Sallee v. State, 55A04-0202-CR-67.
| Citation | 777 N.E.2d 1204 |
| Decision Date | 08 November 2002 |
| Docket Number | No. 55A04-0202-CR-67.,55A04-0202-CR-67. |
| Parties | Edward Graylin SALLEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
R. Stephen Donovan, Mooresville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Nicole Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Edward Sallee was convicted following a jury trial of criminal deviate conduct and rape, both Class A felonies, sexual battery, a Class C felony, and criminal confinement, a Class D felony. He was sentenced to fifty years for the criminal deviate conduct conviction, fifty years for the rape conviction, and three years for the criminal confinement conviction, all to be served consecutively, for a total sentence of 103 years.1 He now appeals his convictions and sentence. We affirm.
Sallee raises four issues for our review, which we restate as follows:
1. Whether the evidence is sufficient to support his convictions;
2. Whether the trial court properly excluded Sallee's proffered evidence regarding the victim's prior sexual history;
The facts most favorable to the jury's verdicts reveal that in the late morning of April 9, 2001, C.T. was at a gas station in Martinsville where she was approached by Sallee and wife, Sherry.2 Sallee told C.T. that his car had broken down and offered her twenty dollars if she would give him and his wife a ride. After C.T. and an acquaintance exchanged hellos, C.T. agreed to give Sallee and Sherry a ride for no payment.
Sallee got into the back seat of C.T.'s car. Sherry rode in the passenger seat. C.T. drove until her passengers told her to pull over at a gravel road because they could walk from there. C.T. put the car in neutral, and Sallee grabbed her from behind and pulled her into the back seat with Sherry's help. C.T. screamed and kicked and managed to hit the car horn with her foot before Sallee was able to pull her into the back seat with him. Sherry got into the driver's seat, rolled up the windows, turned on the air conditioning and drove away. C.T. huddled in the back seat and told her passengers to take her money or her car but to please drop her off. Sherry told C.T. to be quiet or she would hurt her. C.T. asked why they were doing this, and both Sallee and Sherry told her to be quiet or they would kill her.
Concerned that C.T. would be able to see where they were going, Sallee put a t-shirt over C.T.'s head and fastened it with duct tape around her neck. Both Sallee and Sherry told C.T. that if she did not do everything right, they would kill her. At some point, C.T. realized that she could see through the t-shirt. She observed that they were driving through a wooded area and that they stopped at a black and white house surrounded by trees. Sallee and Sherry took C.T. into the house and sat her on a bed. Sherry left to park the car and Sallee removed C.T.'s clothes. C.T. asked if they were going to rape her, and Sallee replied yes. He then put his mouth and tongue on her vagina and performed oral sex. C.T. did not try to run or otherwise fight because she was frightened, but she did cry, "No." When Sherry returned to the house, they removed the t-shirt from C.T.'s head and covered her eyes with duct tape.
In the approximately four hours that C.T. was with Sallee and Sherry, they forced her to perform or submit to various sexual acts. She was forced to perform oral sex on both Sallee and Sherry; both Sallee and Sherry performed oral sex on C.T., Sallee penetrated C.T.'s vagina with his penis; and Sherry used a sexual device to penetrate C.T.'s vagina. Sallee ejaculated twice; once on C.T.'s stomach and once on her face. In addition to the sexual acts, Sallee and Sherry forced C.T. to smoke and snort what they called "crank," which made C.T. feel sick to her stomach. C.T. complied with all of their requests because she was afraid for her life; numerous times, Sallee and Sherry told her that if she saw anything or if she told anyone, they would kill her.
Sallee and Sherry gave C.T. her clothes back and when she was dressed, put her in the back seat of her car. They dropped her off at the side of the road and told her that her car would be in the Wal-Mart parking lot. They then drove away. C.T. pulled the duct tape off her eyes and began to walk toward town. C.T.'s roommate Adrian Bambery drove by and C.T. flagged her down. When C.T. told Adrian that she had been raped, Adrian took her to the police department to speak with police and then to the hospital, where doctors performed a physical examination.
