Dillon v. State

• Decision Date: 06 May 1983
• Docket Number: No. 1282S491,1282S491
• Citation: 448 N.E.2d 21
• Parties: Stanley DILLON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 21

448 N.E.2d 21

Stanley DILLON, Appellant, v. STATE of Indiana, Appellee.

No. 1282S491.

Supreme Court of Indiana.

May 6, 1983.

Richard D. Gilroy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was charged with Burglary, Attempted Rape and Battery. Later the information was amended seeking enhancement under the habitual offender statute. After trial by jury appellant was found guilty on the first three counts and was also found to be an habitual offender. He was sentenced to twenty years imprisonment on the Burglary conviction, twenty years imprisonment on the Attempted Rape conviction, and six months imprisonment on the Battery conviction. The sentencing entry reflects these sentences are "to run concurrently with an additional thirty (30) years for the crime of habitual offender for a total of 50 years ...." (Emphasis added.) Moreover, the commitment order reads in part, the first three sentences are "to run concurrently with an additional thirty (30) years for the crime of habitual offender ...." (Emphasis added.)

Before treating the issues raised in this appeal it is necessary that we address the error in the sentencing. We have held in many other cases an adjudication that a defendant is an habitual offender under I.C. Sec. 35-50-2-8 [Burns 1979 Repl.] does not result in a conviction of the defendant for "the crime of habitual offender." See, e.g., Short v. State, (1982) Ind., 443 N.E.2d 298; Wilburn v. State, (1982) Ind., 442 N.E.2d 1098; Yager v. State, (1982) Ind., 437 N.E.2d 454. The statute only provides for an enhancement of a sentence imposed upon conviction for an underlying felony. Id. To permit adjudication of a defendant as an habitual offender to be interpreted as a finding of guilty of a separate crime would constitute violation of the Double Jeopardy clause of the United States Constitution. See, Yager, supra.

Consequently, it is necessary to remand this case for a correction of the sentencing of appellant. Upon adjudication of appellant as an habitual offender, either of the two twenty year convictions should be enhanced by thirty years. See, Short, supra. The result is a sentence of fifty years on one felony conviction (twenty years plus a thirty year enhancement), twenty years on the other felony conviction, and six months on the battery conviction, all terms to run concurrently. The case is remanded to the trial court for correction of the error in sentencing.

The facts are these. One M.S., the victim of the attempted rape, testified she resided in a downstairs apartment located at 830 North Broadway in Indianapolis. She testified that on February 1, 1982, at a little after 8:00 P.M. there was a knock on her door. She responded, observing a man she did not recognize who tried to persuade her to let him into the apartment. M.S turned him away. She then went upstairs for a few minutes to talk to her sister and the caretaker of the premises, one Melvin Day. M.S. returned to her apartment, and shortly thereafter the door was suddenly broken open. A man entered, threw her down on the day cot she kept in the front room, jerked off her underpants and unzipped his own pants. At that point M.S. yelled for help. Mr. Day immediately came down the stairs whereupon the assailant went into the hallway and met him, striking him at least once on the side of the head with his fists. Then M.S. ran up the stairs to Day's apartment, with the assailant in pursuit and Day in pursuit of the assailant. Once inside Day's apartment the assailant again attacked M.S. Day armed himself with a hammer. Day finally went back downstairs to look for police as someone, although it is not clear who, had called them. Almost simultaneously the assailant gave up his assault and fled down the stairs to exit the building. Day testified that upon reaching the door to the outside he saw the police had already arrived. He testified the assailant then ran right past him at the front door and almost ran into the arms of a policeman approaching the door.

Both M.S. and Day testified as to the facts as set forth above. However, when asked whether the assailant was present in the courtroom, M.S. first stated only, "[t]hat looks like him over there." The record does not reflect whether this reference was to appellant. Later M.S. admitted she wasn't sure if her assailant was in the courtroom at all. In response to the same question, Day stated the man who committed the acts described was not present in the courtroom.

