Allbritten v. State, 773S141

Decision Date28 October 1974
Docket NumberNo. 773S141,773S141
Citation317 N.E.2d 854,262 Ind. 452
PartiesPeter Duane ALLBRITTEN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Harriette Bailey Conn, Public Defender, Mark McNeely, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

Appellant was convicted of the kidnapping and rape of a four and a half year old girl.He was granted leave to file this Belated Appeal.Rule P.C. 2(2).His first contention is that as to the charge of rape the evidence was insufficient to prove the necessary element of penetration.Ritchie v. State, (1963)243 Ind. 614, 189 N.E.2d 575;Ketcham v. State, (1959)240 Ind. 107, 162 N.E.2d 247.The fact-finder may infer penetration from circumstantial evidence such as the physical condition of the victim soon after the incident.Weaver v. State, (1963)243 Ind. 560, 187 N.E.2d 485.And of course, this court will not weigh the evidence nor judge the credibility of witnesses.Instead, we will look to that evidence most favorable to the State and the reasonable inferences to be drawn therefrom.The judgment of the fact-finder will be affirmed if, from that point of view, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt.Blackburn v. State, (1973) Ind., 291 N.E.2d 686, and cases cited therein.Furthermore, it is well-settled that in proving rape proof of the slightest degree of penetration is sufficient.Mooney v. State, (1959)246 Ind. 570, 207 N.E.2d 623;Taylor v. State, (1887)111 Ind. 279, 12 N.E. 400.Thus, it is sufficient here to recite that a post-abduction medical examination of the victim revealed 'considerable injury to the vulva and outer portion of the vagina.'From this evidence alone it was not unreasonable for the jury to infer that penetration had occurred.

Appellant's other contention is that his Sixth Amendment right of confrontation was denied in three different instances; namely, when a police officer testified that a mug shot of the Appellant had been identified by a victim of an earlier rape; when a police officer testified that an anonymous phone call had focused the police investigation on Appellant; lastly, the right to confrontation is said to have been violated because the victim did not testify.We need not reach the merits of the first two alleged instances because they could not be the source of reversible error.Identity was not an issue in this case.Appellant took the stand and narrated the abduction of and sexual assault on the child.Procedures which led to his apprehension were not at issue.Moreover, the fact that a victim of a prior rape had identified Appellant's picture was not impermissibly prejudicial because in crimes of this nature evidence of similar prior crimes is admissible.State v. Robbins, (1943)221 Ind. 125, 46 N.E.2d 691;Borolos v. State, (1924)194 Ind. 469, 143 N.E. 360;State v. Markins, (1884)95 Ind. 464, 48 Am.Rep. 733.In any event, the testimony about...

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24 cases
  • Long v. State
    • United States
    • Indiana Appellate Court
    • October 20, 1975
    ...845. In examining the evidence presented, this Court will consider inferences drawn therefrom reasonable if there was substantial evidence of probative value presented. Birkla v. State (1975), Ind., 323 N.E.2d 645; Allbritten v. State (1974), Ind., 317 N.E.2d 854; Releford v. State (1975), Ind.App., 325 N.E.2d The elements of second degree burglary are: (1) breaking (2) and entering (3) into a building or structure other than a dwelling house or place of human habitation...
  • Gooch v. State
    • United States
    • Indiana Appellate Court
    • July 28, 1975
    ...examining the evidence presented, this Court will consider inferences drawn therefrom reasonable if there was substantial evidence of probative value presented. Birkla v. State (1975), Ind., 323 N.E.2d 645; Allbritten v. State (1974), Ind., 317 N.E.2d 854; Releford v. State (1975), Ind.App., 325 N.E.2d 214. The elements of First Degree Burglary are breaking and entering into a dwelling house or a place of human habitation with the intent to commit a felony therein....
  • Jackson v. State
    • United States
    • Mississippi Supreme Court
    • March 28, 1984
    ...the victim no bleeding but noted by the examining physician were abrasions to Labia Minora and surrounding tissue. The court held this proved there was penetration to some extent sufficient to prove rape. Cities 75 C.J.S. Rape Sec. 10b. And Albritton v. State, 262 Ind. 452, 317 N.E.2d 854 (1974), where, in affirming a rape conviction, the court noted that medical examination of victim revealed, "considerable injury to the vulva and outer portion of the vagina", and from this evidence...
  • State v. Bailey
    • United States
    • Kansas Supreme Court
    • December 10, 1977
    ...trial of a criminal case imposes no obligation on the government to call any specific persons as witnesses. . . ." (p. 613.) This principle has been followed in numerous cases. See in particular Allbritten v. State, 262 Ind. 452, 317 N.E.2d 854 (1974); Flatt v. Commonwealth, 468 S.W.2d 793 (Ky.1971); Gaertner v. State, supra; People v. Jolliff, 31 Ill.2d 462, 202 N.E.2d 506 (1964); and People v. Fisher, 208 Cal.App.2d 78, 25 Cal.Rptr....
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