Sallee and Sherry were arrested approximately one month after this incident. Sallee was charged with rape as a Class A felony, criminal deviate conduct as a Class A felony, sexual battery, a Class C felony, and criminal confinement, a Class D felony. Following a jury trial, Sallee was convicted of each of the charges and sentenced to a total of 103 years. He now appeals. Additional facts will be provided as necessary.
Sallee first challenges the sufficiency of the evidence to support his convictions. He contends that the only evidence that the sexual activity was not consensual was C.T.'s own testimony and he further contends that is insufficient to find him guilty beyond a reasonable doubt.
The standard for reviewing sufficiency of the evidence claims is well settled. We do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755 N.E.2d 173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.
Sallee contends that C.T.'s testimony, as the only evidence of sexual activity by force, is "incredibly dubious" when compared to the physical evidence or lack thereof. The "incredible dubiosity" doctrine applies where a sole witness presents inherently contradictory testimony that is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the defendant's guilt. Thompson v. State, 765 N.E.2d 1273, 1274 (Ind. 2002).
In support of his argument, Sallee cites to the DNA evidence. Sallee could not be excluded as a contributor to DNA on the shirt which was collected from C.T. during the sexual assault examination at the hospital. However, no DNA consistent with Sallee's was found on C.T.'s underwear, bra, socks, or in the vaginal or external swabs. Sallee contends that the only possible explanation for the lack of DNA evidence is that C.T. went home, showered, and changed clothes before she went to the hospital, which C.T. testified that she did not do, thus straining her credibility. Nonetheless, Sallee himself admitted at trial that he had sexual relations with C.T. The fact that sexual activity occurred or that it occurred between C.T. and Sallee was not at issue, and therefore the DNA evidence was not relevant to the determination of the ultimate issue: whether the sexual activity was consensual or compelled by force. C.T.'s testimony was not inherently contradictory; she consistently testified that she went straight to the police station and then to the hospital after her roommate picked her up. Any inconsistencies between C.T.'s testimony and the physical evidence and the resultant effect upon her credibility were for the jury to reconcile.
Sallee also points to the testimony of the doctor who performed the physical examination of C.T. at the hospital that he observed no physical injuries and no dried semen on her body. He characterizes the doctor's testimony as asserting that he "saw nothing from his examination that would indicate a rape occurred or corroborate her story." Appellant's Brief at 7. The doctor testified that C.T. had fluid in the vaginal vault and redness at the vaginal opening, both of which could indicate recent sexual activity, but that he observed nothing out of the ordinary as far as abrasions or scrapes on her extremities. However, he also stated that:
[w]hen I examine a patient, there's no way that I can say ... a rape definitely occurred or a rape did not definitely occur in somebody that's ... a sexually active person.... Sometimes you kind of have to rely on ... on just what the patient tells me and the patient's demeanor and how the patient is acting.... In [C.T.'s] case I mean, again she was very upset. Her heart rate was rapid. She was obviously distressed. I don't have any reason to disbelieve her but to just say 100% for sure I know a rape occurred, I ... I can't do that.
Tr. at 526-27. Thus, the doctor's testimony supports the fact that sexual activity had occurred, a fact upon which both C.T. and Sallee agree. His testimony does not conclusively support either side's version of how the sexual activity occurred. Any conflict between the doctor's testimony and C.T.'s is an issue of credibility for the jury to decide.
Finally, Sallee points to testimony from both C.T. and himself that C.T. was wearing a t-shirt with the sleeves cut off during the incident. However, the shirt that was collected from her during the sexual assault examination and that was introduced into evidence at trial did not match that description. Again, C.T. consistently testified that she was wearing a tank top during the incident. That the physical evidence contradicts this testimony does not make her testimony "incredibly dubious"; rather, it creates an issue of credibility for the jury to decide.
On the whole, the evidence is sufficient to support the convictions....
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