Coleman v. State, 884S316

• Decision Date: 27 March 1986
• Docket Number: No. 884S316,884S316
• Citation: 490 N.E.2d 325
• Parties: Otis COLEMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 325

490 N.E.2d 325

Otis COLEMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 884S316.

Supreme Court of Indiana.

March 27, 1986.

Robert Garrett, Public Defender, 2293 North Main, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

This is a direct appeal from convictions entered after a jury trial for rape, a class A felony, Ind.Code Sec. 35-42-4-1, attempted rape, a class A felony, Ind.Code Secs. 35-42-4-1, 35-41-5-1, and two counts of robbery, a class C felony, Ind.Code Sec. 35-42-5-1. Appellant Otis Coleman was also found to be an habitual offender. Ind.Code Sec. 35-50-2-8. The judge imposed concurrent sentences of fifty years (rape), fifty years (attempted rape), and eight years for each robbery conviction. The attempted rape conviction was enhanced by an additional thirty years based on the habitual offender finding.

Appellant raises two issues in this appeal:

1) Whether there was sufficient evidence of threatening the use of deadly force, one element of proof in a rape trial, and

2) Whether the trial court erred in failing to grant a mistrial based upon use of the term "mug shot" by a state witness.

These are the facts which tend to support the trial court's judgment. On the evening of October 27, 1983, D.S. and F.J. were walking to the latter's home, where the girls planned to spend the night. While they were en route, appellant approached the girls from behind and attempted to grab F.J.'s purse. When she resisted, Coleman demanded money, told the girls he had a gun, and gestured with his hand inside his jacket pocket to indicate the presence of a gun. Neither victim saw a gun. Coleman told the girls not to try anything or he would kill them.

Coleman directed the girls into the back yard of an abandoned, boarded-up house, where he instructed them to disrobe. D.S. testified that they did so "because he threatened to kill us." Appellant also demanded that they remove their jewelry. The girls were further instructed to lie on the ground and engage in oral sex with each other while appellant examined their possessions for valuables. Then, lowering his pants, appellant asked the girls, "which one of you should I get now?" He knelt on the ground between D.S.'s legs preparing for intercourse until she told him that she had a venereal disease. Apparently losing interest, appellant told her if she tried anything, he would kill her. He then approached F.J., who submitted to sexual intercourse with appellant because he had warned her that he was armed and would kill her. Appellant took the girls' jewelry and fled.

The victims returned to D.S.'s home and the police were summoned. The girls had observed their attacker by the light of a nearby street light. In addition, both recalled seeing him at Nick's Liquor Store earlier in the summer, but neither knew him by name. A description was given to Officer Conner, who advised that F.J. receive a medical examination. The examination revealed an external tear of the vagina, an injury not uncommon in a rape. Later tests confirmed the presence of blood and semen in the vagina.

The following afternoon, the girls went to the police station to view a photographic array. Each independently identified appellant Coleman as the man who had attacked her the night before.

I. Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence on the element of threatening the use of deadly force to sustain a conviction for rape. In reviewing the sufficiency of the evidence, we do not weigh the evidence nor resolve questions of credibility, but look to the evidence and reasonable inferences therefrom which support the verdict. The conviction will be affirmed if there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Ramos v. State (1984), Ind., 467 N.E.2d 717, 718.

The evidence showed that appellant told the girls that he had a gun, gestured with his hand inside his jacket pocket to indicate the presence of a gun, and threatened to kill the girls if they did not comply with his demands. F.J. submitted to sexual intercourse because she was in fear for her life. In his brief, appellant concedes that the testimony shows that Coleman threatened to kill the girls.

Appellant alleges that threats to kill the victims coupled with the victims' subjective belief that the defendant was armed is insufficient to show a threat to use deadly force. However, "a weapon need not be displayed in order to establish the threat of deadly force." Zollatz v. State (1980), 274 Ind. 550, 554, 412 N.E.2d 1200, 1202. Further, this Court has held that the threat that the defendant was armed and would kill the victim was sufficient to support a conviction of rape by threatening the use of deadly force. Ross v. State (1982), Ind., 429 N.E.2d 942; Tillman v. State (1980), 274 Ind. 39, 408 N.E.2d 1250. Under the facts of this case, the evidence is sufficient to support a conviction of rape.

II. Denial of Mistrial

During the prosecution's direct examination of Sergeant Murray, a twenty-year veteran of the police force, the following colloquy occurred:

Q. Prior to that, were each shown photographs in an effort to identify who was responsible for what they said happened to them?

A. Yes, they were.

Q. How was this done?

A. The way our system is set up with police photographs, we have them under heighth (sic), race, age, and after having the description given to me, I pulled the mugshots--I'm sorry, the police photographs out and gave each girl a group of photographs.

The defendant moved for a mistrial, which was denied. The...