Lottie v. State, 779S200

CourtSupreme Court of Indiana
Citation273 Ind. 529,406 N.E.2d 632
Docket NumberNo. 779S200,779S200
PartiesRobert Earl LOTTIE, Appellant, v. STATE of Indiana, Appellee.
Decision Date23 June 1980

Harriette Bailey Conn (Mrs.), Public Defender, Kurt A. Young, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant, Robert Earl Lottie, was charged in the St. Joseph County Superior Court with rape, a Class B felony, in Count I; robbery, a Class A felony, in Count II; and robbery, a Class C felony, in Count III. The jury returned a verdict of guilty of rape, but not guilty of the robberies. The appellant was subsequently sentenced to a term of twenty years imprisonment by the court.

Appellant presents ten issues for our consideration in this appeal. Six of these issues relate to instructions given, refused, or modified by the trial court. The remaining issues concern an alleged error of the court in allowing a witness to testify, the sufficiency of the evidence and alleged error in sentencing.

The prosecuting witness, M.D., testified that she was twenty-five years of age. On January 22, 1978, she and a friend went to the Y-Knot Shack. Appellant Lottie came to their table, introduced himself, sat with them, and bought some drinks for them. He then paid for all of them to go into the back room for dancing. M.D.'s friend spent her time with other people. Lottie and M.D. danced and drank together. About 3:00 a. m., they were preparing to leave. M.D. said that Lottie asked her to come to his apartment to "smoke a joint," and she stated that he was going to show her how to play chess. They went through the kitchen and entered his apartment above the Y-Knot Shack. She was sitting at the kitchen table and Lottie was rolling "a joint" when he suddenly said he had bought her all of the drinks for a reason and that he was going to show her what that reason was. He beat her about the face and knocked her to the floor. He picked her up, took her to the bedroom and threw her on the bed where he continued to beat her. He then partially disrobed her and himself and had intercourse with her. Later, two other men came to the apartment and appellant forced M.D. to have intercourse with them. Lottie also had intercourse with her again, on two different occasions. After all of the men had fallen asleep, she was able to get dressed and leave the apartment. M.D. later told the police, her brother, and people at the hospital that she had been raped and beaten by Robert Lottie and identified a photograph of the appellant from several that were shown to her by the police.

Larry Huys, a forensic serologist, testified that M.D.'s panties contained semen and that vaginal swabs evidenced the presence of acid phosphatase, a component of semen. Dr. Luis Salazar examined M.D. at the emergency room of the hospital and said she had massive facial bruises, black and blue eyes, and stated that she told him she was beaten and raped. Several witnesses testified that she was beaten and raped. Several witnesses testified that she showed signs of having been beaten severely about the face and body. Several medical witnesses called by the State testified that evidence of semen and acid phosphatase from seminal fluid was found in the vaginal smears taken from M.D. Stephen Hathaway, a witness for the appellant, testified that he was a physician specializing in pathology at the South Bend Medical Foundation and that he examined one of the slides containing a vaginal smear and that he found no evidence of spermatozoa on that slide.


Among the final instructions given by the court was one which stated:

The term sexual intercourse means an act that includes any penetration of the female sex organ. Proof of emission is not necessary.

Appellant contends that the last line, "Proof of emission is not necessary," is not a part of the definition of rape, but refers to a matter of proof. He argues that the court accordingly usurped the province of the jury and unduly emphasized one element of evidence by including that line.

This instruction followed others in which the court had instructed the jury on the statute describing the crime of rape and on the elements that the State must prove to carry its burden. It was not necessary for the trial court to add the last line to this instruction; but neither was it improper or erroneous for it to do so. In Lynch v. State, (1974) 262 Ind. 360 at 364, 316 N.E.2d 372 at 375, we emphasized that "penetration, not ejaculation, is the essential element of the crime of rape. The presence or absence of spermatozoa in the victim's vaginal area is, of course, not determinative of penetration." However, the above instruction is a correct statement of the law in Indiana. The sentence in question concerns an element of proof pertinent to the facts and the definition of rape which the jury must understand in arriving at its determination of whether or not the elements of rape have been proved by the evidence beyond a reasonable doubt. There was no error in the giving of this instruction.


