Goolsby v. State, 984

• Decision Date: 29 December 1987
• Docket Number: No. 984,984
• Parties: Charles Edward GOOLSBY, Appellant, v. STATE of Indiana, Appellee. S 356.
• Court: Indiana Supreme Court

Page 54

517 N.E.2d 54

Charles Edward GOOLSBY, Appellant, v. STATE of Indiana, Appellee.

No. 984 S 356.

Supreme Court of Indiana.

Dec. 29, 1987.

Sharon Carroll Clark, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PER CURIAM.

Appellant was convicted by a jury of Attempted Murder, Rape, and Burglary, all Class A felonies, and Battery, a Class A misdemeanor. He was sentenced to consecutive terms of thirty-eight (38) years for the attempted murder, fifty (50) years for the rape and one (1) year for the battery. Appellant was sentenced to a concurrent term of fifty (50) years for the burglary.

The facts are: During the evening hours of June 2, 1983, B.R. and her five-year-old son, C.R., had fallen asleep in the living room of their second-story apartment. Appellant gained entry into the apartment through an open attic window, grabbed the sleeping B.R. and repeatedly struck her in the face. C.R. was awakened by the attack and implored appellant to refrain from injuring his mother. Appellant responded by slapping C.R. across the face and ordering him to remain quiet. Appellant then resumed his attack on B.R. She was stabbed with a knife in the chest and neck and struck with a heavy object until she was rendered unconscious. Appellant dragged the unconscious B.R. into the bedroom. When she regained consciousness, B.R., partially dressed, fled the apartment with her son to seek assistance from a neighbor.

Police officers were promptly dispatched to the scene and B.R. was then transported to the hospital for treatment. The officers inspected the residence and observed signs of struggle, an open attic window and a chair located near the attic window which was marred by a footprint.

Appellant contends the trial court erred by denying his request to be administered a polygraph examination. Appellant requests this Court to reconsider our view stated in Robinson v. State (1974), 262 Ind. 463, 317 N.E.2d 850. In Robinson, we held that the results of a polygraph examination, or evidence that defendant offered or refused to take one, are inadmissible in a criminal prosecution absent a waiver or stipulation by the parties. We are still in agreement that polygraph examinations are not scientifically reliable and are inadmissible absent stipulation by both parties. Hestand v. State (1986), Ind., 491 N.E.2d 976. There is no error.

Appellant next contends the trial court erred by denying his pretrial motion for a voice lineup. Appellant suggests there was a likelihood of mistaken identification.

The granting of a lineup at the defendant's request is largely a matter within the discretion of the trial court. Smith v. State (1986), Ind., 490 N.E.2d 748. In the present case, B.R. positively identified appellant from six photographs. There has been no showing that the failure to require a voice lineup prejudiced appellant. We conclude the trial court did not abuse its discretion by denying appellant's motion.

Appellant next contends that there was not sufficient evidence of probative value to sustain his conviction for the crime of burglary. Specifically, appellant argues there was no evidence of a breaking.

This court does not reweigh the evidence nor judge the credibility of witnesses. Smith v. State (1985), Ind., 474 N.E.2d 71. To establish "burglary," the State must prove beyond a reasonable doubt that the defendant broke and entered the dwelling of another with the intent to commit a felony. Ind.Code Sec. 35-43-2-1; St. Mociers v. State (1984), Ind., 459 N.E.2d 26.

A breaking for purposes of burglary is proven by showing that even the slightest force was used to gain unauthorized entry. Trice v. State (1986), Ind., 490 N.E.2d 757. Opening an unlocked door, raising an unlocked window or pushing a door which is slightly ajar constitutes "breaking." Jacobs v. State (1983), Ind.App., 454 N.E.2d 894.

The evidence reveals that on the night of June 2, 1983, B.R. opened an attic window approximately one foot in order to air out the room. Upon being shown a picture of the window, B.R. testified that the window was open wider than she had left it that evening. There is substantial evidence of probative value which would permit the jury to reasonably infer that appellant broke into the victim's house by crawling through the attic window.

Appellant next contends there was not sufficient evidence of probative value on the element of penetration to sustain his conviction for the crime of rape. Rape is defined in Ind.Code Sec. 35-42-4-1 and requires sexual intercourse for a conviction. Sexual intercourse is defined as "an act that includes any penetration of the female sex organ by the male sex organ." Ind.Code Sec. 35-41-1-26.

