Johnson v. State, 45S00-9012-CR-794
| Decision Date | 07 November 1991 |
| Docket Number | No. 45S00-9012-CR-794,45S00-9012-CR-794 |
| Parties | Robert Louis JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Charles E. Stewart, Jr., Appellate Public Defender, Crown Point, for appellant.
Linley E. Pearson, Indiana Atty. Gen. and Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Johnson was convicted by a jury on charges of criminal deviate conduct and robbery. The jury also found Johnson to be an habitual offender. He was sentenced to imprisonment for 35 years, enhanced by 30 years for being an habitual offender, for a total term of 65 years. He raises three issues for our review in this direct appeal:
(1) Whether there was sufficient evidence to sustain his convictions;
(2) Whether a sufficient chain of custody was established to permit the admission of a rape kit into evidence and to allow testimony by a serologist regarding that evidence; and
(3) Whether the trial court properly permitted the State to add a witness after the trial had started.
The facts presented during trial and most favorable to this judgment follow.
Late in the evening of January 7th, the victim, who was a retarded adult male, Bridgette Stewart, and the defendant Johnson's brother met at a lounge in East Chicago. Johnson was also in the lounge that evening. Stewart testified that during the course of the evening, Johnson danced with her and informed her of his intentions to harm the victim. Later the victim walked Stewart to her home several blocks away. Stewart testified that she left the victim there, entered her home, sat in a chair and quickly fell asleep. As the victim was leaving Stewart's home, he noticed Johnson riding his (the victim's) bicycle. The victim began to follow the defendant, who led the victim into the alley behind Stewart's home, threatened to kill him if he did not comply with Johnson's demands. The victim was forced to perform fellatio on Johnson and to submit to anal intercourse. At the conclusion of this attack, Johnson then demanded the two dollars that the victim had in his wallet and left.
Stewart testified that some time after having fallen asleep, she was awakened by pounding at her door. Upon answering the door, she found the victim wearing no pants and crying. He informed Stewart that he had been raped by Johnson. Police were summoned and the victim was examined at a local hospital.
In alleging that the evidence is insufficient to sustain his convictions, Johnson points to numerous discrepancies in the testimony given at trial, particularly the testimony given by the victim himself. In particular, Johnson notes that the victim testified that he went to the lounge with Johnson's brother and that Stewart met them there. Stewart testified, however, that she, Madden and the victim went to the lounge together. The victim also testified that Johnson forced him to perform oral sex for over an hour and to submit to anal sex for approximately an hour. Finally, Johnson attacks the credibility of the victim by noting that, although the victim testified that he was unable to see a knife in the darkness, he was able to identify Johnson.
It is the province of the jury to hear the testimony given by the witnesses and assess the truth and veracity of each witness. The jury's resulting decision will be overturned by a reviewing court only when such decision is based on testimony that is inherently improbable. Bedwell v. State (1985), Ind., 481 N.E.2d 1090. Such is not the case here.
The discrepancies in the evidence do not lead to the singular conclusion that the evidence given was inherently improbable and, thus, insufficient to sustain the conviction. After hearing the testimony and considering the mental capacity of the victim, the jury reasonably could have concluded that the discrepancies in the testimony were inconsequential. The jury similarly could have disregarded testimony with respect to the length of time involved in the attack after the prosecutor helped the victim clarify his testimony by noting that he had no watch, that the attack seemed to last a long time, and by concluding that any victim of a sexual attack is likely to be unable to give accurate lengths of time to the events of the attack. Finally, the jury may reasonably have inferred that, although the victim testified he could not see Johnson during the attack due to darkness, his identification of Johnson as his attacker was believable because he knew Johnson and had visited his home on several occasions. Immediately prior to the attack the victim had seen Johnson riding his bicycle into the alley in which the attack occurred.
In summary, there was sufficient evidence to allow the jury to conclude that Johnson was, in fact, the person who attacked and robbed the victim. We will not re-weigh the evidence and second-guess the jury's determination.
Johnson also alleges error based on the fact that the State failed to establish a sufficient chain of...
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