Lewis v. State
Decision Date | 27 October 1982 |
Docket Number | No. 382S107,382S107 |
Parties | Dennis Luther LEWIS, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Patrick N. Ryan, Jack B. Welchons, Ryan & Welchons, Marion, for appellant.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged in two counts. Count I was for Rape and Count II for Confinement. He was tried before a jury and found guilty on each count. He was sentenced to a twenty year term for rape and a six year term for confinement. The terms are to run concurrently.
On the evening of February 16, 1981, the victim of the crime, B.R., was working at her job as a clerk in the Interstate Auto Auction in Anderson. Sometime that evening B.R.'s girlfriend, one Becky Hilligoss, introduced B.R. to appellant. Ms. Hilligoss suggested that after the auction was closed she, B.R., appellant and Ms. Hilligoss's boyfriend, one John Moriarity, go out for a drink. B.R. agreed. When the auction closed the four rode in Moriarity's truck to a nearby motel bar.
At the bar, B.R. danced with appellant at his request on four or five occasions. She testified he kissed her several times during their stay at the bar. She said nothing to indicate her disapproval of his advances but did frown at him and thought he would understand that she disapproved of his actions. At some point B.R. called her husband at home to let him know where she was but did not mention appellant.
After an hour and a half or so the four left the bar and went to a coffee shop to get some breakfast. During their stay at the coffee shop B.R. told Ms. Hilligoss she felt appellant was "coming on too strong." She admitted she did not verbally manifest this feeling to appellant. At that point she did not feel herself to be in any danger.
After finishing their meal the four rode back to the auction parking lot where B.R.'s and appellant's cars were parked. B.R. testified that on the way back to the auction appellant kissed her on the mouth. She testified she again did nothing to indicate disapproval, though she did not want him to do that. She also testified at one point appellant slipped his hand inside her blouse and placed it on her stomach. She responded by removing his hand and placing it on the armrest of the truck.
When they arrived at the parking lot, B.R. and appellant got out where her car was parked. Moriarity drove off immediately and B.R. and appellant talked for a while outside her car. B.R. testified appellant kissed her on the mouth at least twice during this time. She testified she still did not verbally manifest any disapproval of his acts and that she did not consider herself in any danger. John Moriarity came back to the site once to ask her if she was all right, to which she said yes.
After Moriarity drove off appellant began kissing B.R. again and put his hand between her legs on the outside of her blue jeans. She testified she removed his hand and he continued to put it back in the same place. She testified she didn't "shout" at him but that "I tried to make it perfectly clear that I didn't want him to do that." Finally, while they were still outside the car appellant put his hand inside her blue jeans and underpants and inserted his finger in her vagina. She testified she tried to pull his hand out but couldn't. He then pushed her inside the car. She grabbed the steering wheel and honked the horn to attract attention but appellant knocked her hand off the horn. She then told him if he didn't stop she would have him arrested. While on top of B.R. and after unsuccessfully attempting to unfasten her belt, appellant drew out a pocketknife and exposed the blade.
While holding the knife so the blade was pointing at B.R.'s stomach he twice ordered her to remove her pants. She complied and he proceeded to perform cunnilingus on her. Then he climbed on top of her and had sexual intercourse with her. B.R. testified that during this time she was fearful of her life and did not physically resist him. She also testified she was crying during these acts and covered her face with her hands. Appellant left the scene quickly and B.R. drove directly to the police station and reported the incident.
Appellant took the witness stand and admitted the acts of oral sex and intercourse occurred but stated B.R. consented to the acts. He testified she never said anything to disapprove of his advances and that her physical responses were such that he believed she approved. He testified at the auction parking lot he did let her see his pocketknife but only when he used it to clean his fingernails and to clean the dirt out of the cracks in her steering wheel while they talked. He said he never threatened her with the blade. He testified that after kissing her for a while he proposed they engage in intercourse and she agreed. He testified she seemed to enjoy the whole episode and expressed a willingness to see him again the next time he was in town.
