Fointno v. State

• Decision Date: 06 January 1986
• Docket Number: No. 1283S460,1283S460
• Citation: 487 N.E.2d 140
• Parties: Victor FOINTNO, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 140

487 N.E.2d 140

Victor FOINTNO, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1283S460.

Supreme Court of Indiana.

Jan. 6, 1986.

Max Cohen and David Capp, Cohen & Thiros, Merrillville, for appellant.

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

PRENTICE, Justice.

Following a jury trial, Defendant (Appellant) was convicted of one (1) count of class A felony rape, Ind.Code Sec. 35-42-4-1 (Burns 1979 Repl.), three (3) counts of class A felony criminal deviate conduct, Ind.Code Sec. 35-42-4-2 (Burns 1979 Repl.), two (2) counts of confinement, a class B felony, Ind.Code Sec. 35-42-3-3 (Burns 1982 Cum.Supp.), one (1) count of robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.), and one (1) count of intimidation, a class D felony, Ind.Code Sec. 35-45-2-1 (Burns 1982 Cum.Supp.). He was sentenced to various consecutive terms of imprisonment totalling 104 years.

This direct appeal raises several issues, which we have restated as follows:

1. Whether the trial court erred in admitting expert testimony derived from analysis of a "rape kit" when the "rape kit" had been negligently destroyed by police and was not available when requested by a discovery motion.

2. Whether the evidence was sufficient to sustain the convictions.

3. Whether the 104-year sentence is manifestly unreasonable, in light of Defendant's background and the facts and circumstances of this case.

We affirm the convictions but remand this cause with instructions to modify the sentence. The facts are set out, as needed, in our discussion below.

ISSUE I

Defendant contends that he was deprived of due process of law by the trial court's permitting a State's expert witness to testify concerning results of his tests upon specimens in the "rape kit" assembled when the victim went to a hospital shortly after the assault. The parties basically agree that two discovery orders obtained by Defendant encompassed the "rape kit," and that Anderson police negligently destroyed it after the samples had been tested by the expert witness but before Defendant had had an opportunity to have them tested by his own experts. The "rape kit" also included hairs which had never been compared with specimens from Defendant and could not be so compared, because of the destruction.

The "rape kit" included materials and containers for collecting specimens for use in determining whether there had been a sexual assault and in identifying the assailant.

The specimens in this case included blood and seminal residue.

The victim acknowledged that she had had sexual intercourse with her husband about eight (8) hours before the assault occurred. However, the State's expert testified that, based on his analysis of the specimens from the "rape kit," Defendant and the victim's husband, the seminal residue collected in the "rape kit" had not been secreted by her husband, and that Defendant was in that segment of 88% of the male population, any member of which could have secreted it. The expert could not, based on his analysis of the specimens, directly implicate Defendant.

On appeal, Defendant claims that he was not provided with discovery and that admission of the expert's testimony, above related, in view of the destruction of the kit and its unavailability to him, violated due process requirements. See generally, United States v. Bagley (1985), --- U.S. ----, 105 S.Ct. 3375, 87 L.Ed.2d 481; Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. We find no reversible error because the record does not demonstrate that Defendant presented these arguments before the trial judge, who, accordingly, was not given the opportunity to ameliorate against the harm, if any, caused by admission of the evidence and the State's failure to respond to discovery.

The only record we have of the matter being raised prior to the filing of the motion to correct errors is an entry by the trial judge, read in open court out of the presence of the jury, stating that the fact the "rape kit" had been negligently destroyed, standing alone, did not require that evidence derived from the specimens be excluded. From the court's ruling we cannot discern the specific grounds for objection, or the time or manner in which it was made.

If the Defendant made a timely request for access to the materials subsequently lost, with a view toward analysis that might either exonerate him or discredit the State's expert witness he may very well have been entitled to exclude the testimony. However, there is nothing in the record concerning the procedure employed to exclude the testimony, the time of protestation or the grounds therefor.

Thus, from what is presented to us on this appeal we can only speculate that the testimony of the State's expert witness may have, under the circumstances, presented the potential for substantial error. Although we certainly do not condone the negligent loss of the "rape kit," it is well established that a party objecting to the admission of evidence must make a timely objection demonstrating the basis for excluding it, and on appeal must provide the reviewing court with a record demonstrating the error and the harm resulting. See, Watkins v. State (1984), Ind., 460 N.E.2d 514, 515; cf. Wright v. State (1984), Ind., 467 N.E.2d 22, 24 (where State's withholding of evidence was not deliberate, and defendant otherwise did not show prejudice stemming from failure to provide discovery, no reversible error occurred). Defendant has failed to establish reversible error in this case.

ISSUE II

Defendant contends that the evidence presented by the State was not sufficient to sustain the convictions. The record, however, includes substantial evidence supporting the jury's conclusions that Defendant committed these crimes.

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses."

Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Moreover, this Court has repeatedly held that convictions for rape or criminal deviate conduct may rest upon the uncorroborated testimony of the victim. See, e.g. Bowen v The victim testified that she had taken her seven-year-old daughter to a hospital emergency room for treatment of an earache. The physician there gave her a prescription which the victim had filled at a drugstore at about 2:00 a.m. When the victim returned to her van and started to drive away, a man whom the victim later identified as Defendant approached the van, pointed a small pistol at her and ordered her to let him inside. The man then drove the van to a nearby apartment complex parking lot. There he instructed the victim to tell her child to lie on a back seat and turn her head away. During the following two (2) hours the man repeatedly required the victim to submit to a variety of sexual acts. He also took $42.00 from her, and implied that he would harm her if she reported the assault to authorities.

State (1985), Ind., 478 N.E.2d 44, 46-47; Shippen v. State (1985), Ind., 477 N.E.2d 903, 904 and authorities cited.

The victim observed a maroon-colored automobile parked in the drugstore parking lot while she was there. It was gone when next she saw the lot shortly after she drove out of the apartment complex parking lot after her assailant had departed.

The victim subsequently chose three (3) photographs, out of an array of about 200, as resembling her assailant. Two of these photographs, gleaned from handgun registration records, depicted Defendant. Police eventually obtained a search warrant for Defendant's home, and the victim, thereafter, identified a pistol and jacket recovered during that search as having been in her assailant's possession during the assault. The State also presented testimony that Defendant owned a maroon-colored automobile and had been in the crime scene area shortly before these crimes occurred. During presentation of her testimony, the victim unequivocably identified Defendant as her assailant.

Defendant presents various arguments challenging this evidence. He suggests that the medical evidence from the initial examination of the victim, which demonstrated that the victim had suffered comparatively little trauma, disclosed that no assault had occurred. However, the State presented other medical evidence consistent with a sexual assault having occurred. As to her identification of him as the assailant, Defendant emphasizes that a composite drawing prepared from her description was shown to guards at nearby Pendleton Reformatory, and that they stated that the drawing resembled one Bruce Johnson, who had recently been released, but later had been murdered. However, an officer familiar with Johnson, and who had seen Johnson shortly before these crimes occurred, stated that the drawing did not resemble Johnson in several respects. Defendant also emphasizes that the victim testified that he appeared lighter in weight and darker in complexion than he was at the time of the assault. These acknowledged differences in the appearance of the Defendant and of assailant, as perceived by the victim, went to the weight of the evidence and the credibility of the witness. We also note that the victim's identification testimony in this regard was corroborated by another State's witness.

This record includes substantial evidence that the victim and her daughter suffered confinement, that the victim endured repeated sexual assaults, robbery and intimidation, and that Defendant committed these acts. The evidence was sufficient to sustain all...