Harbison v. State
| Decision Date | 31 August 1983 |
| Docket Number | No. 682S246,682S246 |
| Parties | Robert G. HARBISON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted, following a trial by jury, of Count I, Criminal Deviate Conduct, Ind.Code Sec. 35-42-4-2 (Burns 1979), Count II, Conspiracy to Commit Criminal Deviate Conduct, Ind.Code Sec. 35-41-5-2 (Burns 1979), and Count III, Criminal Confinement, Ind.Code Sec. 35-42-3-3(a)(2) (Burns Supp.1982), and was sentenced to thirty-five (35) years imprisonment. This direct appeal presents the following issues:
1. Whether the evidence is sufficient to sustain the convictions.
2. Whether the trial court erred in denying Defendant's motion to transfer venue to Martin County.
3. Whether Defendant was denied the effective assistance of counsel.
4. Whether Ind.Code Sec. 35-42-3-3(a)(2) is unconstitutionally vague and overly broad.
* * *
Defendant raises three unrelated challenges to the sufficiency of the evidence. At the outset, we note our standard of review:
Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. (citations omitted).
Defendant first contends that the only evidence of an agreement to commit Criminal Deviate Conduct between himself and his cohort was contained in his statement to the police, which contains the following:
He argues that this statement evidenced no agreement to commit a felony. We agree that, standing alone, the statement was not adequate proof of conspiracy; however, the requisite agreement or meeting of the minds may be proved by direct or circumstantial evidence. Woods v. State, (1980) Ind., 413 N.E.2d 572, 573. Within the context of the succeeding events, Danny Sears' statement, accompanied by Defendant's silent response, evidenced a meeting of the minds. After the statement was made, Defendant and Sears lured the victim to a remote location where, after further consultation, they brandished knives, threatened the victim, and forced him to perform fellatio upon them. The nature of the assault shed light upon the meaning and intent of the perpetrators' earlier discussion. That the assault was completed as a joint effort further suggested the existence of a conspiracy. See Patterson v. State, (1979) 270 Ind. 469, 478, 386 N.E.2d 936, 942, cert. denied, (1979) 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194; Turner v. State, (1970) 255 Ind. 427, 429, 265 N.E.2d 11, 12; Johnson v. State, (1968) 251 Ind. 182, 190-91, 240 N.E.2d 70, 75; Steffler v. State, (1952) 230 Ind. 557, 564-65, 104 N.E.2d 729, 733; Steadman v. State, (1979) 179 Ind.App. 456, 385 N.E.2d 1200, 1202. The evidence was sufficient to allow the jury to find beyond a reasonable doubt, that shortly after they met the victim at the tavern, Defendant
conspired with Danny Sears to force the victim to perform fellatio upon them.
Defendant next argues that there was no evidence of the removal of the victim by "enticement" as alleged in the count charging Criminal confinement. He notes that the victim testified that he voluntarily accompanied Defendant and Sears and thought that he was merely on a joy ride.
This argument overlooks the totality of the circumstances and the reasonable inferences susceptible of being drawn therefrom. The criminal design had been formed at the tavern prior to the victim's consensually accompanying his assailants. Issue I, supra. The group first went to a swimming quarry upon the pretext of viewing girls skinny dipping. The conversation had turned to the matter of locating female companionship. Upon arrival they were informed that the quarry was closed. They returned to the tavern where they switched to Defendant's automobile and proceeded to a liquor store where Defendant and Sears purchased vodka and soft drinks, which the group consumed. The victim remained in the back seat of a two-door vehicle. They then drove to a gas station/grocery store near Fayetteville where the victim and Sears purchased cigarettes while Defendant purchased fuel. On the pretext of checking upon a rental or mortgage payment due Sears, the victim, thinking he was on a "Joyride," was lured into accompanying his assailants to the scene of the attack. A police officer, who knew the victim, testified that the victim was mentally slow and acted like a little boy.
From this evidence, the jury could reasonably infer that Defendant and Sears turned the conversation to sex to arouse the victim's libido. They may have intended to execute the conspiracy at the swimming quarry, but they were thwarted and instead attempted to ply the victim and further gain his confidence, with alcoholic beverages. They continued the ruse with a falsehood about the purpose of their trip, and Defendant may have stopped for gasoline to create the impression that the impending journey would be longer than the one that actually occurred. Viewed in this light, the evidence was sufficient to allow the jury to find, beyond a reasonable doubt, that Defendant, possessed of a criminal motive, enticed the victim in order to lure him to a remote location for purposes of an assault.
Lastly, Defendant challenges the proof of the venue of the offenses, a matter we discuss fully in Issue II, infra.
Defendant contends that the trial court erred in denying his motion to transfer Counts I and III to Martin County. At trial, the parties stipulated that the assault had, apparently by the fortuity of the curves in the road, occurred in Martin County. Defendant argues that there is no evidence to show a criminal confinement or an act of criminal deviate conduct in Lawrence County. He asserts that Indiana law, see Rodriguez v. State, (1979) 270 Ind. 613, 615, 388 N.E.2d 493, 494-95; Workman v. State, (1939) 216 Ind. 68, 75, 21 N.E.2d 712, 715, requires the conspiracy charged to be tried in the venue where the underlying felony was completed. We need not decide this question. At the time of the instant offenses Ind.Code Sec. 35-1.1-2-1(d) (Burns 1979) provided:
"If the commission of an offense is commenced in one county and is consummated in another county, trial may be had in either of the counties."
Based upon the evidence, the criminal transaction commenced in Lawrence County, where the conspiracy was fomented, and ended in Martin County, where the assault occurred; consequently, under the statute then in effect, Lawrence County was a proper venue for all the charges. See Osborne v. State, (1981) Ind., 426 N.E.2d 20, 22 (...
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