Loman v. State

• Decision Date: 08 September 1976
• Docket Number: No. 475S110,475S110
• Parties: Harold LOMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 205

354 N.E.2d 205

265 Ind. 255

Harold LOMAN, Appellant, v. STATE of Indiana, Appellee.

No. 475S110.

Supreme Court of Indiana.

Sept. 8, 1976.

Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Harold Loman, was found guilty, on May 24, 1960, of rape of a female child under the age of twelve years. Ind. Code § 35--13--4--3 (Burns 1975). Pursuant to statute, he was sentenced to life imprisonment. On November 7, 1974, a petition for post-conviction relief filed by the Appellant was denied. An appeal from this denial was subsequently perfected. On June 13, 1975, the Appellant filed a 'Motion to File a Belated Supplementary Motion to Correct Errors', requesting permission to consolidate a belated appeal with the appeal from the denial of post-conviction relief. This motion was granted by the trial court. This court, since no direct appeal had been taken in this case, granted the Appellant's 'Petition for Writ of Certiorari to Amend the Record of the Proceedings' on January 29, 1976, thereby consolidating the two appeals.

I.

We look first to the contention of the Appellant that his conviction was not supported by sufficient evidence. At trial, the State presented as a witness the victim of the alleged crime. Then the stepdaughter of the Appellant, she was eleven years old on the date of the incident, December 29, 1958. The events of the rape were recounted by the victim in terms which we need not repeat. It is enough to say that penetration by the Appellant was established.

Dr. Henry Fisher, a physician engaged in the general practice of medicine, examined the victim on January 5, 1959. The doctor testified that his examination revealed some tearing of the tissues in the girl's vaginal area, indicating at least partial penetration. The victim's mother testified that on December 30, 1958, she discovered that her daughter had been bleeding from the vaginal area during the previous night. She initially thought that her daughter had begun her menstrual period. On January 3, 1959, her daughter told her of the incident.

' A conviction of rape may be sustained solely on the testimony of the prosecuting witness. Smith v. State (1971), 255 Ind. 687, 266 N.E.2d 216.' Beard v. State, (1975) Ind., 323 N.E.2d 216 at 218. In this case, the testimony of the victim was corroborated in part by a physician who examined her and in part by her mother. The Appellant suggests that the corroboration provided by the doctor was minimal, and that portions of the testimony of the victim's mother were 'highly questionable.' An appellate court, however, cannot weigh the evidence or judge the credibility of witnesses. In determining whether the verdict is supported by sufficient evidence, we look at the evidence most favorable to the State and the reasonable inferences to be drawn from that evidence. The verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Young v. State, (1975) Ind., 332 N.E.2d 103; Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686; Jackson v. State, (1971) 257 Ind. 477, 275 N.E.2d 538. There was sufficient evidence here.

II.

The Appellant also contends that he was represented by ineffective trial counsel. This contention is supported in part by arguments that the Appellant was not sufficiently advised of his constitutional right to a trial by jury and that evidence of prior convictions of the Appellant was erroneously admitted into evidence.

The contention of the Appellant that he was not sufficiently advised of his constitutional right to a jury trial does not stand in the face of the record. At the hearing on his petition for post-conviction relief, the Appellant testified that his attorney had not discussed with him his right to a jury trial, and that he felt he would have had a fairer trial if it had been by jury. The record reveals, however, that the trial court advised the Appellant directly of his right to a jury trial at his arraignment. He had not, at that time, secured counsel and the arraignment was continued. At the resumption of the arraignment, defense counsel was asked whether a jury trial was desired. It was indicated that this had not yet been determined. We also note that the Appellant's prior convictions, whether or not they were admissible into evidence, indicate that the Appellant was not stranger to the judicial process.

Correspondence between the Office of the Public Defender and the Appellant, admitted into evidence at the post-conviction relief hearing, stated that the Appellant's trial counsel unequivocally denied forcing the Appellant to waive a jury trial. He explained that his decision to suggest a bench trial was made for two reasons: (1) his view of the nature of the case and the evidence to be elicited; and (2) his judgment that a jury would be prejudiced by a trial of this nature more than a seasoned criminal judge would be. This court does not second-guess trial tactics or strategy. Greer v. State, (1975) Ind., 321 N.E.2d 842. We find no evidence of incompetence here.

The Appellant also testified at his post-conviction relief hearing that his attorney had failed to subpoena his sole alibi witness, the Appellant's former employer, and that the presentation of a complete defense was thus prevented. It is undeniably true that this witness was not subpoenaed. However, the correspondence mentioned above between the Public Defender's office and the Appellant states that defense counsel interviewed the prospective witness and found that his testimony would not establish an alibi. His subsequent failure to subpoena the witness, obviously, does not indicate ineffective or incompetent representation.

The failure of the Appellant's trial counsel to object to cross examination of the Appellant regarding a prior embezzlement conviction also provides no support for the conclusion that he was incompetent. The embezzlement conviction was admissible for impeachment purposes. Under the law in effect at the time of the Appellant's trial, a conviction for any crime, whether it be a felony or misdemeanor, was admissible as affecting his credibility. Dexter v. State, (1972) 260 Ind. 608, 297 N.E.2d 817. Even under the limitations imposed in Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210, held to not have retroactive application in Dexter v. State, supra, the Appellant's embezzlement conviction was admissible for impeachment purposes since it was an offense involving dishonesty.

The questioning of the Appellant by his trial counsel brought out a 1949 sodomy conviction which had been vacated prior to the rape charge. In addressing this issue, we will accept the finding of fact by the judge who conducted the Appellant's post-conviction remedy hearing. He wrote, without citation, that the sodomy conviction had been vacated prior to the Appellant's rape trial.

If the conviction for sodomy had been brought out by the State, without showing that it had already been vacated, we would have more concern for the claimed error. Of course, a prior conviction for sodomy would have some relevance in a case involving 'depraved sexual conduct.' Kerlin v. State, (1970) 255 Ind. 420, 265 N.E.2d 22. But that is not the question here. The admission of the evidence here is raised to prove incompetence of counsel.

As already noted, we cannot second-guess the tactics of defense counsel. It is well-known that many times counsel will draw out from a witness on direct examination any weaknesses, such as prior convictions, in order to defuse the impact of having them revealed by opposing counsel on cross-examination. And one mistake does not show incompetence of counsel....