Chew v. State, No. 584S183

Docket NºNo. 584S183
Citation486 N.E.2d 516
Case DateDecember 19, 1985
CourtSupreme Court of Indiana

Page 516

486 N.E.2d 516
Charles J. CHEW, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 584S183.
Supreme Court of Indiana.
Dec. 19, 1985.

Page 517

Daniel L. Bella, Appellate Public Defender's Office, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with rape, a class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1979 Repl.), and criminal deviate conduct, a class A felony, Ind.Code Sec. 35-42-4-2 (Burns 1979 Repl.). Following a jury trial he was convicted of the lesser-included offenses of rape and criminal deviate conduct as class B felonies. The trial court sentenced him to concurrent terms of twelve (12) years imprisonment. This direct appeal contends that the evidence was not sufficient to sustain the convictions.

We affirm the conviction for criminal deviate conduct but reverse the conviction for rape.

We begin with our familiar standard of review:

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (Citations omitted.)

Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

The evidence most favorable to the State demonstrated that Defendant forced the victim into his car at knifepoint and then forced her to commit various sexual acts.

Defendant first contends that the evidence did not demonstrate that the victim acted under compulsion or threat of force. He cites certain evidence in the record which, he contends, demonstrates that the victim consented to his conduct. We disagree.

Defendant by this contention merely invites us to reweigh the evidence. A conviction for rape or criminal deviate conduct may rest upon only the testimony of the victim. See, Bowen v. State (1985), Ind., 478 N.E.2d 44, 46-47; Shippen v. State (1985), Ind., 477 N.E.2d 903, 904 and authorities cited. Moreover, this Court has very recently re-emphasized that the question of consent is an issue to be determined by the trier-of-fact dependent upon the particular circumstances, and that a victim of sexual assault need not physically resist when resistance is prevented by threats and fear of injury. Woodson v. State (1985), Ind., 483 N.E.2d 62, 64. This record includes substantial evidence that the victim did not consent to Defendant's conduct.

Regarding the rape conviction, Defendant contends that the record does not include substantial evidence of probative value of the vaginal penetration necessary to effect a rape. We agree and reverse that

Page 518

conviction, which will be of small comfort to Defendant, inasmuch as he was sentenced to concurrent terms upon this charge and the charge of criminal deviate conduct.

Ind.Code Sec. 35-42-4-1(a) (Burns 1979 Repl., retained in current code with minor amendments) punished anyone who had sexual intercourse with a member of the opposite sex who was compelled by force or the imminent threat of force. Ind.Code Sec. 35-41-1-2 (Burns 1979 Repl., now recodified at Ind.Code Sec. 35-41-1-26 [Burns 1985 Repl.] defined "sexual intercourse" as "an act that includes any penetration of the female sex organ by the male sex organ." Thus to prove the crime of rape the State was required to establish that the victim suffered sexual intercourse as defined.

There was evidence that shortly after the criminal episode transpired, Defendant drove his automobile, in which the acts...

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6 practice notes
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...Contrary to defendant's argument, the quantity of probative evidence here distinguishes the present case from Chew v. State (1985), Ind., 486 N.E.2d 516; Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575; Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503; Penn v. State (1957), 237 In......
  • Crabtree v. State, No. 33A01-8901-CR-00023
    • United States
    • Indiana Court of Appeals of Indiana
    • December 7, 1989
    ...Harding v. State (1984), Ind., 457 N.E.2d 1098, cert. denied, 475 U.S. 1024, 106 S.Ct. 1218, 89 L.Ed.2d 329; Chew v. State (1985), Ind., 486 N.E.2d 516 and Lambert v. State (1987), Ind., 516 N.E.2d 16, modified, 534 N.E.2d 235. The premise of Crabtree's argument is that the State must show ......
  • Lambert v. State, No. 1285S520
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1987
    ...274 Ind. 39, 408 N.E.2d 1250. Defendant claims that there was no evidence that penetration occurred. In Chew v. State (1985), Ind., 486 N.E.2d 516, we held insufficient a victim's testimony that the defendant "made love to me from the back" where the record showed that the victim had ample ......
  • STATE EX REL. COUNSEL FOR DISC. v. Mills, No. S-02-1085.
    • United States
    • Supreme Court of Nebraska
    • December 5, 2003
    ...the motivating factors behind conduct of this nature, but it is certain that this Court cannot allow its reoccurrence. Matter of Geron, 486 N.E.2d at 516. Finally, in In the Matter of Gross, 435 Mass. 445, 759 N.E.2d 288 (2001), respondent Frank Gross was retained to represent a client char......
  • Request a trial to view additional results
6 cases
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...Contrary to defendant's argument, the quantity of probative evidence here distinguishes the present case from Chew v. State (1985), Ind., 486 N.E.2d 516; Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575; Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503; Penn v. State (1957), 237 In......
  • Crabtree v. State, No. 33A01-8901-CR-00023
    • United States
    • Indiana Court of Appeals of Indiana
    • December 7, 1989
    ...Harding v. State (1984), Ind., 457 N.E.2d 1098, cert. denied, 475 U.S. 1024, 106 S.Ct. 1218, 89 L.Ed.2d 329; Chew v. State (1985), Ind., 486 N.E.2d 516 and Lambert v. State (1987), Ind., 516 N.E.2d 16, modified, 534 N.E.2d 235. The premise of Crabtree's argument is that the State must show ......
  • Lambert v. State, No. 1285S520
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1987
    ...274 Ind. 39, 408 N.E.2d 1250. Defendant claims that there was no evidence that penetration occurred. In Chew v. State (1985), Ind., 486 N.E.2d 516, we held insufficient a victim's testimony that the defendant "made love to me from the back" where the record showed that the victim ......
  • STATE EX REL. COUNSEL FOR DISC. v. Mills, No. S-02-1085.
    • United States
    • Supreme Court of Nebraska
    • December 5, 2003
    ...the motivating factors behind conduct of this nature, but it is certain that this Court cannot allow its reoccurrence. Matter of Geron, 486 N.E.2d at 516. Finally, in In the Matter of Gross, 435 Mass. 445, 759 N.E.2d 288 (2001), respondent Frank Gross was retained to represent a client char......
  • Request a trial to view additional results

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