Appellant claims the evidence is insufficient to support the conviction for rape because there was no evidence of force or threats on his part nor was there any evidence of resistance on her part.
We do not weigh the evidence nor judge the credibility of witnesses. Gilmore v. State, (1981) Ind., 415 N.E.2d 70.
Appellant's claim that the evidence shows no force or threat of force is without merit. Appellant asserts in previous cases decided by this Court where an attacker was armed with a knife we have required actual verbal threats to accompany the showing of the knife to establish use or threat of force. Force or threat of force may be shown even without evidence of the attackers oral statement of intent or willingness to use a weapon and cause injury, if from the circumstances it is reasonable to infer the attacker was willing to do so. For example, in Jenkins v. State, (1978), 267 Ind. 543, 545, 372 N.E.2d 166, 167, we said: "Force need not be physical or violent but may be implied from the circumstances ...." See also, Ives v. State, (1981) Ind., 418 N.E.2d 220 ( ); Zollatz v. State, (1980) Ind., 412 N.E.2d 1200 ( ); Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d 978 ( ).
As to resistance, appellant asserts there is no evidence of resistance on B.R.'s part. In the first place, resistance is not an element of rape. Stowers, supra. However, in the case at bar, as above shown, the victim did, in fact, resist. This Court has recognized there is no requirement a woman scream or physically resist intercourse when she can reasonably believe that such resistance might endanger her life. Dixon v. State, (1976) 264 Ind. 651, 348 N.E.2d 401; Ballard v. State, (1979) Ind., 385 N.E.2d 1126.
B.R. testified she was afraid to resist when appellant showed her the knife and held it pointed at her stomach while twice commanding her to remove her jeans. We find there is sufficient evidence before the jury to support their finding that there was sufficient resistance to show the act was nonconsensual.
Appellant argues that consideration should be given to B.R.'s alleged lack of resistance because of her conduct up to the time she and appellant were left alone in the parking lot. It is not our duty to pass judgment on the wisdom or lack thereof shown by B.R. in becoming involved in this situation in the first place. The fact remains the evidence is sufficient to show she submitted to intercourse with appellant because he threatened the use of force if she did not. Whatever appellant may have believed about B.R.'s feelings toward him up to the time he put his hand on the outside of her jeans, her words and her acts after that point should have left no doubt in his mind she did not want to have sexual relations with him. The essential elements of the crime of rape are present and shown by the evidence.
Appellant also argues the evidence is insufficient to support the conviction for confinement. He centers his argument on testimony he elicited from B.R. on cross-examination to the effect that she made no attempt to flee the car after she was forced inside.
I.C. Sec. 35-42-3-3 [Burns 1979 Repl.] defines confinement, in relevant part, as follows:
I.C. Sec. 35-42-3-1 [Burns 1979 Repl.] defines "confine" as "to substantially interfere with the liberty of another person."
There is ample evidence in this record from which the jury could find appellant interferred with B.R.'s liberty and that she did not consent to this interference.
Appellant claims the trial court erred in applying the Rape Shield statute, I.C. Sec. 35-1-32.5-1 [Burns 1979 Repl.] to exclude certain evidence from consideration by the jury. Prior to trial the prosecutor made a Motion in Limine based on the statute to prohibit appellant from "stating, suggesting, arguing, testifying, or asking questions tending to suggest, by implication or otherwise, that the victim in this case, [B.R.], was engaged in extramarital intercourse, affairs, or activities...." This motion was granted by the trial court.
When appellant attempted to ask B.R. a question about her faithfulness to her husband, the trial court enforced the statute by prohibiting any such questioning. The jury was admonished not to consider the question asked nor its prospective answer in their deliberations. When B.R.'s husband was later called to the stand, on cross-examination, he testified that to his knowledge she had never concealed from him any information that would be important to their...
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