Dobrzykowski v. State, 578S81

• Decision Date: 22 November 1978
• Docket Number: No. 578S81,578S81
• Citation: 269 Ind. 604,382 N.E.2d 170
• Parties: Michael E. DOBRZYKOWSKI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 170

382 N.E.2d 170

269 Ind. 604

Michael E. DOBRZYKOWSKI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 578S81.

Supreme Court of Indiana.

Nov. 22, 1978.

Harriette Bailey Conn, Public Defender, David P. Freund, Eugene C. Hollander, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William E. Daily, Asst. Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Michael Dobrzykowski, was convicted by a jury of rape, Ind.Code § 35-13-4-3 (Burns 1975), and sentenced to eighteen years' imprisonment. In this direct appeal he raises the issue of the sufficiency of the evidence.

The facts from the record most favorable to the state reveal that the following incidents occurred on the night of June 13, 1977. Several young teenage boys met to spend the night camping out in a homemade "fort" they had built in a backyard. Later in the evening, the victim, Tracy, who was twelve years old, and her eleven year old sister, joined the group. The defendant, who was twenty-three years old, and one of his friends also joined the group. The youths were sitting around a bonfire they had built and several of them were drinking beer and wine. Defendant stated that he would get the victim drunk in order to have sexual relations with her. He told some of the other boys to take her sister on a long walk so he and the victim could be alone.

The victim went inside the fort to lie down as she became ill from drinking the beer and wine. The defendant then also went inside the fort and the other boys heard the victim "screaming" and "crying." One of the boys looked inside and saw the defendant lying on top of the victim. Two of the younger boys went and got a gun and pointed it into the fort. The defendant came running out and the boys found the victim lying on the bed, covered with a sleeping bag, crying and asking for her mother.

A medical examination revealed that the victim had abrasions on her face and shoulder, and a small tear on the outside of the vaginal wall. The doctor testified that she was in a state of shock and that a further vaginal examination was impossible because of her emotional state. The examination did not reveal the presence of spermatozoa. The victim testified that she knew what sexual intercourse was and that the defendant had forced her to have intercourse with him.

The defendant now argues that his conviction was based upon insufficient evidence because he was in such an intoxicated state that he could not have formed the specific intent necessary. He also alleges that the testimony of the twelve year old victim was too unreliable to be a basis for his conviction and that there was not sufficient evidence establishing that the crime of rape occurred.

Before specifically addressing defendant's claim of insufficiency of the evidence, we feel compelled to reiterate what we have repeatedly held that in reviewing the sufficiency of the evidence we do not weigh the evidence or judge credibility. We consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. When there is substantial evidence of probative value supporting the jury's verdict, the conviction will not be set aside. Poindexter v. State, (1978) Ind., 374 N.E.2d 509; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776.

To prove rape the state must show penetration forcibly against the will of the victim. Ind.Code § 35-13-4-3, Supra. The burden of proving affirmative defenses, including that of intoxication, is on the defendant. Smith v. State, (1971) 255 Ind. 687, 266 N.E.2d 216. In the instant...