Yeary v. State

• Decision Date: 14 September 1971
• Docket Number: No. 271S31,271S31
• Parties: Robert Steven YEARY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 96

273 N.E.2d 96

257 Ind. 159

Robert Steven YEARY, Appellant, v. STATE of Indiana, Appellee.

No. 271S31.

Supreme Court of Indiana.

Sept. 14, 1971.

Rehearing Denied Oct. 26, 1971.

Frederick B. Robinson, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

On June 4, 1970, the appellant was charged by Indictment, in the Marion Criminal Court, with the rape of a female person. The appellant was taken in custody on June 4, 1970, and was held to bail in the sum of five thousand ($5,000.) dollars. On June 9, 1970, appellant requested a reduction in his bond to two thousand ($2,000.) dollars, which was granted by the court. On June 24, 1970, appellant waived arraignment and pleaded 'Not guilty.' Appellant requested and was granted a jury trial, set for October 5, 1970. At the conclusion of all the evidence, the jury returned a verdict of guilty. The court passed sentence on the appellant as follows:

'* * * The Court now sentences Defendant Robert S. Yeary, age 23, to the Indiana State Reformatory for two (2) to twenty-one (21) years and costs.'

The record discloses that the prosecuting witness, an eighteen (18) year old girl, testified as to the following facts. On February 26, 1970, the girl was waiting on a street corner in Indianapolis, to catch a bus, as she did every evening, to return to her home after work. While waiting on the street corner, the appellant and his brother stopped the small van-type truck in which they were riding and asked the girl if she would like a ride. The girl accepted the offer and got into the truck, after one of the men alighted so she could sit between them. As there were only two seats in the truck, the girl had to sit on the raised area between the two seats, which covered the engine. After some idle chatting, the appellant put the girl on his knee whereupon she told him she wanted off his knee and slid back to her seat on the engine covering. A short while later, the appellant asked the girl to kiss him, and she refused, and he pulled her down asking again for a kiss. The appellant and his brother drove past the point where the girl had told them she wanted off, near her home. Shortly thereafter, the appellant asked the girl to get into the open rear area of the truck. When she refused both men pushed her into the rear of the van. The appellant's brother who had been driving the truck put his body on top of the girl to hold her down. After stopping the truck, the appellant entered the rear of the truck and told the girl to remove her clothes, which she refused to do. The appellant then took the girl's clothes off of her and forcibly had sexual intercourse with her. The brother then switched places with the appellant and he too had forcible intercourse with the girl. The girl screamed and resisted the men but could not defend herself. The windows of the truck were high and closed and the rape took place on the floor of the truck where no one could see from the outside. The appellant offered a contradictory statement of the facts but admitted having sexual intercourse with the girl, who he alleged consented and accepted five dollars payment for the act from each of the brothers.

Appellant sets forth seven propositions, each alleging commission of error by the trial court. Appellant, in the first three of his propositions, urges that there was insufficient evidence to support his verdict. Specifically, appellant contends that the State failed to prove that the rape of the girl was without her consent, that her testimony alone, without corroborative evidence, was not sufficient proof of the offense. In reviewing this allegation this Court will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the trial court. Washington v. State (1971), Ind., 271 N.E.2d 888, Davis v. State (1971), Ind., 271 N.E.2d 893, Grimm v. State (1970), Ind., 258 N.E.2d 407, Sharp v. State (1970), Ind., 260 N.E.2d 593, Smith v. State (1970), Ind., 260 N.E.2d 558, and Langley v. State (1968), 250 Ind. 29, 232 N.E.2d 611. The evidence clearly shows that there was carnal knowledge of the girl, a female person. Further, the evidence most favorable to the State, the testimony of the raped girl, shows that the carnal knowledge was with force and against her will. Thus, all the elements of the offense were supported by sufficient evidence. Also, this court holds that the uncorroborated testimony of the victim alone, is sufficient evidence to support the conviction of the defendant charged with rape. McCormick v. State (1971), Ind., 267 N.E.2d 78; Smith v. State (1971), Ind., 266 N.E.2d 216; Grimm v. State (1970), Ind., 258 N.E.2d 407; Woods v. State (1968), 250 Ind. 132, 235 N.E.2d 479; Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649; Abshire v. State (1927), 199 Ind. 474, 158 N.E. 227.

Appellant in his fourth proposition contends that the trial court committed substantial error which materially contributed to the verdict, when it made several rulings regarding the admissibility of certain evidence. To support his contention, the appellant has failed to present in his briefs any argument or citations and as a result has not complied with Appellate Rule 8.3(A)(7).

In the appellant's fifth proposition he urges that the trial court erred in giving several final instructions over his objection. Again, appellant has failed to show how he was injured by the alleged erroneous giving of the instructions and has cited no authority to support his contentions, thus, he has waived these errors on appeal.

Appellant's proposition number six alleges that the trial court erred in refusing to give his tendered instructions, number two, three, and four. First, as to instruction number two, appellant has failed to show how he was injured by the court's refusal to give his tendered instruction number two, perhaps because it was impossible to do so as instruction number one given by the court, was substantially the same as appellant's tendered instruction number two. For two reasons appellant's contention, as to his tendered instruction number two, must fail. First Appellate Rule 8.3(A), supra, provides that the alleged error is deemed waived when the appellant fails to show how the alleged error injured him. Second, where a tendered but refused instruction is substantially the same as an instruction given by the court, such refusal cannot constitute error. Doss v. State (1971), Ind., 267 N.E.2d 385; Lambert v. State (1969), Ind., 249 N.E.2d 502. Without setting out the instructions, we find that appellant's tendered instruction number two is substantially the same as instruction number one given by the court. As to appellant's tendered instruction number three we again must point out that the appellant has failed to show how he was injured by the court's refusal to give his tendered instruction number three, thus failing to comply with Appellate Rule 8.3(A), supra, and thereby waiving the error on appeal. Appellant erroneously cites Diblee v. State (1931), 202 Ind. 571, 177 N.E. 261, where this court held it was reversible error for the trial court to refuse to give the appellant's instruction, similar to the appellant's instruction number three in the instant case, instructing the jury to consider 'hearsay' testimony, of statements...