Lambert v. State, 1285S520

• Decision Date: 15 December 1987
• Docket Number: No. 1285S520,1285S520
• Citation: 516 N.E.2d 16
• Parties: Michael LAMBERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 16

516 N.E.2d 16

Michael LAMBERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1285S520.

Supreme Court of Indiana.

Dec. 15, 1987.

James C. Patterson, Stephen J. Senderowitz, Dolkart, Patterson & Senderowitz, Chicago, Ill., for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Following a jury trial, defendant Michael Lambert was convicted of criminal deviate conduct and rape, each as a class A felony, resulting in two concurrent 25-year sentences. Defendant's issues may be generally grouped as follows:

1. sufficiency of evidence;

2. failure to exclude victim's hearsay statements;

3. limitation of cross-examination.

1. Evidence Sufficiency

Defendant presents four specific arguments involving sufficiency of evidence. In addressing this issue, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Applying this standard, the evidence indicated that shortly after 1:00 a.m. on June 10, 1984, the prosecuting witness, B.S., left the residence she shared with her boyfriend and walked about 3 blocks to a gas station to buy some cigarettes. As she was returning home, a man grabbed her from behind, placing his arm tightly around her neck and mouth. As she attempted to scream, he threatened to kill her. He then dragged her under a tree, pushed her to the ground, and told her to kiss him. She complied. A sexual assault ensued, after which the man apologized, and B.S. stood and talked with her attacker for five to ten minutes. When she reached for her clothes, the man disappeared. She had been able to observe him because of a nearby street light. As she walked home, B.S. noticed a maroon van which appeared to be following her. Fearing that it might be the man who had assaulted her, she ran to her residence. Upon arriving, she went to the bathroom, brushed her teeth, and washed around her legs. Her boyfriend noticed that she was very upset, and upon his insistence, she told him that she had been raped. B.S. and her boyfriend then drove around looking for the suspicious van. After observing a similar-looking van parked in front of a house, they observed the defendant standing on the porch of the house. At that time, B.S. was unable to identify the defendant as her attacker because she could not get a good look at his face. B.S. and her boyfriend then returned home and reported the incident to the police. Upon their arrival, the police took B.S. over to the defendant's house, obtained a driver's license from him, and showed it to B.S. She then positively identified it as a picture of her attacker. Defendant was then arrested. Police investigation revealed that the grass under the tree where the victim claimed the attack took place had been crushed and the dirt had been disturbed. The backs of earrings and a shiny penny were found where the victim had said she lost them during the struggle. B.S. suffered a cut around her neck from her necklace when the attacker grabbed her around the neck. Another witness testified that she was awakened sometime after 1:30 a.m. when she heard and then observed a taller person grab a smaller person around the neck and a struggle ensue. Thinking it was two neighborhood boys walking home, she went back to sleep. A few days later, B.S. positively identified the defendant from a photographic display and then again at trial. She described her attacker as big, blond, about 6'2" or taller weighing about 230-250 lbs., strong, smelling of alcohol, wearing blue jeans and a red T-shirt with white or white lines on it. The description matched the defendant. At trial defendant presented several alibi witnesses testifying he was elsewhere during the time of the assault.

Defendant first argues that the evidence was insufficient to disprove his alibi defense. He correctly asserts that the State is required to prove defendant's presence at the time and place of the crime beyond a reasonable doubt. Smithers v. State (1979), 179 Ind.App. 324, 385 N.E.2d 466. However, an alibi defense does not place the State in the position of bearing a burden of proof greater than would otherwise be required. Merritt v. State (1978), 267 Ind. 460, 371 N.E.2d 382; Casterlow v. State (1971), 256 Ind. 214, 267 N.E.2d 552. Defendant presented a strong alibi defense in the form of several apparently disinterested witnesses whose testimony regarding defendant's whereabouts would have precluded his involvement in the crime. However, this Court on appeal cannot assess weight and credibility. Defendant's alibi evidence constituted an appeal to the jury to disregard the testimony of the prosecuting witness. Witt v. State (1933), 205 Ind. 499, 185 N.E. 645. As the determiner of witness credibility, the jury was free to disbelieve either the prosecuting witness or the alibi evidence. Jones v. State (1978), 267 Ind. 680, 372 N.E.2d 1182. We cannot substitute our appellate impressions for such jury credibility determinations. It was the jury's role to evaluate the evidence and the testimony of witnesses, and the jury was entitled to find against the defendant despite his alibi evidence. Martin v. State (1986), Ind., 490 N.E.2d 309. The uncorroborated testimony of a prosecuting witness may be sufficient to sustain a conviction, notwithstanding alibi evidence. Smith v. State (1985), Ind., 474 N.E.2d 71. We cannot conclude that the evidence was insufficient to disprove the alibi defense beyond a reasonable doubt.

