Kuchel v. State

• Decision Date: 30 April 1991
• Docket Number: No. 50S00-8808-CR-765,50S00-8808-CR-765
• Citation: 570 N.E.2d 910
• Court: Indiana Supreme Court
• Parties: Charles KUCHEL, Appellant, v. STATE of Indiana, Appellee.

Page 910

570 N.E.2d 910

Charles KUCHEL, Appellant, v. STATE of Indiana, Appellee.

No. 50S00-8808-CR-765.

Supreme Court of Indiana.

April 30, 1991.

James N. Clevenger, Kizer, Neu, Joyce, Wyland, Humphrey, Wagner & Gifford, Plymouth, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Appellant initially was charged in a forty-five count information with multiple offenses stemming from a series of sex-related attacks perpetrated upon three different women during the summer of 1983. A jury trial resulted in his conviction of twenty of the counts alleged; that judgment was reversed by this Court on direct appeal. Kuchel v. State (1986), Ind., 501 N.E.2d 1045.

In 1988 appellant was retried to a jury on those twenty counts and was convicted of seventeen counts as follows: two counts of Criminal Deviate Conduct, a Class A felony; five counts of Battery, a Class C felony; one count of Criminal Recklessness, a Class C felony; two counts of Intimidation, a Class C felony; one count of Criminal Confinement, a Class D felony; two counts of Intimidation, a Class A misdemeanor; one count of Causing an Offense, a Class A misdemeanor; and three counts of Battery, a Class B misdemeanor. He was sentenced to the presumptive term for each felony count and to one-half the maximum term for each misdemeanor count. The first criminal deviate conduct count was enhanced by thirty (30) years by reason of a finding of habitual offender status, and all terms were ordered served consecutively for a total sentence of one hundred thirty-four (134) years and ninety (90) days. This is a belated direct appeal from that judgment.

The facts are: In the spring of 1983, appellant met P.K. at the truck-stop restaurant where she worked near Plymouth, Indiana. On or about their third date, after P.K. refused his request to be fellated, appellant, who was armed with a Bowie knife, removed her coat, grabbed her by the hair forcing her head down between his legs, and compelled her to perform fellatio. He later drove her home and threatened she would "pay dearly" if she ever told anyone of the incident. On other occasions while in the presence of other men, appellant lifted or cut open P.K.'s shirt thereby exposing her breasts, bragging that he was an "outlaw" and could do whatever he wanted, whenever he wanted, and threatened harm to P.K.'s family and sons if she ever caused him trouble.

One night in June of 1983, P.K. left a tavern in Plymouth and found appellant and his friend, Jerry Cook, sitting in her car. Appellant grabbed P.K., said she was his "old lady," and ordered her to fellate him. When she begged not to, he banged her head against the car window and forced her to do it while his friend laughed. While leaving, appellant told P.K. that if she reported him to the authorities, he would slit the throats of her parents and children and perform anal sex on her mother.

One evening in August of 1983, P.K. and appellant were in a tavern and when he started making a scene about being an outlaw, P.K. left on foot. Appellant pursued her, forced her into his car and drove out into the country. There, in Cook's presence, appellant slit open P.K.'s top and forced her to undress in the car headlights. He dropped his knife on her foot, nearly severing her toe, and made her turn around in circles. He then threw her in the car and drove back to Plymouth, where she jumped from the moving car and escaped, appellant trying to run her down in the process.

In June of 1983, appellant met P.M., a co-worker of P.K., at a tavern and they all went to a truck stop for breakfast. After P.K. and P.M. argued, P.M. left with appellant. They drove out to a lake, where appellant showed her his knife, threatened to rape or kill her and grabbed P.M.'s breasts and her genital area and indicated she was not free to leave. He eventually took her back to the truck stop, twice pinching her breasts very hard before letting her out.

Appellant met R.F. in the early summer of 1983. At a tavern in Plymouth, he pulled up her shirt against her will and exposed her breasts to the bartender and later that evening repeated this act outside the tavern in front of a deputy sheriff. Appellant told R.F. that evening that she was going to be his "old lady" forever. On another occasion, as appellant was driving R.F. to Warsaw, Indiana, he pulled off the road and, grabbing R.F. by the hair, forced her to fellate him. Another time, appellant refused to allow R.F. to leave a party on her own and, saying he would have to "tame" her, struck her very hard on the head.

