Allbritten v. State, 773S141

• Decision Date: 28 October 1974
• Docket Number: No. 773S141,773S141
• Citation: 317 N.E.2d 854,262 Ind. 452
• Parties: Peter Duane ALLBRITTEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 854

317 N.E.2d 854

262 Ind. 452

Peter Duane ALLBRITTEN, Appellant, v. STATE of Indiana, Appellee.

No. 773S141.

Supreme Court of Indiana.

Oct. 28, 1974.

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, (1...