Defendant next contends that because of substantial inconsistencies, the uncorroborated testimony of B.S., should be insufficient to convict.

It is well established that, notwithstanding an alibi defense, the uncorroborated testimony of a victim is sufficient to sustain a conviction for rape. Woods v. State (1985), Ind., 484 N.E.2d 3; Smith, supra; McCawley v. State (1980), 274 Ind. 137, 409 N.E.2d 594. We are here presented with a classic example of conflicting evidence which must be settled by the trier of fact. That there were conflicts in the testimony of the State witnesses which materially weakened its case does not alter the rules. Rosell v. State (1976), 265 Ind. 173, 352 N.E.2d 750.

This Court will override the jury's assessment of credibility only where the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. See, Burton v. State (1952), 232 Ind. 246, 111 N.E.2d 892; Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503; Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240. Although the credibility and weight to be accorded the testimony of the prosecuting witness is a matter upon which reasonable minds might well differ, we do not find it incredibly dubious or inherently improbable as a matter of law. Notwithstanding extremely persuasive argument by counsel, we do not agree that the inconsistencies here impair conviction based on uncorroborated testimony.

Defendant further contends that the evidence was insufficient to establish the threat or use of "deadly force" necessary to upgrade the crimes charged from class B felonies to class A felonies. "Deadly force" is defined by Ind.Code Sec. 35-41-1-7 as "force that creates a substantial risk of serious bodily injury." Serious bodily injury is "bodily injury that creates a substantial risk of death or that causes serious permanent or protracted disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ." Ind.Code Sec. 35-41-1-25.

The victim testified that she was grabbed around the neck and mouth from behind and held tightly, and threatened that if she screamed he'd kill her. The medical examination report showed she had an abrasion on her neck.

Defendant argues that deadly force was not used, and that the assailant's words did not amount to a genuine threat of substantial risk of death under the circumstances. He argues that there was no weapon, no threat of a weapon, no actual injury, and no perceived threat of injury. Citing Calbert v. State (1981), 275 Ind. 595, 418 N.E.2d 1158, 1160, defendant contends that, absent other physical injury, an idle threat to kill is insufficient to upgrade the crime from a class B to a class A felony.

The statutory language, construed literally, does not specify that a threat of deadly force must actually create a substantial risk of injury. Such risk must be shown where force is actually used, but not where such use is only threatened.

Calbert involved more than a threat to kill. Actual injuries were inflicted which were held to create a substantial risk of serious injury to the victim. It is true that, in dicta, we stated, "the statute requires a showing of more than an idle threat." However, the conviction was affirmed because the threats were uttered in a context in which the defendant was actually inflicting such injury. In the analogous case of Harper v. State (1985), Ind., 474 N.E.2d 508, we found that a verbal threat to kill, made while hitting and choaking the victim, was sufficient to sustain a conviction of rape as a class A felony. We similarly found proper evidence of a class A felony in Smith v. State (1983), Ind., 455 N.E.2d 606, in which the defendant not only threatened to kill but also placed his hand over the victim's mouth and nose, cutting off her ability to breathe and almost rendering her unconscious. Thus, Calbert, Harper, and Smith each involved the use of deadly force, rather than just the threat of such use. In contrast, a threat of deadly force alone, without its...