Holland v. State

• Decision Date: 10 November 1976
• Docket Number: No. 2--775A167,2--775A167
• Parties: Howard HOLLAND, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 686

356 N.E.2d 686

171 Ind.App. 276

Howard HOLLAND, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--775A167.

Court of Appeals of Indiana, First District.

Nov. 10, 1976.

Rehearing Denied Dec. 17, 1976.

John E. Eisele, Anderson, Robert W. York, Indianapolis, for defendant-appellant.

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

LOWDERMILK, Judge.

STATEMENT OF THE CASE:

The instant case was transferred to this office from the Second District in order to lessen the disparity in caseloads among the districts.

Defendant-appellant, Howard Holland (Holland) was charged with having committed the crime of rape. ¹ He was convicted following a jury trial of the lesser included offense of assault and battery with intent to commit a felony, to-wit: rape. ² Following the denial of Holland's motion to correct errors this appeal was perfected.

We affirm.

FACTS:

The facts necessary for our disposition of this appeal are as follows: On August 23, 1974, the prosecutrix, Paula Brown, was living in an apartment with Bruce Brown. Responding to a knock at the door, she permitted Debbie Brown (Bruce Brown's ex-wife) and Holland to enter her apartment. While in the apartment, Holland grabbed Paula from behind. He put his hand over her mouth, removed a piece of electrical cord from his pocket, and bound and gagged her. Holland then carried Paula into the bedroom, removed her blue jeans and underwear, and had intercourse with her several times. Later, at the request of Holland, Debbie untied Paula's hands and the gag was removed, but shortly thereafter Paula's hands were retied to the bedpost. Holland again had intercourse with Paula. Paula testified that she did not physically resist Holland's advances or scream out because at first she was unaware that Holland wanted to rape her, and later she was crying and was too scared to resist. She testified there was a loaded rifle in the bedroom in plain view.

ISSUES:

1. Whether the trial court's failure to grant a motion for judgment on the evidence at the close of the State's case, and again at the close of all the evidence, was contrary to law.

2. Whether Holland was denied a fair trial because of prosecutorial misconduct.

3. Whether the verdict is supported by sufficient evidence.

DISCUSSION AND DECISION:

ISSUE ONE:

Holland argues that the State failed to prove that Paula did not consent to the intercourse, therefore the trial court erred in not granting his motion for judgment on the evidence at the close of the State's case-in-chief and again at the close of all the evidence.

Holland is correct in his contention that to sustain a conviction of rape, or assault and battery with intent to commit a felony, to-wit: rape, the State must prove beyond a reasonable doubt that the attack was forcible and against the will of the victim. Dewey v. State (1976), Ind., 345 N.E.2d 842; Rahke v. State (1907), 168 Ind. 615, 81 N.E. 584. However, the required resistance need not take the form of an actual attempt to escape or to fight off the attacker in every conceivable set of circumstances. Carroll v. State (1975), Ind., 324 N.E.2d 809. The necessity of actual physical resistance can be negated by a showing that the attacker used threats of bodily injury, or conducted himself in such a manner by the use of physical force that the will of the victim to resist was overcome. Beard v. State (1975), Ind., 323 N.E.2d 216; Hendley v. State (1974), Ind.App., 311 N.E.2d 849.

The record discloses the following facts which are inconsistent with Holland's contention that Paula consented to his advances. Holland grabbed Paula from behind. With the help of Debbie, Paula was gagged and her hands were tied behind her back. Holland then carried Paula to the bedroom, removed her blue jeans and underwear, and had intercourse with her. Holland did not leave the bedroom. Paula's hands were untied briefly only to be retied to the bedpost. Holland again had intercourse with her. When the gag was removed from Paula's mouth she did not scream out because she testified she was crying and was afraid. There was a loaded rifle in the bedroom in plain view. She testified that this was one of the reasons she did not resist Holland, and at no time did she consent to his advances.

We hold that Holland's physical manipulation and abuse of Paula was such that her will to resist was overpowered, therefore, actual physical resistance on the part of Paula was not required. For the reasons cited above, we likewise find no merit in Holland's third assignment of error that the verdict of the jury is not supported by sufficient evidence on one of the elements of the crime of which he was charged--lack of consent.

ISSUE TWO:

Holland argues that he was denied a fair trial because of prosecutorial misconduct during closing arguments in referring to him as an 'animal,' and in commenting inferentially upon his failure to take the witness stand as follows:

'. . . This case boils down as to where Paula Wilson Brown testimony is worthy of your belief. That's the only issue, because there has not been one iota of evidence presented.'

'. . . Now as I say there is no conflict in evidence here to talk about. In fact, I'm really, I'm at kind of a loss because I think maybe this is the first case that I have ever tried where there wasn't at least some conflict in evidence that I can get up here and argue about. I can't argue there isn't. It's all laid out, all laid out. There's not ways that the testimony that came before you (has) been disputed in any manner other than an attack supposedly upon Paula's testimony as that she is not worthy of your belief, that's the only testimony. . . .'

'. . . But there's no evidence in this one. None, no evidence. So of course that scale going all the way down. The State is the only one who has presented evidence here. . . .'

As authority for his position Holland cites this court to the case of Hadley v. State (1975), Ind.App., 332 N.E.2d 269. (Transfer denied.)

We find it unnecessary to reach the merits of Holland's argument because he has failed to preserve any error for our review. The record discloses that when the remarks presently complained of were made by the prosecuting attorney Holland failed to object and request the court to admonish the jury to disregard the prejudicial remarks. Therefore, Holland has waived any claimed error which may have been occasioned by the prosecuting attorney's remarks during closing argument.

In Bradburn v. State (1971), 256 Ind. 453, 269 N.E.2d 539, our Supreme Court, at pp. 541 and 542, disposed of Holland's argument as follows:

'Appellant first contends that reversible error occurred at trial when, in final argument the prosecutor made certain allegedly prejudicial and improper statements. The challenged language was delivered partially in the closing argument and partly in the rebuttal argument. As we comprehend appellant's contention, the statements taken together constitute a comment upon his failure to testify so prejudicial as to constitute reversible error. . . .

'The question then is whether this utterance under the circumstances here in question requires a reversal of his conviction.

'An appellant points out Article 1 § 14 of our Indiana Constitution allows a criminal defendant to remain silent. Of course, the federal constitution contains similar safeguards which have been found to be binding upon the states. Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Also pertinent is Ind.Ann.Stat. § 9--1603 (1956 Repl.), I.C.1971, 35--1--31--3, which provides that no comment shall be made upon the failure of a criminal defendant to testify. Similar protection is afforded under the federal constitutional grants of protection. Griffin v. California, supra; Stewart v. United States (1961), 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84.

'As appellant acknowledges, it is the rule that objection must be made at trial to comments such as those here in question if they are to be made available for appellate review. . . . (Citations omitted).

'No objection was made at trial to the prosecutor's statement at the time it was delivered.

'Appellant points out, however, that the alleged error was raised in the motion to correct errors thereby giving the trial court an opportunity to consider and correct it. This, we find, overlooks the reason for the requirement of an objection. It is to provide the court with an immediate avenue of correction without the need to begin the entire trial process anew at great loss of public judicial resources. If the trial court finds merit in the contentions of the objection it can admonish the jury or censure the prosecuting attorney.

'Appellant cites Hayden v. State (1964), 245 Ind. 591, 199 N.E.2d 102, cert. den., 384 U.S. 1013, 86 S.Ct. 1926, 16 L.Ed.2d 1034 as demonstrative of an exception to the rule requiring an objection. It is true that Hayden acknowledges the possibility that the rule might not apply where the error is obvious on the record and...