Greentree v. State, 875S193

• Decision Date: 06 July 1976
• Docket Number: No. 875S193,875S193
• Parties: Kenneth W. GREENTREE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 25

351 N.E.2d 25

265 Ind. 47

Kenneth W. GREENTREE, Appellant, v. STATE of Indiana, Appellee.

No. 875S193.

Supreme Court of Indiana.

July 6, 1976.

John H. McKenna, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Kenneth W. Greentree, was convicted on March 26, 1975, of rape and was sentenced on April 11, 1975, to a determinate sentence of twenty-one years. Trial counsel for the Appellant filed a Motion to Correct Errors on May 20, 1975. This motion was denied on May 30, 1975, at which time the trial court appointed counsel to perfect this appeal. While appeal from the denial of this motion was pending, the Appellant petitioned the trial court for permission to file a Belated Motion to Correct Errors. The trial court granted this petition and on February 16, 1976, this court granted the Appellant permission to file a supplemental record which included the denied Belated Motion to Correct Errors.

I.

2. The Appellant's Belated Motion to Correct Errors presents a problem which should be dispensed with before considering the merits of the issues presented. The Appellant's brief states that the 'issue in this case is whether the Trial Court erred in denying the Defendant's Belated Motion to Correct Errors filed by the Appellant herein.' The brief then proceeds to discuss an issue not raised in that belated motion. The brief of the Appellee argues that the issue is waived. The Appellant responds that the issue was included in the original motion to correct errors (which is true) and was incorporated 'by reference' in the belated motion (which is not true). He adds, in rather cart-before-the-horse fashion, that the fact that the issue is argued in the brief is evidence that he did not intend to exclude the original motion to correct errors.

Both arguments seem to assume that the belated motion to correct errors replaces the original motion. The Appellant apparently believes that the later motion incorporates the first. The Appellee apparently believes that the belated motion amends or replaces its predecessor to the exclusion of issues not raised in the later motion. In fact, the belated motion in effect supplemented the original motion to correct errors. When this court permitted consolidation of the supplemental record with that already filed, the issues presented with them were also consolidated.

The situation presented here is one in which a belated motion to correct errors was filed while appeal on the original motion to correct errors was still pending. This court faced a similar situation under our old rules of procedure in Shack v. State, (1967) 249 Ind. 60, 206 N.E.2d 614. In that case, we held that, where an appeal was pending, matters raised in a belated motion for new trial should be consolidated with the appeal as additional grounds for error. The logic of such a result here is clear. The issues have been fully preserved and presented to the trial court for its review. The purpose of a motion to correct errors under Trial Rule 59 has thus been carried out and there seems to be little reason for not reviewing each issue presented to this court. Moreover, by permitting consolidation we make unnecessary a later belated appeal and thus encourage appellate efficiency.

Post Conviction Remedy Rule 2 states that a belated motion to correct errors is to be permitted where '. . . no timely and adequate motion to correct errors was filed . . .' (emphasis supplied). Here it is apparent that the Appellant contended that the original motion to correct errors was inadequate because of the additional issues which were not specifically included. Accordingly, we shall consider all issues properly raised if contained in the original or the belated motion to correct errors.

II.

The first issue argued by the Appellant is the issue which was included in the original motion to correct errors and not in the belated motion: sufficiency of the evidence. In determining whether the verdict of a jury is supported by sufficient evidence, we look at the evidence most favorable to the State and the reasonable inferences to be drawn from that evidence. We do not judge the credibility of witnesses or weigh evidence. The verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Young v. State, (1975) Ind., 332 N.E.2d 103; Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686; Jackson v. State, (1971) 257 Ind. 477, 275 N.E.2d 538.

The evidence most favorable to the State in this case reveals that on the evening of September 4, 1974, Tim Marsh Williams, age 18, picked up Beverly Wallace, age 17, at her Whiting, Indiana, home. Williams had originally called on the Wallace family home at 8:00 p.m., only to find his date was not home. When he returned at 9:00 p.m. he was somewhat angry and the two teenagers drove to the Whiting beach parking lot to talk.