Appellant also objects to the instruction given by the court which read:

A person may be found guilty of the crime of rape upon the uncorroborated testimony of the victim.

This instruction accurately recites the law in Indiana as we have confirmed it to be many times. Harris v. State, (1978) 373 N.E.2d 149; Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d 216; Lynch v. State, (1974) 262 Ind. 360, 316 N.E.2d 372.

Appellant claims that this is an incomplete statement of the law and that it invites the jury to give undue weight to the testimony of the victim since it does not advise the jury that the uncorroborated testimony of the victim would be sufficient only if it is adequate to convince any rational trier of fact that the defendant committed the essential elements of the crime charged beyond a reasonable doubt. The appellant is correct, of course, in stating that the jury should consider the evidence in this manner. However, it is also true that instructions are not to be considered as disjointed statements or principles but are to be considered as a whole and are to be read together. Henderson v. State, (1979) Ind., 395 N.E.2d 224; Tewell v. State, (1976) 264 Ind. 88, 339 N.E.2d 792. The jury was fully instructed as to all of the elements that must be proved beyond a reasonable doubt before the defendant could be found guilty and the burden of proof the state must carry throughout the entire cause. They were instructed on the presumption of innocence of the defendant and given a definition and explanation of reasonable doubt. They were instructed on the credibility of witnesses and the weight to be given to the testimony of each witness. Instructions were given on the manner in which they were to deliberate and to determine the facts and the law. They were instructed that there is no burden on the defendant to prove anything, and that the fact that he fails to prove or disprove anything cannot be used in any manner to determine his guilt.

The instruction given was not a mandatory instruction that advised the jury that they must act or respond in a certain way. It was merely an explanation of the law in an area which likely would not be understood by lay people. There was no error in the giving of this instruction.


The trial court gave the following instruction to the jury:

It is not the law of this State that a woman assaulted with an intent to commit rape upon her is required to resist by all violent means within her power. The law requires only that the case be one in which the woman did not consent. Her resistance must not be mere pretense but in good faith. The law does not require that the woman shall do more than her age, strength, and all attendant circumstances make it reasonable for her to do in order to manifest her opposition. The question of resistance is a question of fact for you to determine and find and not a question this court can decide.

Appellant claims that since the defense of consent was not raised in this case, this instruction could do no more than emphasize the fact that M.D. had been beaten and was thereby induced to have sexual intercourse against her will by reason of the physical abuse.

Even though a defense of consent was not offered, an element of the crime of rape is that the carnal knowledge of the woman must be had against her will and consent, that is, it must be compelled by force or imminent threat of force. There was ample evidence here that M.D. had been beaten and that acts of sexual intercourse had been performed upon her. Evidence of violence was also presented by the existence of lesions in her vaginal area. It was proper for the court to instruct the jury on consent so that they might properly deliberate on the evidence before them. In addition, this instruction was expressly approved in Rahke v. State, (1907) 168 Ind. 615, 81 N.E. 584, and reaffirmed in the cases of Ritter v. State, (1946) 224 Ind. 426, 67 N.E.2d 530 and Thomas v. State, (1949) 227 Ind. 42, 45, 83 N.E.2d 788. There was no error in the giving of this instruction.


In preliminary and in final instructions, the trial court gave the following instruction:

You are the exclusive judges of the evidence, the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe; the memory, manner and conduct of the witness while testifying; any interest, bias or prejudice the witness may have; any relationship with other witnesses or interested parties; and the reasonableness of the testimony of the witness considered in the light of all of the evidence in the case.

You should attempt to fit the evidence to the presumption that the defendant is innocent and the theory that every witness is...

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