Clark v. State, No. 781S180
| Docket Nº | No. 781S180 |
| Citation | 447 N.E.2d 1076 |
| Case Date | April 22, 1983 |
| Court | Supreme Court of Indiana |
Page 1076
v.
STATE of Indiana, Appellee (Plaintiff Below).
Page 1077
Peter D. Shaw, Smith, Shaw & Wilhoite, Connersville, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
PRENTICE, Justice.
Defendant (Appellant) was convicted, after trial by Jury, of Attempted Rape, Ind.Code Sec. 35-41-5-1; Sec. 35-42-4-1 (Burns 1979), Battery, Ind.Code Sec. 35-42-2-1(1) (Burns 1979), and Intimidation, Ind.Code Sec. 35-45-2-1 (Burns 1979), and sentenced to a total of thirty (30) years imprisonment. This direct appeal presents the following issues:
(1) Whether the circumstantial evidence of the identity of the assailant was sufficient to sustain the convictions.
(2) Whether the trial court erred in admitting into evidence two items of men's underwear (a T-shirt and a pair of shorts) over Defendant's objection that there had been no evidence presented connecting the exhibits to him.
(3) Whether the trial court erred in permitting the prosecutrix to testify over Defendant's pre-trial motion to suppress and in-trial objection, both premised upon a claim of witness incompetence occasioned by her having been previously interrogated by the State while in a state of hypnosis.
The evidence and inferences permissibly drawn therefrom, when viewed most favorably to the verdict, revealed that in the early evening of October 11, 1979, the defendant was drinking beer and visiting with a friend in a Connersville tavern, when Terry Isaacs, a co-defendant, arrived in the company of his friend, Steve Potts. The group visited and drank beer for approximately an hour and left in the defendant's two-seated truck. They took Defendant's friend to his motel, where he remained, and the three then purchased some whisky and soft drinks.
The three continued with their drinking and decided to seek some female company.
Page 1078
Potts, a married man, volunteered to call upon the prosecutrix, his ex-girlfriend, and that perhaps she would have some friends. They proceeded to the home of the prosecutrix, Kathy, and she joined them at about 9:30 p.m. but produced no other girls.They went to a tavern, and the defendant and Isaacs entered while Potts and Kathy remained in the truck, and Potts asked her if she would "go to bed" with the defendant and Isaacs, to which she answered, "No." Potts then entered the tavern to get the other two and returned in about fifteen minutes and said that they were playing a game of pool and wanted to finish.
Potts and Kathy then engaged in an act of sexual intercourse in the front seat of the truck and then entered the tavern. While the four were in the tavern, Isaacs asked Kathy if she would "go to bed" with him and she said, "No."
The party then returned to the truck and drove into the country. Isaacs and Defendant asked Kathy again to "go to bed" with them, and she refused. Clark was driving, and Isaacs told him to drive faster. Defendant then drove the truck in a reckless manner, at Isaacs' urging, and after further unsuccessful attempts to persuade Kathy to have sexual intercourse with them either the defendant or Isaacs told her to "Put out or get out." Kathy said that she would get out. The truck was stopped. Isaacs opened the door and Kathy walked away in the direction opposite to the direction they had been traveling.
Defendant turned the truck around, and the three followed and passed Kathy. They stopped a short distance beyond her and parked in a cornfield. Defendant and Isaacs got out of the truck, ostensibly to urinate, and disappeared. Potts got out of the truck, waited briefly and then started walking towards town. After he had walked a short distance, he heard the sound of breaking glass and heard a scream and a faint voice say, "Where's Steve?" Someone else said, "Steve Who?", and the voice replied, "Steve Potts."
Shortly after Kathy was overtaken and passed by the defendant's truck, she met two men walking in the opposite direction. After they passed, she was struck in the face. She was rendered semi-conscious but heard someone say "Go to the barn." Two men got her inside a nearby barn and told her to take off her pants. She refused and was struck in the face again, and she fell to the ground. One of the men, then removed her pants and raped her. The other then attempted to rape her but was unable to penetrate her, whereupon he compelled her to perform fellatio upon him.
There was a horse in the barn, and after the foregoing described acts had been completed, one of the men held it and kept it quiet, and the other held her and forced her to perform fellatio upon it. During the episode, Kathy bled profusely from the wound she had received when she was struck in the face.
The men departed, leaving Kathy in the barn. When she was sure that they had gone, she made her way to a farmhouse and was taken home by the couple who resided there.
The police investigation conducted the following day produced broken glass from a beer bottle and a pool of blood nearby, both in the roadway near the barn. Kathy's spectacles, with a broken lens, and one of her earrings were also found there. Inside the barn, Kathy's underpants and a blood soaked mat were found.
* * *
* * *
ISSUE I
Defendant's challenge to the sufficiency of the evidence is dual. With respect to all charges, he cites his assertedly unrefuted alibi and the failure of the prosecutrix to make an unqualified identification of him, as one of her assailants, from the witness stand. Secondly, he asserts that even if the evidence is deemed to be sufficient to sustain a finding that he was one of the assailants, it nevertheless was not sufficient to sustain findings that he used deadly force, so as to render the attempted rape a Class A felony, or that he inflicted serious bodily injury upon the prosecutrix, so as to render the battery a Class C felony, or that he
Page 1079
committed any act which intimidated her into performing fellatio upon the horse.As to Defendant's assertion that the evidence was insufficient to identify him as one of the assailants, he directs our attention to certain circumstances and, although admitting that they are incriminating, contends that they, nevertheless, are insufficient under the "reasonable doubt" standards of Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658, Lottie v. State, (1974) 262 Ind. 124, 311 N.E.2d 800, and Harris v. State, (1974) 258 Ind. 341, 281 N.E.2d 85. Such incriminating...
To continue reading
Request your trial
-
Clark v. Duckworth, Civ. No. S 89-270.
...21, 1980 of attempted rape, battery and intimidation. The convictions were affirmed by the supreme court in Clark v. State (1983), Ind., 447 N.E.2d 1076. On January 23, 1987, Clark filed a petition for post-conviction relief, and the State filed a response. After a hearing, the trial court ......
-
Clark v. Duckworth, No. 89-3497
...that decision to us. We now vacate and remand. I. The facts supporting the jury's conviction of Clark are detailed in Clark v. State, 447 N.E.2d 1076 (Ind.1983). They need not detain us, however, for we are concerned primarily with constitutional errors that occurred at trial. We pause here......
-
Clark v. Duckworth, Civ. No. S 89-270.
...21, 1980 of attempted rape, battery and intimidation. The convictions were affirmed by the supreme court in Clark v. State (1983), Ind., 447 N.E.2d 1076. On January 23, 1987, Clark filed a petition for post-conviction relief, and the State filed a response. After a hearing, the trial court ......
-
Clark v. Duckworth, No. 89-3497
...that decision to us. We now vacate and remand. I. The facts supporting the jury's conviction of Clark are detailed in Clark v. State, 447 N.E.2d 1076 (Ind.1983). They need not detain us, however, for we are concerned primarily with constitutional errors that occurred at trial. We pause here......