442 N.E.2d 1109 (Ind. 1982), 181S13, Brown v. State

Docket Nº181S13.
Citation442 N.E.2d 1109
Party NameJames Smysor BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Case DateDecember 29, 1982
CourtSupreme Court of Indiana

Page 1109

442 N.E.2d 1109 (Ind. 1982)

James Smysor BROWN, Appellant (Defendant below),

v.

STATE of Indiana, Appellee (Plaintiff below).

No. 181S13.

Supreme Court of Indiana.

December 29, 1982

Page 1110

Rehearing Denied Feb. 25, 1983.

Page 1111

John Richard Walsh, II, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, James Smysor Brown, was convicted by a jury of nine different

Page 1112

counts in three consolidated cases. He was found guilty on three counts of rape, a Class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1979 Repl.), three counts of confinement, a Class B felony, Ind.Code Sec. 35-42-3-3 (Burns 1979 Repl.), two counts of robbery, a Class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.), and one count of attempted robbery, a Class B felony, Ind.Code Secs. 35-41-5-1 and 35-42-5-1 (Burns 1979 Repl.). He was sentenced to the Indiana Department of Correction for terms of thirty years on each count of rape, ten years on each count of confinement, and ten years on the counts of robbery and attempted robbery. The sentences within each of the three cases are to be served concurrently but the sentences on each different case are to be served consecutively for a total period of ninety years. Defendant raises the following six issues in his direct appeal.

1. Whether there was sufficient evidence to support the jury's verdict on the three convictions for rape and the two convictions for robbery;

2. Whether the conviction for attempted robbery was erroneous due to the alleged insufficiency of the charging information on that count;

3. Whether the trial court erred in denying defendant's petition to file a belated motion for new trial due to the alleged inadequacy of his original motion to correct error;

4. Whether the trial court committed reversible error in denying defendant's motion to suppress certain evidence;

5. Whether defendant was denied his constitutional right to the effective assistance of counsel; and

6. Whether the trial court erred by not stating sufficient reasons for imposing consecutive sentences.

A brief summary of the facts from the record most favorable to the state shows that the victim in the first case, C.T., was leaving a grocery store around 8:00 p.m. on the evening of December 5, 1979, when she was approached in the parking lot by a man later identified as defendant, who asked directions to a specific street address. After she gave the requested directions, the man placed a knife to her side and forced her to enter her car and drive around as he directed. Eventually he ordered her to pull over to the side of the road and get into the back seat with him. He forced her to engage in oral sex and intercourse and then demanded money from her. Since C.T. only had a few dollars with her, she invented a story about being able to obtain money from her aunt. When they arrived at her aunt's home, C.T. ran into the house and the man left, taking her driver's license with him.

In the second case, the victim, J.W., testified that she was going to her car after leaving work around 9:30 p.m. in the evening of December 5, 1979, when she was approached by defendant. He asked her questions about the location of a certain address and she agreed to take him to a telephone. When defendant was inside her car, he pulled out a knife and told her not to scream or she would be hurt. He forced her to drive around for a while and then forced her to get into the back seat and engage in oral sex and intercourse. He then asked her for money and she gave him twenty-five dollars but hid other money that she had with her in her shoe. Before he left her, defendant took her driver's license and threatened to harm the people at that address if she reported the attack.

In the third case, the victim, J.M., testified that she was getting into her car on the evening of November 10, 1979, when defendant accosted her, put a knife to her throat, and told her not to scream or he would cut her head off. As in the other two cases, defendant ordered J.M. to drive around, then had her stop the car and get into the back seat where he raped her and forced her to engage in other sexual acts. After the sexual assault, defendant demanded money from her and was not satisfied when she said she only had thirteen dollars with her. Defendant forced her to try using a bank teller machine to obtain more money, and when that didn't work, J.M. invented a story about being able to

Page 1113

borrow money from a girlfriend. She could not reach this friend by telephone, so defendant finally took the money she had and her driver's license. He threatened to kill her and her family if she told anyone about the incident.

I.

