Dixon v. State, No. 175S32

• Docket Nº: No. 175S32
• Citation: 264 Ind. 651, 348 N.E.2d 401
• Case Date: June 16, 1976
• Court: Supreme Court of Indiana

Page 401

348 N.E.2d 401 264 Ind. 651 Floyd DIXON, Appellant,
v.
STATE of Indiana, Appellee. No. 175S32. Supreme Court of Indiana. June 16, 1976.

[264 Ind. 652]

Page 402

Stephen J. Johnson, Deputy Public Defender, Biddinger & Johnson, Marion, for appellant.

Theodore L. Sendak, Atty. Gen., Harry John Watson, III, Deputy Atty. Gen., Indianapolis, for appellee.

Page 403

DeBRULER, Justice.

Appellant, Floyd Dixon, was charged by information with rape, Ind.Code § 35--13--4--3, Burns § 10--4201 (Supp.1975). He was tried by jury and found guilty. He was sentenced to a term of twelve years.

On appeal, appellant raises two issues: (1) whether there was sufficient evidence of probative value to sustain appellant's conviction for rape, and (2) whether the trial court abused [264 Ind. 653] its discretion and committed reversible error, when it permitted the victim's mother, who was the State's first witness, to remain in the courtroom during the entire trial, after appellant's motion for a separation of witnesses.

Appellant argues that the evidence was insufficient because the victim's testimony was uncorroborated; because appellant's alibi testimony was corroborated by two witnesses; and because the State failed to prove that the intercourse was by force and against the woman's will.

As is well known, we do not sit as a second jury weighing the evidence and determining the credibility of witnesses. Rather, we determine only whether there was sufficient evidence of probative value for the jury to find present each of the elements of the crime and to identify the defendant as the perpetrator of the crime beyond a reasonable doubt. We consider then that evidence of probative value which may have been credited by the jury.

On October 23, 1973, in the evening, the young woman who was the victim in this case, a sixteen year old, high school junior, was driving home from a sorority meeting at her high school. On her way, she stopped and bought some gas and then stopped again at Hank's and bought some milk. She then intended to go home and was driving in that direction, when a car behind her flashed its front headlights at her. She stopped because she thought something was wrong with her car. This was about 9:30 p.m.

A young Black man got out of the car. He looked a little like an old friend of hers from a distance, but she realized he was not as he came closer. She had opened her door a little way. The man told her that gas was leaking from her car. She thought perhaps the gas station attendant had forgotten to replace the gas cap, and she opened the door further and put out one foot to look back. Seeing nothing, she thanked the man and started to close the door. The man stuck a butcher knife in her face and told her to slide over, get [264 Ind. 654] down on the floor in the front seat, and not look at him. She got down facing him. He held the knife in his hand on the seat near her head. At this point, they were parked near a street light and had the dome light in the car on until he closed the door. In these first minutes, he called her by her first name and told her that he and his friends had been watching her and that he knew she went to the high school.

He started to drive, making many turns, and she asked him if he were going to kidnap or kill her. When he said he was not, she asked what he wanted, and he laughed. She kept looking up at him as he answered, and he would tell her to put her head down. The dashboard lights were on as they drove.

After five minutes, he stopped in an isolated place where the woman could see some trees and the Giant watertower. The man reached over and locked her door. He told her to sit up on the seat, take her pants off, and lie down on the seat. She was very scared, but asked him if she had to. And, he told her to just do as he said and she would not get hurt. She asked him to put his knife down, because she was afraid he would stab her. He put it up on the dashboard. Then he had intercourse with her. After a while, he told her to put on her pants. He took up his knife again and told her to get back down on the floor. He started driving again, and she asked him where he

Page 404

was taking her. She talked to him, and he answered her some of the time. He said he would meet her at the same place the following night, and she said maybe. Finally, he took her back to within two blocks of his car. She asked him to put his knife in his left hand as he got out, because she did not trust him. He did so, and she quickly locked the door and drove home.

She was extremely upset, but was able to tell her mother what had happened. Her mother called the police, who came and searched her car thoroughly. They found a pack of Salem cigarettes, which might have belonged to the assailant. They could not find any fingerprints because none of the surfaces [264 Ind. 655] of the car which the man had touched were smooth. The woman went to the hospital for tests. The doctor testified that the tests were positive, showing that intercourse had occurred in the previous few hours. She then went to the police station and looked through three mug books, containing a total of 225 photographs, but she saw no one who looked like her assailant. (There was no photograph of appellant in the book.) She described her assailant's car as dark blue with a white top, and not old. She also described her assailant's height, weight, clothes and stubbly hair on his face, with no beard or mustache.

Five days later, on Sunday, October 27, 1973, two Black men drove slowly by the young woman's house looking at it. Both her mother in the kitchen and her father in the garage saw them. The men turned around and drove slowly back. Then they stopped in front and looked at the house. Her father walked down to the street and noted the license number as they drove away. He called the police and gave the number, 27 A 8751, and a...