Birch v. State, 3-879A242
| Decision Date | 24 March 1980 |
| Docket Number | No. 3-879A242,3-879A242 |
| Citation | 401 N.E.2d 750 |
| Parties | Leon E. BIRCH, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Donald C. Swanson, Jr., Fort Wayne, for appellant.
Theo. L. Sendak, Atty. Gen., Richard A. Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Leon E. Birch was charged and convicted of the crime of Criminal Deviate Conduct. 1 He was sentenced to the Indiana Department of Correction for a period of 10 years.
On appeal, he raises one issue for our consideration. Was there sufficient evidence to support the finding of the trial court?
We affirm.
The facts relevant to our disposition of the case indicate that the unlawful conduct occurred almost daily during the fall of 1977 when Birch and the victim were incarcerated in a county jail. The victim testified that Birch, his cellmate, made him commit, against his will, oral and anal intercourse during this period.
The information charging Birch with this conduct stated that it occurred "on or about the 6th day of November, 1977." On this date, Birch and the victim were confined in the jail cell with a third prisoner, Baker. Birch argues that the only conduct, involving the two parties in question, about which Baker could testify was the act of manual masturbation. Birch is correct in pointing out that this conduct is not proscribed by IC 1971, 35-42-4-2. In addition, Birch contends that the State failed to prove one of the elements of the offense; that the "other person is compelled by force or imminent threat of force." We disagree.
This Court has consistently held that it will not determine the credibility of the witnesses or weigh the evidence in reviewing a claim that the evidence was insufficient to sustain a conviction. This, we have said, is the function of the trier of fact. Jenkins v. State (1978), Ind., 372 N.E.2d 166. We will review only that evidence most favorable to the judgment and the reasonable inferences drawn therefrom to determine if any reasonable inference may be drawn to support the verdict. Jenkins, supra.
Birch is correct in his contention that Baker is unable to testify as to any conduct proscribed by IC 1971, 35-42-4-2. His argument, however, loses its persuasiveness in view of the law on this point. In Indiana, a conviction for a sex offense may be sustained upon the sole uncorroborated testimony of the victim. Arnett v. State (1973), 155 Ind.App. 82, 291 N.E.2d 376. Specifically, the uncorroborated testimony of the victim is sufficient to sustain a conviction for sodomy. 2 Overton v. State (1974), 161 Ind.App. 650, 317 N.E.2d 467. We conclude that the victim's testimony that he was forced, by Birch, to commit acts of oral and anal intercourse on the date in question is sufficient to support the finding of the trial court.
Birch next admits to having a sexual relationship with the victim, but attempts to convince us that it was of a consensual nature. He argues that there is no evidence that force was used to obtain compliance from the victim. A victim must resist to a degree which would indicate that the performance of the act is not voluntary. Carroll v. State (1975), 263 Ind. 86, 324 N.E.2d 809. The force used to obtain compliance need not be physical or violent; it may be implied from the circumstances. Jenkins, supra. Physical resistance is not required if the victim is in fear of bodily harm. The degree of resistance required is dependent upon the surrounding circumstances, and it is for the trier of fact to determine if the victim acted reasonably in resisting. Jenkins, supra.
The testimony of the victim as well as that of Baker refute the contention that the victim willingly engaged in this conduct. The victim testified:
Baker further testified that:
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Johnson v. United States
...placing the victim in "fear of bodily harm," in which case no physical resistance by the victim is required. See Birch v. State , 401 N.E.2d 750, 751 (Ind. Ct. App. 1980) (stating that a defendant may be convicted of criminal deviate conduct if he either overcomes a victim's resistance or m......
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Scott v. State
...is sufficient to sustain a conviction for criminal deviate conduct. Riddle v. State (1980), Ind., 402 N.E.2d 958, 961; Birch v. State (1980), Ind.App., 401 N.E.2d 750, 751. Scott and Soto direct us to Meadows v. State (1968), 252 Ind. 1, 238 N.E.2d 281, in which a sodomy conviction which re......
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