Defendant first contends that there was insufficient evidence on the element of penetration in each of the three cases to sustain the three convictions for rape. Our standard for reviewing sufficiency claims is firmly established; on appeal the reviewing court does not weigh the evidence or judge credibility. We are constrained to consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Fielden v. State, (1982) Ind., 437 N.E.2d 986; Duffy v. State, (1981) Ind., 415 N.E.2d 715; Wofford v. State, (1979) Ind., 394 N.E.2d 100.

A conviction for the crime of rape as a Class A felony requires proof of knowing or intentional sexual intercourse with a member of the opposite sex committed by using or threatening the use of deadly force. Ind.Code Sec. 35-42-4-1, supra. The term "sexual intercourse" is defined as "an act that includes any penetration of the female sex organ by the male sex organ." Ind.Code Sec. 35-42-1-2 (Burns 1979 Repl.). It is well settled that our standard in cases of rape is that proof of the slightest degree of penetration is sufficient. Rowan v. State, (1982) Ind., 431 N.E.2d 805; Allbritten v. State, (1974) 262 Ind. 452, 317 N.E.2d 854. The fact finder may infer penetration from circumstantial evidence such as the physical condition of the victim soon after the incident. Rowan v. State, supra; Weaver v. State, (1963) 243 Ind. 560, 187 N.E.2d 485.

In the instant case, it is true that none of the three victims used the specific word "vagina" in describing the acts of rape committed by defendant. However, each victim did give a description of defendant's various actions during each assault. In the first case, the victim testified that after the oral sexual act, defendant told her to lie back in the seat, took her underwear off, spread her legs apart, and "put his penis in me." She also specifically stated that defendant had "raped" her and "had sex" with her. In the second case, the victim testified that after the oral sex, defendant forced her to take her pants off and "then he started having intercourse with me" which lasted "three to five minutes."

The third victim testified that after defendant forced her to get into the back seat of the car, he took off her blue jeans, panties, and panty hose and demanded that she perform fellatio. She testified:

A. "Yes. He forced his penis in my mouth. Yes he did. Uh, he committed his sexual acts. At one time he did anal intercourse, uh, and then he also, uh, re-entered and finished his intercourse, whatever. Uh, he at that point, he told me to get my clothes back on and he told me if I told anybody about this that I would be dead. Uh, I told him I wouldn't. But ..."

Q. "So, you actually had intercourse with the man?"

A. "Yes I did."

Q. "Against your will?"

A. "Yes it was."

While this testimony establishes acts of oral and anal sex, it also supports the inference that defendant finished his sexual assault by completing vaginal intercourse.

It is clearly settled in this state that the uncorroborated testimony of a rape victim is enough to support a conviction. Tillman v. State, (1980) Ind., 408 N.E.2d 1250; Dobrzykowski v. State, (1978) 269 Ind. 604, 382 N.E.2d 170. While it is true that more specific questioning of each victim would have been desirable for purposes of appellate review, the testimony of each victim does include sufficient specific details which, together with the terms "rape" and "sexual intercourse" used by the victims,

Page 1114

support the jury's conclusion that penetration of each victim's sex organ by defendant's sex organ did occur. Lindsey v. State, (1971) 257 Ind. 78, 272 N.E.2d 458; Davis v. State, (1972) 258 Ind. 533, 282 N.E.2d 805; Omans v. State, (1980) Ind.App., 412 N.E.2d 305. The evidence is sufficient to sustain each count of rape.

Defendant also contends that there was insufficient evidence to sustain his convictions for robbery in the second and third cases. He alleges that there was no force or threat of force used in obtaining the money from these victims. The record shows that one victim gave some money to defendant when he asked her for it and the other victim dumped the contents of her purse on the front seat of the automobile at defendant's direction and defendant took the money at that time. We find no merit in defendant's allegations here. Clearly, both victims had been threatened with a knife and told not to scream or they would be hurt at the beginning of the attacks. The knife was used to force each victim to drive around and to submit to the sexual assaults. The defendant was still holding the knife or had it within easy reach when he demanded the money from each victim. Under our standard of review for sufficiency of the evidence, as cited above, this was clearly sufficient evidence from which the jury could infer that defendant used the threat of force in demanding money from each victim.

II.

Defendant next contends that his conviction for...

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