Howard v. State, 270S39
| Decision Date | 15 September 1971 |
| Docket Number | No. 270S39,270S39 |
| Citation | 272 N.E.2d 870,257 Ind. 166 |
| Parties | Marcia HOWARD, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Palmer K. Ward, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Martin C. Basch, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a conviction in the Marion Criminal Court, Division 1. Appellant was charged by affidavit with the crime of prostitution, which crime is defined in I.C.1971, 35--30--1--1, being Burns' § 10--4220:
'Any female who frequents or lives in a house or houses of ill fame, knowing the same to be a house of ill fame, or who commits or offers to commit one (1) or more acts of sexual intercourse or sodomy for hire, shall be deemed guilty of prostitution, and on conviction thereof shall either be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500); and imprisoned not to exceed 180 days or such person may be imprisoned in the Indiana women's prison not less than two (2) years nor more than five (5) years.'
Appellant was convicted upon trial by court.
Appellant alleges that the finding of the trial court is not supported by sufficient evidence and is contrary to law. In reviewing the allegation of insufficient evidence this Court will not weigh the evidence nor resolve questions of credibility of witnesses, but will look to that evidence and the reasonable inferences therefrom which support the finding of the trial court. Asher v. State (1969), Ind., 244 N.E.2d 89. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.
Specifically, the appellant alleges that:
'There is no credible evidence in the record to support the judgment of the Court that the appellant is in fact a female person.'
We cannot agree with appellant's allegation. State's witness, Police Matron Carline Davenport, testified that after appellant was arrested that she had searched the appellant, partially disrobed. She further testified that in her capacity as police matron she had seen the appellant in various stages of undress, and that in her opinion the appellant was a female person. Such evidence, uncontradicted, is clearly sufficient to sustain the finding of the trial court. We also note that the appellant's counsel as well as the prosecutor and each witness referred to the appellant as 'her' or 'she' indicating their belief that the appellant was a female person. Finally, the judge, as the trier of fact, had ample opportunity to observe ...
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Sumpter v. State
...introducing affirmative evidence on the point in the same manner in which other elements of the crime are established. In Howard v. State (1971), Ind., 272 N.E.2d 870, this Court accepted as sufficient the direct testimony of a non-expert lay witness as to her opinion of the defendant's sex......
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Sumpter v. State, 1-872A54
...defendant did not take the stand and there was no testimony, lay or expert, as to defendant's sex. The State argues that Howard v. State (1971), Ind., 272 N.E.2d 870, which also involved a conviction under Burns 10-4220, is dispositive of this issue. The court in Howard 'State's witness, Po......