Dinger v. State

• Decision Date: 27 June 1989
• Docket Number: No. 22SOO-8710-CR-OO986,22SOO-8710-CR-OO986
• Parties: Tim DINGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 39

540 N.E.2d 39

Tim DINGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 22SOO-8710-CR-OO986.

Supreme Court of Indiana.

June 27, 1989.

Michael J. McDaniel, McDaniel, Biggs & Ollis, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Tim Dinger was convicted following a trial by jury of two counts each of rape, criminal deviate conduct, and child molesting, all class B felonies, Ind.Code Secs. 35-42-4-1 through -3 (Burns 1985 Repl.). He was also convicted of two counts of incest, a class D felony. Ind.Code Sec. 35-46-1-3 (Burns 1985 Repl.). The trial court vacated the rape convictions, but sentenced Dinger to consecutive twenty-year terms on each of the four remaining class B felonies. The trial court also sentenced him to concurrent four-year terms on each of the class D felonies. Dinger's sentence totals eighty years in prison.

Three of the class B convictions and one of the class D convictions derive from claims of anal or vaginal intercourse with Dinger's stepdaughter, J.B. Dinger asserts that the evidence was insufficient to prove that penetration occurred. When reviewing the sufficiency of the evidence, this Court will not reweigh the evidence nor judge the credibility of witnesses. We will 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. Stwalley v. State (1989), Ind., 534 N.E.2d 229. The uncorroborated testimony of the victim of a sexual attack, even if the victim is a minor, is sufficient to sustain a conviction for child molesting. Morrison v. State (1984), Ind., 462 N.E.2d 78.

At trial, twelve-year-old J.B. testified that Dinger "hunched" her, that he would "get on top" of her and "go up and down" with his "below part down below [her] vagina." She also testified that sometimes "he would do it back end and sometimes he'd do it in front." She stated that her rectum would bleed sometimes and she would have pain in her stomach. A taped statement J.B. gave to a police officer on the day after the crimes were committed was also introduced into evidence. In that statement, J.B. said that Dinger put "it [his penis] in and it hurt."

J.B.'s testimony was corroborated by the testimony of her sister, P.B., and her brother, C.B. and by medical evidence. P.B. testified that she and her sister were both "raped" by Dinger. She then described rape as occurring when "he sticks his penis in the girl's vagina." C.B. testified that he had seen Dinger stick his "weenie" in the "front private" of each of the girls.

Finally, proof of the slightest penetration is sufficient, and the fact-finder may infer penetration from the victim's physical condition soon after the crime. Brown v. State (1982), Ind., 442 N.E.2d 1109. Dr. Barham Sephari, a pediatrician who examined J.B. after the crime, testified that there were "small pinpoint bruises on, around her hymen" and "a small, superficial laceration on the side of her vagina." The evidence of penetration was sufficient to sustain appellant's conviction.

Dinger further claims that the children's testimony was incredible and should be excluded from consideration by this court, citing Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658. He argues that the evidence...