Clark v. State

Decision Date22 April 1983
Docket NumberNo. 781S180,781S180
Citation447 N.E.2d 1076
PartiesCharles CLARK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

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.

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.

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* * *

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 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 circumstances are acknowledged by him, as follows:

committed any act which intimidated her into performing fellatio upon the horse.

"The circumstantial facts connecting the defendant to this crime are as follows:

"1. He was at the scene of the crime.

"2. The day after the attack he was with a man who was identified as one of the attackers.

"3. When arrested, he was seen coming out of the bathroom zipping up his sweatshirt. He had a T-shirt on when he went in the bathroom. He didn't have one on when he came out.

"4. The defendant had no underwear on when searched at the jail.

"5. The underwear had blood stains on it. They were the same type as the blood of the victim." Defendant's brief at pp. 21, 22. (citations to record omitted)

We agree that no one of such circumstances would suffice, but Defendant has ignored the impact of such circumstances when considered together and with other circumstances disclosed by the evidence but not mentioned by him, the totality of which were quite sufficient to warrant the jury in finding, beyond a reasonable doubt under the standards enunciated by the aforementioned cases and long recognized by this Court, that Isaacs and Defendant were Kathy's assailants, and in disbelieving Defendant's testimony that he had gone to sleep or passed out from too much alcoholic drink immediately after Kathy, Isaacs and Potts got out of the truck and had not awakened until the following morning.

From the evidence hereinbefore recited, a reasonable, if not inescapable, conclusion is that Kathy was assaulted and abused by two of her three companions, the defendant, Isaacs and Potts. She positively identified Isaacs as the one who raped her, having been able to see him, although not the defendant, during and immediately following the incident. Additionally, Isaacs admitted to the rape.

Immediately prior to his arrest on the morning following the criminal incident, Defendant went into the lavatory of a tavern. He was observed to be then wearing a T-shirt, but when he exited, he was wearing none; and when he was searched at the police station, he was wearing neither under shorts nor under shirt. Shortly after Defendant exited from the lavatory, a man's T-shirt and undershorts were found there and were removed to the trash can behind the tavern. Later that morning, the garments were removed from the trash by the police. Tests revealed that they were stained with blood of the same type as Kathy's blood. Although Kathy's blood was of the most common type and although hairs found upon the undergarments were determined to be from Isaacs rather than from the defendant, these circumstances give rise to a logical conclusion that Defendant had attempted to dispose of evidence of the crime.

Potts testified as to his role in the events of the evening, and for the most part, his testimony corroborated much of Kathy's and refuted much of the defendant's.

When Kathy was first attacked, she said "Where is Steve?" and, although she could not see the assailants, she heard one respond, "Steve, who?" and the other answer, "That guy was with us" (sic). This brief exchange evidences that neither of the two was Steve Potts and leads to the ultimate conclusion that the two were Isaacs and the defendant.

Although Kathy was forthright and adamant in her testimony that she did not see the face of the defendant, after she left the truck and, therefore, testified that she could not positively identify him as one of the assailants, the totality of the evidence...

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2 cases
  • Clark v. Duckworth, Civ. No. S 89-270.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 12, 1991
    ...on October 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 t......
  • Clark v. Duckworth, 89-3497
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 13, 1990
    ...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......

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