The couple were parked for some fifteen minutes when two men approached Williams' van. One asked whether the police bothered couples who parked in the beach lot. Williams replied that they did not. Some fifteen minutes later these men returned. One or both of the men carried a tire iron and the two of them, one identified as the Appellant, entered the van.

When the Appellant and his companion entered, Williams asked if they wanted his money. They indicated they did and Williams gave the Appellant $22.00. Williams and Wallace were told to get in the back seat. They remained there until two police officers approached the van. As Williams returned to the driver's seat the Appellant's companion placed a tire iron to his head and told him to 'be cool.' Police asked who owned the van, checked Williams' license, and left.

After the policemen left, the Appellant's companion, Danny Patrick, drove the van to another part of the beach park located in Hammond. Both men had intercourse with Beverly Wallace at that location. She denied consenting to the activity. She was also compelled by the Appellant to engage in acts of oral and anal intercourse in the back of the van and in the Appellant's car. The Appellant and Patrick left in the early morning hours of September 5. Williams and Wallace went to the Wallace home, awakened Beverly's mother, and told her what happened. The three went to the police at about 2:30 a.m.

The Appellant contends that the evidence is insufficient to prove that the Appellant's intercourse with the complainant was the product of force. The Appellant contends that he was invited by Williams to 'check out' the complainant and that the resulting sexual activity was with her consent. This argument essentially asks us to weigh the evidence and judge the credibility of the witnesses, which we cannot do.

The complainant testified that the Appellant, carrying a 'crowbar', came to the back of the van and 'grabbed' her face. When she asked what would happen if she did not do as he wished, the Appellant replied that she did not want to find out. She denied consenting to the acts. She testified, 'He was pulling my hair and just would not get off me. I was screaming and crying.'

' A conviction of rape may be sustained solely on the testimony of the prosecuting witness. Smith v. State (1971), 255 Ind. 687, 266 N.E.2d 216.' Beard v. State, (1975) Ind., 323 N.E.2d 216 at 218. In this case, there was more than this. Williams, who was kept by Patrick in the front of the van and could not see what was happening, testified that he could hear the complainant crying and screaming. He contradicted claims by the Appellant that they had all been drinking and that he had invited the Appellant to 'check out' his date. The police who had checked Williams' driver's license testified that they could detect no drinking in the van at that time.

This evidence was sufficient to support the jury's verdict. The Appellant's defense alleging consent and denying the presence of force was put before the jury. It was within the province of that trier of fact to choose not to believe that theory.

III.

The Appellant's second contention is that the trial court erred in admitting into evidence testimony regarding other crimes for which the Appellant was not charged. Those crimes were the apparent robbery of Williams and the acts of sodomy committed against Beverly Wallace. The Appellant has waived this issue.

The Appellant's Belated Motion to Correct Errors specified only evidence of sodomy as improperly admitted. Because the evidence of robbery was not specified, appeal on that issue has been waived. Finch v. State, (1975) Ind., 338 N.E.2d 629. Moreover, trial counsel for the Appellant failed to object at trial to the admission into evidence of testimony regarding both the acts of sodomy and robbery. An error not raised by proper objection at trial will not be considered on appeal unless failure to consider the error would deny the Appellant 'fundamental due process.' Brown v. State, (1975) Ind., 338 N.E.2d 498. There is no such denial of due process here.

We would note in passing, however, that the Appellant argues that the objected to testimony involves 'separate and distinct crimes.' This is not the case. The alleged crimes of sodomy and robbery here were contemporaneous with the charged offense and were part of the 'res gestae' of that crime. Such evidence is clearly admissible. Thomas v. State, (1975) Ind., 328 N.E.2d 212.

IV.

The Appellant's final contentions are that he was denied effective assistance of counsel and that he was improperly denied a speedy trial. Because both of these issues center on the same...