age of Fifteen (15) years, and she then and there not being the wife of the said GARY GRIMM and did then and there feloniously and unlawfully ravish and carnally know her, the said KATHLEEN BROSNAN (sic), then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

On October 25, 1967, appellant waived arraignment to the above-mentioned charge and entered a plea of not guilty. Trial by jury was had beginning March 26, 1968. On March 27, 1968, the jury returned its verdict finding appellant '* * * guilty of the crime of Rape as charged in the indictment * * *.' The court thereupon ordered a pre-commitment investigation made, the same being set for consideration on April 11, 1968. Judgment was rendered on the verdict on April 12, 1968. The court, on the verdict of the jury, found appellant guilty of the crime of rape and sentenced him to the Indiana State Reformatory for not less than two nor more than 21 years.

A motion for new trial was filed by appellant on May 9, 1968, said motion reading in pertinent part as follows:

'Comes now the Defendant, Gary Grimm, with his public defender, in the above entitled cause of action and moves the Court for a New Trial, for the following reasons, to-wit:

1. That the verdict of the Jury was not sustained by sufficient evidence.

2. That the verdict of the Jury was contrary to law.

WHEREFORE, the defendant moves the court for a new trial of the cause herein.'

Appellant's motion for new trial was overruled May 9, 1968. His sole Assignment of Error is that:

'1. The Court erred in overruling appellant's motion for a new trial, which motion was based upon the fact that there was not sufficient evidence to convict the appellant by the Jury and that such verdict by the Jury was contrary to Law.'

From the evidence adduced at trial it appears that on or about September 1, 1967, Kathleen Brosman, a child of fifteen years of age, saw appellant at the Huddle Restaurant (located at 56th and Illinois Streets in the City of Indianapolis) at approximately 9:45 p.m. She knew appellant slightly, having previously made his acquaintance through a friend of hers; she also knew appellant's former wife, and had baby-sat for her on a couple of occasions prior to the date in question. Miss Brosman asked appellant if he could take her home, and the latter agreed to do so. On the way they stopped at a liquor store in Broad Ripple and appellant purchased some liquor and beer. Instead of then proceeding to Miss Brosman's home, appellant drove to a house located at 847 W. 53rd Street. The complainant waited in the car while appellant went into the house. He returned a short time thereafter, and the couple then proceeded to a service station at the corner of 46th and Illinois Streets. After the complainant had used the restroom facilities therein, appellant drove her back to the above-mentioned residence. He invited her inside, and upon entering the discovered that no one else was present. She insisted that she be taken home. Instead, appellant disregarded her wishes, began dancing with her, and finally picked her up and carried her into the bedroom. She repeatedly demanded that appellant take her home, but instead of doing so he pinned her down against the bed by holding her by the neck. He thereafter began to forcibly disrobe her and stated to her that, 'I brought you here for one reason, to lay you, and I intend to.' Appellant then had sexual intercourse twice with the complainant. A large amount of blood was left on the bed where the alleged attack took place which, according to the victim, came from her vagina.

A short time after these events transpired, Mr. Leonard Wechsler, who was at that time living at the above-mentioned address with the appellant, and Mrs. Wechsler returned and found Miss Brosman and appellant. Mr. Wechsler observed the blood on the sheet in the bedroom and immediately began to change the bedding. Mrs. Wechsler entered the same bedroom after her husband had removed the sheets and observed blood on the mattress. Within a very short time thereafter appellant drove Miss Brosman home.

Appellant's sole argument on appeal is essentially that there was insufficient evidence presented to the court below upon which his conviction could be sustained. Were we to adhere strictly to the rules of procedure adopted by and for this Court, this specification of error could not be considered at this time due to the fact that appellant has failed to comply with Indiana Supreme Court Rule 1--14B, which was in existence at the time this appeal was filed. Said rule reads as follows:

'Whenever a new trial is requested on the ground or grounds 'that the verdict or decision is not sustained by sufficient evidence or is contrary to law,' the moving party shall file a memorandum stating specifically under such itemized cause wherein such evidence is insufficient or the verdict or decision is contrary to law. The party filing such motion shall be deemed to have waived any ground not specified in the memorandum.'

However, this Court has followed the policy of deciding appeals on their merit where it is practicable for us to do so, and when the issues have been clearly placed before us. Locke v. State (1969), Ind., 250 N.E.2d 372; Lytle v. State (1968), Ind., 241 N.E.2d 366. We therefore prefer to and do consider this case on the merits.

To support his contention that his conviction should be reversed because there was insufficient evidence presented below to sustain it, appellant points to the fact that '(t)he record clearly reflects that whether or not the alleged crime was committed is evidenced solely by the testimony of the alleged victim, Kathleen Brosman.' (Appellant's brief, page 39). He then attempts to attack the credibility of this witness so as to render the...