Two Indianapolis Police officers, Stephen Vogt and Linda Rushline, also testified. They testified they were on duty together on the night of February 1, 1982. They testified they heard a police broadcast at about 8:00 P.M. that night of a disturbance of some sort at 830 North Broadway and that they responded to the call. Both testified that as they approached the building at that address a man they both identified as appellant came running out of the door, jumped off the porch and fell down at Officer Vogt's feet, whereupon he was placed under arrest. Vogt further stated an elderly man, whom he did not name, came running out of the same door. Officer Rushline stated "Mr. Day" came out the same door as had appellant immediately after appellant exited the building. Both officers stated they noticed appellant's trousers were unzipped when he came out of the building.

Appellant first claims the evidence is insufficient to support the convictions. He relies heavily on the fact neither M.S. nor Mr. Day were able to identify him as the perpetrator of the charged offenses.

We do not reweigh the evidence nor judge the credibility of witnesses. Oliver v. State, (1982) Ind., 431 N.E.2d 98.

Appellant's argument is not that credibility of witnesses is an issue in this case but that conceding all the witnesses testified truthfully and accurately, there was still not sufficient evidence of probative value adduced to show that it was he who committed the charged offenses. He contends the evidence shows no more than "mere opportunity" on his part to have committed the crimes, which without more is insufficient evidence to support a conviction. See, Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657. He also contends the evidence shows nothing more than his presence at the scene of a crime, a showing that without more is also insufficient to support a conviction. See, Janigon v. State, (1982) Ind., 429 N.E.2d 959.

We disagree. In reviewing the evidence that supports a conviction we look at all the evidence in support thereof. Rowan v. State, (1982) Ind., 431 N.E.2d 805. In the case at bar the testimony of Officers Vogt and Rushline, when compared to that of M.S. and Day, is such that a reasonable trier of fact could conclude appellant, who was positively identified by the police officers, was the perpetrator of the events described by M.S. and Day. The inability of the victim of the crime to positively identify the defendant as the perpetrator of the crime does not mean the conviction is not supported by sufficient evidence. See, e.g., Jordan v. State, (1982) Ind., 432 N.E.2d 9.

Appellant challenges the conviction for attempted rape as being unsupported by sufficient evidence on the grounds the conduct alleged and proved by the State does not constitute sufficient proof of the commission of a substantial step toward the commission of the underlying offense, citing Cowans v. State, (1980) Ind., 412 N.E.2d 54. I.C. Sec. 35-41-5-1(a) [Burns 1979 Repl.] defines an attempt to commit an offense as occurring when a person "acting with the culpability required for the commission of the crime ... engages in conduct that constitutes a substantial step toward the commission of the crime." Rape is defined in relevant part by I.C. Sec. 35-42-1-1(a) [Burns 1979 Repl.] as occurring when "[a] person ... knowingly or intentionally has sexual intercourse with a member of the opposite sex when: (1) The other person is compelled by force or imminent threat of force ...." Construing these two statutes together, we have held a conviction for attempted rape is supported by sufficient evidence when one can logically find beyond a reasonable doubt the attacker intended to accomplish some penetration by the use of force or imminent threat of force and that he took a substantial step toward the accomplishment of that result. Smith v. State, (1982) Ind., 439 N.E.2d 634; Neice v. State, (1981) Ind., 421 N.E.2d 1109; Himes v. State, (1980) Ind., 403 N.E.2d 1377.

As we stated in Neice, supra, where a challenge to sufficiency of the evidence focuses on the evidence as to the defendant's taking of a substantial step, "The proper analysis focuses on what the accused has completed, and not upon what he has left undone." In Neice, supra, we upheld the defendant's conviction for attempted rape when he neither exposed his penis nor removed the underclothing of the intended victims. The accused in Neice, supra, had completed less than appellant toward the accomplishment of some penetration. Given the Neice holding, it is apparent there is sufficient evidence in the case at bar to warrant a reasonable factfinder's conclusion that appellant's act constituted a substantial step toward the commission of the crime of rape.

Appellant claims the trial court erred in overruling two oral motions for continuances needed to locate his only witness, one Ralph Brown. The record shows appellant's attorney made the first motion after voir dire of the jury. The attorney stated Brown was a material witness and that he had told appellant he was willing to testify as to the defense of intoxication, that he (the attorney) had delivered a subpoena for Brown to the sheriff three days earlier, that he had not received notice of the return of the subpoena, and that the day before trial (a Sunday) he had driven by Brown's home in Indianapolis to find him but had...