We find the State presented insufficient evidence of penetration to support a conviction for rape. B.R. was knocked unconscious during the attack. She complained of tenderness in the vaginal area and informed hospital personnel she may have been raped. Dr. Phillip Pinegar, who examined B.R. shortly after the attack, testified her vagina appeared normal and that there were no signs of trauma indicating forcible penetration. He also testified that a small amount of non-motile sperm was discovered. He explained that sperm from the vast majority of males is motile for 1-2 days and that the presence of non-motile sperm either meant the male was abnormal or that sexual intercourse had occurred 2-3 days previously. He also recounted that B.R. told him she had engaged in voluntary sexual intercourse approximately 48 hours prior to the examination.

Consequently, the only evidence of penetration was B.R.'s statement of tenderness in the vaginal area. This is not enough to support a rape conviction. We therefore reverse the judgment of the trial court on this issue; and there being nothing in the record to indicate that the evidential deficiency might be supplied upon a retrial, we direct that appellant be acquitted on the charge of rape.

Appellant contends there was not sufficient evidence of probative value on the element of intent to kill to sustain his conviction for attempted murder. A crime of attempt occurs when one having the state of mind required for a particular substantive offense conducts himself so as to take a substantial step towards the commission of that offense. Ind.Code Sec. 35-41-5-1. The intent to commit murder may be inferred from the deliberate use of a deadly weapon in a manner reasonably likely to cause death. Spivey v. State (1982), Ind., 436 N.E.2d 61.

In the present case, appellant stabbed the victim with a knife in the neck and chest and then struck her with a heavy object until she was rendered unconscious. Dr. Pinegar testified that the victim sustained a laceration on her breastbone which was located directly in front of her heart. In addition, Dr. Pinegar commented that the wounds to the neck area were highly critical. If blood vessels in the neck area are punctured, an individual could bleed to death if pressure is not immediately applied. Appellant's use of the knife to stab the victim in the neck and chest established the requisite intent for attempted murder and was therefore sufficient to support the conviction.

Appellant next contends there was not sufficient evidence to establish his identity as the perpetrator of the offense. To support his contention, appellant cites variances in the testimony of the victim and her son. In this case the victim was able to observe appellant's profile in adequate lighting several different times during the attack and quickly identified his photograph from a photographic array. The victim also recognized appellant's voice. Furthermore, both the victim and her son positively identified appellant at the trial. There was sufficient evidence of the identity of appellant as the perpetrator of the offense to support the verdict.

Appellant next contends that the trial court abused its discretion and committed reversible error when it allowed into evidence the testimony of the victim's five-year-old son. Specifically, appellant argues the State failed to prove that C.R. was competent to testify.

Children less than ten years old may testify if it appears that they understand the nature and obligation of an oath. Ind.Code Sec. 34-1-14-5. The determination of a child's competency lies solely within the trial court's discretion since the trial judge has the opportunity to observe the child's intelligence, demeanor and maturity. Peters v. State (1984), Ind., 470 N.E.2d 708. This Court has held that a child is competent to testify if the trial court finds the child knows the difference between telling the truth and telling a lie and knows that he or she will be punished for telling a lie. Lindsey v. State (1984), Ind., 465 N.E.2d 721. We will not reverse the trial court's decision unless it represents a manifest abuse of discretion. Stewart v. State (1982), Ind., 442 N.E.2d 1026.

The record reveals that the trial judge thoroughly questioned C.R. to determine his ability to understand the obligation of an oath and the difference between telling the truth and telling a lie. C.R. testified that he knew the difference between the truth and a lie. He also stated that he knew he might "get a spanking" for not telling the truth. There was sufficient evidence to demonstrate that C.R. understood the nature and obligation of an oath. The trial court did not abuse its discretion by finding C.R. competent to testify.

Appellant next contends the trial court erred by denying his request for a psychiatric evaluation of C.R. prior to the competency hearing. Appellant argues that C.R.'s young age and demeanor on the witness stand should have caused the court enough concern to order an examination. The trial court has wide discretion to determine whether there are reasonable grounds to believe that a witness is incompetent to testify and that decision will be reversed only for an abuse of...