Dewey v. State, No. 975S234

Docket NºNo. 975S234
Citation264 Ind. 403, 345 N.E.2d 842
Case DateApril 21, 1976

Page 842

345 N.E.2d 842
264 Ind. 403
Samuel DEWEY, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 975S234.
Supreme Court of Indiana.
April 21, 1976.

[264 Ind. 405]

Page 844

Timothy J. Burns, Kenneth T. Roberts, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted upon two counts each of kidnapping, armed rape and armed sodomy. He was sentenced to two concurrent life terms of imprisonment upon the kidnapping counts and to four consecutive fifteen year terms upon the armed counts. His appeal raises five issues.

ISSUES

(1) Sufficiency of the evidence as to each verdict.

(2) Correctness of the trial court's denial of a defense motion to require the State to elect between the armed counts and the simple counts of rape and sodomy with which the defendant had also been charged.

(3) Correctness of the trial court's denial of the defendant's motion to suppress the in-court identifications of him.

(4) Correctness of the trial court's denial of the defendant's motion to suppress evidence of articles taken from him at the time of his arrest.

(5) Correctness of the defendant's motion for a mistrial, premised upon misconduct of the trial judge.

ISSUE I.

On appeal, we do not reweigh the evidence or the credibility of witnesses. If the evidence supportive of the verdict, and reasonable inferences to be drawn therefrom, would permit a reasonable trier of fact to infer the existence of each element of the crime beyond a reasonable doubt, the verdict will not be disturbed.

Page 845

Dozier v. State, (1976) Ind., 343 N.E.2d 783; Brikla v. State, [264 Ind. 406] (1975) Ind., 323 N.E.2d 645; Foster v. State, (1974) Ind., 320 N.E.2d 745; Jethroe v. State, (1974) Ind.,319 N.E.2d 133; Kimble v. State, (1974) Ind., 319 N.E.2d 140.

The evidence herein, viewed most favorably to the State, reveals the following:

The victims of the crime were a Mrs. Davis and a Miss Ratcliff. The crimes were committed between 10:00 p.m. and midnight. Earlier in the day Mrs. Davis had observed the defendant, who was then visiting a neighbor, playing ball with her young son. Mrs. Davis left her home in the early evening and left her son in the care of Miss Ratcliff. After her return and while Miss Ratcliff was still present, the defendant came to the door and asked permission to use the telephone, which was granted.

After gaining entry into the house, the defendant presented a gun, ordered both women out the back door, marched them to his automobile and compelled them to enter, threatening to shoot them if they resisted. He then drove the women to a rural area and while threatening them with the gun and with a knife, proceeded to commit acts of sodomy and sexual intercourse upon each of them.

It is the defendant's contention upon the insufficiency of evidence assignment, that there was no evidence of the force requisite to the kidnapping and rape charges, inasmuch as he was admitted to the Davis home by consent and there was no evidence that the acts of sexual intercourse were committed forcibly against the will of the victims. The reasonable fear of the use of force or violence, when combined with an asportation, is sufficient to sustain a charge of kidnapping. Coleman v. State, (1975) Ind., 339 N.E.2d 51; Johnson v. State, (1974) Ind., 319 N.E.2d 126; Vacendak v. State, (1976) Ind., 340 N.E.2d 352. The crime of rape is committed when the sexual intercourse is committed forcibly against the will of a female. It is not required that the force applied [264 Ind. 407] be brute strength but may also be accomplished by fear produced by threats. Ransbottom v. State, (1895) 144 Ind. 250, 43 N.E. 218; Beard v. State, (1975) Ind., 323 N.E.2d 216. The evidence was sufficient.

ISSUE II.

In addition to the four armed counts upon which guilty verdicts were returned, the defendant was also charged with two counts of rape and two counts of sodomy. He objected to the reading of the indictments to the jury upon the grounds that the duplicate nature of the charges would be...

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35 practice notes
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...placed in a position of grave peril by the court's comment. Faught v. State, (1979) Ind., 390 N.E.2d 1011, 1015; Dewey v. State, (1976) 264 Ind. 403, 409-10, 345 N.E.2d 842, 847. We find no error on this [274 Ind. 434] VIII. Finally, appellant challenges the sufficiency of the evidence. In ......
  • Williams v. State, No. 1278S281
    • United States
    • October 2, 1979
    ...v. State, (1977) 265 Ind. 700, 359 N.E.2d 532, it is not always unnecessarily suggestive, Zion v. State, supra; Dewey v. State, (1976) 264 Ind. 403, 345 N.E.2d 842. The value of the witness's observing the suspect while the image of the offender [271 Ind. 661] is fresh in his mind has been ......
  • Forrester v. State, No. 580S146
    • United States
    • Indiana Supreme Court of Indiana
    • October 7, 1982
    ...the crime and provided Officer Davidson probable cause to arrest Defendant at the Exchange on April 10, 1979. See Dewey v. State, (1976) 264 Ind. 403, 409, 345 N.E.2d 842, 846; Throop v. State, (1970) 254 Ind. 342, 344, 259 N.E.2d 875, 876. We find no reversible error in the admission of De......
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1978
    ...U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454; Pointer v. United States (1894), 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Dewey v. State (1976), 264 Ind. 403, 345 N.E.2d 842; Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. This rule of discretion......
  • Request a trial to view additional results
35 cases
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...placed in a position of grave peril by the court's comment. Faught v. State, (1979) Ind., 390 N.E.2d 1011, 1015; Dewey v. State, (1976) 264 Ind. 403, 409-10, 345 N.E.2d 842, 847. We find no error on this [274 Ind. 434] VIII. Finally, appellant challenges the sufficiency of the evidence. In ......
  • Williams v. State, No. 1278S281
    • United States
    • October 2, 1979
    ...v. State, (1977) 265 Ind. 700, 359 N.E.2d 532, it is not always unnecessarily suggestive, Zion v. State, supra; Dewey v. State, (1976) 264 Ind. 403, 345 N.E.2d 842. The value of the witness's observing the suspect while the image of the offender [271 Ind. 661] is fresh in his mind has been ......
  • Forrester v. State, No. 580S146
    • United States
    • Indiana Supreme Court of Indiana
    • October 7, 1982
    ...the crime and provided Officer Davidson probable cause to arrest Defendant at the Exchange on April 10, 1979. See Dewey v. State, (1976) 264 Ind. 403, 409, 345 N.E.2d 842, 846; Throop v. State, (1970) 254 Ind. 342, 344, 259 N.E.2d 875, 876. We find no reversible error in the admission of De......
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1978
    ...U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454; Pointer v. United States (1894), 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Dewey v. State (1976), 264 Ind. 403, 345 N.E.2d 842; Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. This rule of discretion......
  • Request a trial to view additional results

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