Hightower v. State, 771S201

• Decision Date: 01 June 1973
• Docket Number: No. 771S201,771S201
• Citation: 296 N.E.2d 654,260 Ind. 481
• Parties: Carl E. HIGHTOWER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 654

296 N.E.2d 654

260 Ind. 481

Carl E. HIGHTOWER, Appellant, v. STATE of Indiana, Appellee.

No. 771S201.

Supreme Court of Indiana.

June 1, 1973.

Rehearing Denied Aug. 13, 1973.

Forrest Bowman, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

DeBRULER, Justice.

This is an appeal from a conviction of statutory rape (I.C. 1971, 35--13--4--3, being Burns § 10--4201), after a trial by jury in the Owen Circuit Court, Judge William T. Sharp presiding. Appellant was originally charged with three offenses: a statutory rape of one Rebecca Gentry on August 1, 1969, an assault and battery with intent to gratify sexual desires on Rebecca Gentry on January 30, 1970, and a statutory rape of one Brenda Gentry on January 31, 1970. All three of these causes were consolidated for trial by agreement of the parties and were submitted to a trial by jury. The jury acquitted appellant on the two offenses alleged to have taken place in January of 1970, and returned a verdict of guilty on the statutory rape of Rebecca Gentry alleged to have taken place in August of 1969. Appellant was sentenced to two to twenty-one years in prison. He bases his appeal on two grounds: one, that the evidence at trial was insufficient as a matter of law to sustain his conviction, and two, that he was deprived of a fair trial as guaranteed to him by the Due Process Clause because of the alleged misconduct of the prosecutor during his trial.

Testimony concerning the offense for which appellant was convicted was given by Rebecca Gentry. She testified that on August 1, 1969, she went to the Spencer Fair with appellant, her brother and her sister, Brenda Gentry. After attending the fair they all went to some cabins owned by the appellant located nearby to spend the night. Rebecca's brother went to one of the smaller cabins and she and her sister Brenda shared a bed in the bedroom of appellant's cabin. Appellant slept on an extra bed in the living room of the same cabin.

Rebecca was awakened by appellant later that same night getting into bed with her. Appellant began to kiss her. She testified that she attempted to resist appellant but that he held her arms. Appellant than pulled down the pajamas Rebecca was wearing and had sexual intercourse with her. She testified that appellant, 'put his penis in my privates'. Rebecca further stated that Brenda then began to stir and appellant got up and went back to the living room. Rebecca testified that she was fifteen years old at the time of the incident.

The statute with which we are concerned here provides in part, 'whoever has carnal knowledge of a . . . female child under the age of sixteen years . . . is guilty of rape.' (Burns § 10--4201). At the outset we should again establish our function as an appellate court in appeals of this nature. On such an appeal which contests the sufficiency of the evidence this Court will not weigh the evidence nor resolve questions concerning the credibility of witnesses, but will look to that evidence and the reasonable inferences therefrom which support the verdict of the jury. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558. We are required to insure that there is evidence of probative value on each element of the offense from which a jury could infer that appellant was guilty beyond a reasonable doubt. Turner v. State (1972), Ind., 287 N.E.2d 339.

The testimony of Rebecca Gentry concerning an act of sexual intercourse with appellant at a time when she was fifteen years old clearly establishes the elements of the offense charged. Appellant, however, asserts that the age of the victim and certain contradictions in her testimony concerning the dates of the other offenses charged brings her within the rule of Meadows v. State (1968), 252 Ind. 1, 238 N.E.2d 281, and makes her testimony, standing alone, insufficient as a matter of law to sustain his conviction. The Meadows case concerned a sole prosecuting witness who had been committed to a mental institution and who alternately testified from the stand that the defendant had and had not done the illegal acts charged. These facts of the Meadows decision are obviously not analogous to the facts here. The witness in the case at bar has never been admitted to a mental institution, nor did her testimony concerning the substantive facts upon which the appellant was convicted ever conflict or deviate in any way. It has long been held in Indiana that the testimony of a victim under sixteen, even though uncorroborated, is of itself sufficient evidence to sustain a conviction for rape, provided each and every material element of the crime charged was contained in her testimony. Grimm v. State (1970), 254 Ind. 150, 258 N.E.2d 407; Montgomery v. State (1967), 249 Ind. 98, 229 N.E.2d 466; Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649.

Appellant next asserts that the trial court erred in not granting a mistrial because of the alleged misconduct of the prosecutor. Appellant contends that the prosecutor's misconduct during the trial was in its totality so repetitious and prejudicial as to deprive appellant of a fair trial as guaranteed by the Due Process Clause and that the trial court should have declared a mistrial. Appellant's claims seem based primarily on one specific incident concerning the recall of a State's witness by the prosecutor for the purpose of changing her testimony, and two general areas: the consistent use of leading questions and the continued use of questions which could call for hearsay testimony. We shall deal with the specific ground first and the two general areas last.

The first time Rebecca Gentry testified at this trial she stated that on the night of January 30, 1970, she and her sister Brenda went skating at Johnnie's Skating Rink located near appellant's cabins in the company of appellant. Toward the end of the State's case Rebecca was recalled to the stand by the prosecutor and changed that part of her original testimony concerning the activities of the night of January 30, 1970. She stated that she had been mistaken in her original testimony and that they had gone shopping in Bloomington that night and did not attend Johnnie's. According to Rebecca she became confused because on other week-ends she stayed at appellant's cabins after they had gone skating at Johnnie's. She did, however, reaffirm her previous testimony concerning the alleged assault on her by appellant on that date. On cross examination appellant's counsel established that the prosecutor had approached Rebecca after her original testimony and ask her if she was certain they had attended Johnnie's that night. Rebecca asked her sister and then recalled that Johnnie's had been closed and they had gone to Bloomington instead.

Appellant asserts that his motion for mistrial made at that point should have been sustained because the witnesses Rebecca and Brenda had violated the court's order prohibiting the discussion of testimony among witnesses, and that the prosecutor had acted incorrectly in approaching Rebecca and asking her about her testimony. It might be pointed out that technically the order was not violated since it applied only to witnesses who had not yet testified and both Rebecca and Brenda had already testified when the conversation about Johnnie's took place. In any event it can hardly be said that the remedy for a violation of this court order, if indeed there was one, is a mistrial. There is no reason why this testimony should not be admissible much less require a reversal of a conviction. The jury was completely informed of the conversation between the witnesses after Rebecca's original testimony and was given adequate information by which it could judge the reliability and credibility of the revised testimony. All of this is in complete accord with the jury's prime function of determining the weight which testimony should be afforded. If the trial court found that the conversation between Rebecca and Brenda had violated its order it could take appropriate steps to enforce it or punish its violation, but it cannot be said that...