Haskett v. State

• Decision Date: 28 September 1979
• Docket Number: No. 978S197,978S197
• Citation: 271 Ind. 648,395 N.E.2d 229
• Parties: Jerry HASKETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 229

395 N.E.2d 229

271 Ind. 648

Jerry HASKETT, Appellant, v. STATE of Indiana, Appellee.

No. 978S197.

Supreme Court of Indiana.

Sept. 28, 1979.

Donald R. Peyton, Lebanon, for appellant.

Theodore L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy, Indianapolis, for appellee.

DeBRULER, Justice.

Jerry Haskett was convicted of rape in violation of Ind.Code § 35-13-4-3, repealed effective October 1, 1977, following a trial by jury and was sentenced to a fifteen year determinate term of imprisonment. On appeal appellant contends that the evidence was insufficient to convict and that he was denied the right to have the jury assess his punishment.

Appellant was charged with having raped one Sophronia Stewart. He contends that the evidence presented by the State was not sufficiently substantial to support the jury verdict. In determining this question we do not weigh the evidence nor resolve questions of credibility but look to the evidence and reasonable inferences therefrom which support the verdict. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657; Mitchell v. State, (1977) Ind., 366 N.E.2d 183.

The evidence upon which the jury could have based its verdict showed the following. The declared victim resided in Lebanon, Indiana with her husband and son Jimmy. Appellant had been acquainted with the son Jimmy for some four years prior to the date of the alleged attack on April 8, 1976, and during their acquaintance had visited the Stewart residence on several occasions. At the time the son Jimmy was in trouble with the police, and appellant went to the Stewart residence in the afternoon and took Mrs. Stewart to the grocery store, and at about 7:00 p. m. drove her husband to work. He then returned to the house where Mrs. Stewart was alone and entered without permission, and stayed there with Mrs. Stewart throughout the evening, drinking vodka. She asked him repeatedly to leave the house, but he ignored these requests, until finally he said to her that she needed a boyfriend. She replied that she did not, and became frightened and made a move toward the front door of the house. Appellant then grabbed her and began choking her and shoved her screaming into the bedroom, where he told her to shut up and threatened to hit her in the face. He shoved her onto the bed where he continued to grab her roughly, removed one leg from her underclothing and engaged in sexual intercourse with her. On first opportunity she fled the house and he thereupon left in his truck.

Four days later she was examined by a physician who testified that he found a bleeding point on the vaginal wall which required cauterization. He was unable to state the cause of this bleeding. Mrs. Stewart was sixty-one years old at the time. A pair of size 38 jockey shorts found by the police under the bed in the Stewart residence were introduced into evidence. Mrs. Stewart testified that she kicked these shorts under the bed during the attack and that her husband wore no shorts and that her son wore shorts in sizes 30 and 32. An officer testified that appellant wore size 36 jockey shorts while in jail awaiting trial.

Appellant testified in his own defense that he was present in the Stewart residence alone with Mrs. Stewart at the time of the attack described by Mrs. Stewart, but that he did not touch her or have sexual relations with her. He attributed statements to her which raised the implication that she trumped up the rape charge against him because she blamed him for her son's imprisonment.

The conviction here rests upon factual assertions by the declared victim which were not supported by proof from other sources. Appellant complains that the longstanding rule of this Court expressed in such cases as Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d 216, and Smith v. State, (1971) 255 Ind. 687, 266 N.E.2d 216, that a rape conviction may rest entirely upon the uncorroborated testimony of the prosecuting witness and victim is unfair. Statements made to this effect in appellate opinions are starkly simplified. Actually they are based upon the further unspoken premise that the weight of the evidence, the credibility of the witnesses, and the ultimate guilt or innocence of the accused are to be determined by the trier of fact. It is the right of the jury as trier of fact to believe the sworn verbal assertions of the prosecuting witness, Wedmore v. State, (1957) 237 Ind. 212, 143 N.E.2d 649, after having observed those assertions being made and after having heard the astute argument of defense counsel, and after having been properly instructed by the court, and after due collective consideration of all the evidence presented for their consideration. Viewed in this greater context the application of the standard appellate rule for reviewing the sufficiency of evidence to convict to rape convictions resting upon the uncorroborated testimony of victims is no more likely to result in unfairness to the accused in rape cases than in other cases.

Appellant contends further that the proof presented by the victim's testimony was inherently improbable and runs counter to human experience. Thomas v. State, (1958) 238 Ind. 658, 154 N.E.2d 503. Appellant complains of the fact that the alleged victim did not contact her neighbors, husband, or the police immediately after the attack, could not remember specific dates while testifying, and was inconsistent with her prior deposition to a degree. These contentions are properly directed to the weight of the evidence and did not render her testimony incredible as a matter of law. Grimm v. State, (1970) 254 Ind. 150, 258 N.E.2d 407. The evidence presented a question for the determination of the jury and it was sufficient to support the jury's conclusion that appellant is guilty of rape beyond a reasonable doubt.

We turn to the latter issue. Indiana Code § 35-8-2-1, provided:

"(W)hen the defendant is found guilty, the jury . . . must state, in the verdict the amount of fine and the punishment to be inflicted . . . ."

This statutory provision, where applicable, gives the jury alone the power to fix a punishment. Kocher v. State, (1979) Ind., 389 N.E.2d 18; Henson v. State, (1977) Ind., 370 N.E.2d 898; Ellison v. State, (1977) 266 Ind. 114, 360 N.E.2d 1256. It grants the accused in a criminal jury trial the statutory right to have his...