On a later occasion, appellant and two friends picked up R.F. as she was walking and drove out on Birch Road in Marshall County. Appellant wanted her to have sex with all three of them; she dissuaded him from that, but appellant, wearing his Bowie knife and threatening to use it, forced her to submit to sexual intercourse on the hood of the car and then performed cunnilingus on her while his friends watched. On yet another occasion, R.F. testified, appellant forced her to stay with him at a friend's house for three days, taking away her car keys and forcing her to have sexual intercourse against her will. When she finally convinced him to let her leave, he told her to return by a certain time or he would kill her. At home, R.F. began crying and told her mother about appellant's treatment of her; they subsequently contacted the Warsaw Police Department. The investigation ensuing from R.F.'s complaint as well as from subsequent allegations made by a fourth woman, M.Y., culminated in the instant charges.

Appellant contends the trial court erred in denying his motion to dismiss Counts 1, 2, 3, 6, 7, 11, 12, and 13 for lack of evidence of proper venue in Marshall County. Counts 1, 2, and 3 were charges of criminal deviate conduct, battery and intimidation stemming from the incident where appellant grabbed P.K. by the hair, forced her to perform fellatio and threatened she would "pay dearly" if she told anyone. Counts 6 and 7 were criminal recklessness and battery charges arising out of the incident where appellant cut P.K.'s toe with his knife. Counts 11, 12, and 13 were two counts of battery and one of criminal confinement arising from the incident where appellant told P.M. she was not free to leave his truck and then grabbed her breasts and her genital area.

In Indiana, a criminal defendant has the right to be tried in the county where the crime was committed. Ind. Const. art. I, Sec. 13; Ind.Code Sec. 35-32-2-1; Sears v. State (1983), Ind., 456 N.E.2d 390. Appellant argues the evidence as to Counts 1, 2, and 3 shows these offenses occurred at the same location as those pertaining to Counts 6 and 7, which undisputedly occurred in Starke County. However, regarding his citation to the record in support wherein P.K. testified the toe-cutting incident occurred when appellant took her "right back to the property he had taken me to before," it is unclear that the prior occasion P.K. is referring to involved the offenses charged in Counts 1, 2, and 3. Conversely, evidence that those counts were perpetrated at a country lot where appellant had formerly resided and that this lot is located in Marshall County is clear and sufficient to support by a preponderance the trial court's findings that Counts 1, 2, and 3 had proper venue in Marshall County. See Boze v. State (1987), Ind., 514 N.E.2d 275.

The offenses charged as Counts 6 and 7 occurred in a field approximately one and one-half miles west of the Starke-Marshall county line in Starke County. Citing Stone v. State (1988), Ind., 531 N.E.2d 191 and Kuchel, supra for the proposition that where a crime commences in one county and is continued into adjoining counties the charges may be brought in any of the involved counties, the State argues that because appellant, after making an abusive telephone call to the victim, picked her up at her parents' home in Marshall County and then drove her to a tavern in Starke County where their altercation commenced, Counts 6 and 7 were part of a continuous chain of events beginning in Marshall County and continuing into Starke County such that venue would be proper in either county.

This is borne out by P.K.'s testimony that she went with appellant because of his threats to her and her family. The jury was justified in finding that this was a continuing abuse of P.K. which was begun in Marshall County.

Appellant cites Sears, supra; there, however, we held venue for the deviate conduct charge was not proper in the forum county, where the defendant picked up the victim, because the evidence showed that the victim went of his own free will and that the crimes perpetrated upon him occurred entirely within the adjoining county. Thus, Sears is inapplicable to the case at bar.

Counts 11, 12, and 13 were charges of battery and confinement arising from the incident where P.M. left a truck stop located in Starke County with appellant, who then drove to a lake and, after informing P.M. she was not free to leave his truck, grabbed her breasts and her genital area. Appellant testified, and now maintains, that the lake was Eagle Lake located in Starke County. However, P.M. and a deputy sheriff testified the lake described by P.M. was Flat Lake located in Marshall County. The trial court had before it sufficient evidence to find proper venue in Marshall County. See Boze, supra. The evidence supports the trial court's finding that venue for all charges properly lay in Marshall County.

Appellant contends the trial court erred in denying his motion for a directed verdict of acquittal as to Counts 1, 11, 12, 18, and 19 due to an insufficiency of evidence as to involvement of a deadly weapon such as to elevate the counts to a more severe felony classification. As per Ind.Code Sec. 35-42-4-2, Count 1 charged criminal deviate conduct as a Class A felony for having been committed upon...