Aron v. State

• Citation: 271 Ind. 412,393 N.E.2d 157
• Decision Date: 24 August 1979
• Docket Number: No. 379S64,379S64
• Parties: Frederick L. ARON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 157

393 N.E.2d 157

271 Ind. 412

Frederick L. ARON, Appellant, v. STATE of Indiana, Appellee.

No. 379S64.

Supreme Court of Indiana.

Aug. 24, 1979.

Charles F. Leonard, Deputy Public Defender, Ft. Wayne, for appellant.

Theo. L. Sendak, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of rape by an Allen County jury and was sentenced to a term of 30 years.

The record reveals: On January 8, 1978, at 4:00 p. m., the fourteen-year-old victim left her home to go to work at Link's Skating Rink. As she walked along Holton Street, she was grabbed by the neck from behind. The assailant, later identified as appellant Frederick Aron, told her to "shut up and you won't get hurt." Threatening her with a knife, appellant led the victim through a yard, down an alley, and finally into an abandoned house at 1416 Hurd Street. Once inside, appellant demanded and was given the victim's money. He then took her to an upstairs room and ordered her to remove her clothing. When she refused, he struck her in the face. Appellant and the victim struggled over the knife, after which appellant threw her to the floor and began choking her with his scarf. The victim lost consciousness. When she regained consciousness, appellant tied her arms and legs, and then forcibly raped her. The victim scratched appellant's neck during the struggle and made an unsuccessful attempt to grab the knife. Following the sexual assault, appellant told the victim not to tell anyone about the incident since "they ain't going to believe you anyway."

Appellant claims the trial court erred in refusing to grant his motion for continuance. Appellant had alleged in the motion that the State had not provided him with the series of photographs used by the police and victim in identifying appellant. The trial court's ruling on a motion for continuance lies within its sound discretion and will be reversed only where a manifest abuse of discretion is shown. TR. 53.4; Works v. State (1977) 266 Ind. 250, 362 N.E.2d 144. Here, appellant received the photos the day before trial. His motion to suppress the out-of-court identification was fully litigated in a hearing prior to the trial. Further, during cross-examination of the victim at trial, defense counsel interrogated the victim regarding the photographic display and eventually introduced the photos in evidence. We can discern no prejudice to appellant from the denial of his motion for continuance. The trial court therefore did not abuse its discretion in overruling the motion.

Appellant next asserts that the victim should not have been permitted to testify as to her out-of-court and in-court identification of appellant. An unduly suggestive lineup of photographic display which creates a substantial likelihood of misidentification is not admissible in evidence. Neil v. Biggers (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Fields v. State (1975) 263 Ind. 550, 333 N.E.2d 742. A review of the evidence adduced at the hearing on appellant's motion to suppress reveals that this photographic identification was not unduly suggestive. The investigating police officer testified that she initially showed the victim a stack of photographs from which the victim was unable to point out her assailant. Later, following a detailed description of the attacker by the victim, the officer selected seven photos of young men with features and physical builds similar to the description. The officer did not tell the victim that her attacker was among the seven. She simply told the victim to point out the one if she saw him. The victim corroborated this version in her testimony at the...