Lynch v. State, 473S69

• Citation: 262 Ind. 360,316 N.E.2d 372
• Decision Date: 11 September 1974
• Docket Number: No. 473S69,473S69
• Parties: Perry Lee LYNCH, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 372

316 N.E.2d 372

262 Ind. 360

Perry Lee LYNCH, Appellant, v. STATE of Indiana, Appellee.

No. 473S69.

Supreme Court of Indiana.

Sept. 11, 1974.

Arnold Paul Baratz, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

De BRULER, Justice.

The Marion County Grand Jury indicted appellant, Perry Lee Lynch, for the crimes of Rape (I.C.1971, 35--13--4--3, being Burns' § 10--4201), and Kidnapping (I.C.1971, 35--1--55--1, being Burns' § 10--2901), perpetrated upon one Holly. Lynch was convicted on both charges after a trial by jury in the Marion Criminal Court, Special Judge David McNamar presiding, and sentened to concurrent terms of two to twenty-one years and life imprisonment respectively. He has now perfected an appeal to this Court in which he alleges two grounds for the reversal of this judgment: (1) That the conviction on the charge of rape is not supported by sufficient evidence; (2) that the trial court erred in not declaring a mistrial because of two instances of alleged prosecutorial misconduct during the trial.

The evidence elicited at the trial below shows that on the evening of August 20, 1971, Holly, and two friends, Donna and Vicky, visited the Indiana State Fair in Indianapolis. Sometime after 10:00 p.m., they left the fair and returned to Holly's car in order to return home. As they approached the car Holly noticed that one door was partially open and the convertible roof had been slit. The three women decided to leave the area as rapidly as possible, but before they were able to do so two men appeared with guns. One of the men, identified at trial by both Holly and Donna as the appellant Lynch, pointed a pistol at Donna and ordered all three women into the back seat of the car. The appellant then got in the front passenger seat while his companion occupied the driver's seat. They drove for about ten minutes to the Washington Park Zoo in Indianapolis. During the drive the appellant faced the three women in the back seat and held a gun pointed at them. He spoke several times telling them not to try to escape or attract the attention of other motorists.

Upon arriving at Washington Park Zoo the appellant forced Donna to disrobe, threatened to kill her if she resisted and had intercourse with her in the back seat of the car. The other two girls were kept under surveillance outside the car by appellant's companion. After several minutes the appellant came over to where his companion and the girls were and told the other man that they would have to leave the area because he could see car lights across the park. The men then forced the two girls to get back in the car. They drove for another three or four blocks and parked in an alley behind some buildings. Holly and Vicky were again ordered out and this time the appellant stood guard over them while his companion raped Donna.

Appellant next told Holly to get in the back seat. He threatened to shoot her if she did not cooperate and he forced her to take her clothes off. Holly testified at the trial that the appellant then raped her while holding a gun in his right hand pointed at her head. The appellant then traded places with his companion who also raped Holly.

All the women were then ordered back in the car and the appellant and his companion drove around some more. After a while they stopped the car, got out and told the women to drive away without looking back. Holly drove a short distance and then flagged down an Indianapolis City Police car. The officer placed a brief description of the assailants on the radio and escorted the women to the Marion County General Hospital where they were examined, treated and released the following day.

Before specifically addressing appellant's claim of insufficiency of the evidence we feel constrained to again reiterate that when called upon to decide this issue it is not our proper function as an appellate court to weigh the evidence at the trial below nor to decide questions concerning the credibility of witnesses. Priola v. State (1973), Ind., 292 N.E.2d 604. Rather we look to that evidence most supportive of the verdict and determine whether that evidence, along with the reasonable inferences which a jury might draw from it, is sufficient in probative value to establish all the necessary elements of the offense charged. Turner v. State (1972), Ind., 287 N.E.2d 339.

In this case the appellant asserts that the evidence outlined above is not sufficient to establish that he committed the crime of rape upon Holly. The statute with which we are concerned here provides in part:

'Whoever has carnal knowledge of a woman forcibly against her will . . . is guilty of rape, and on conviction shall be imprisoned not less than two years nor more than twenty-one years.' Burns' § 10--4201, supra.

Holly testified that on the night of the incident the appellant Lynch had a gun and that he threatened to shoot her if she failed to cooperate. She further testified that the appellant, 'forced his penis into my vagina' while holding the gun in his hand and that she was afraid that he would kill her if she physically resisted. Such testimony clearly establishes carnal knowledge of this victim by force and against her will.

Appellant contends, however, that the particular facts of this case should compel us to hold Holly's testimony on the matter of penetration as insufficient. Appellant's contention is based on a medical report of an examination performed on Holly the morning after the incident. The report indicated that a pelvic examination did not reveal the presence of spermatozoa or lacerations of tissue. Appellant asserts that in the face of this medical evidence Holly's testimony on the element of penetration is not, standing alone, sufficient. We do not agree.

It has long been the law in Indiana that the uncorroborated testimony of the victim of a rape is sufficient evidence to support the conviction of an appellant. Williams v. State (1973), Ind., 297 N.E.2d 805; Taylor v. State (1972), 257 Ind. 664, 278 N.E.2d 273; Grimm v. State (1970), 254 Ind. 150, 258 N.E.2d 407.

'It is the law of this state that a conviction for rape may be had solely upon the testimony of the prosecuting witness and victim.' Smith v. State (1971), 255 Ind. 687, 266 N.E.2d 216.

The victim in this case testified directly and explicitly concerning penetration by the appellant making the evidence on this question sufficient as a matter of law. In view of the victim's testimony, the medical report, to the extent that it is relevant on the question of penetration, is merely evidence of corroborative value to be weighed and considered by the jury. Moreover, we should emphasize that penetration, not ejaculation, is the essential element of the crime of rape. The presence of absence of spermatozoa in the victim's vaginal area is, of course, not determinative of penetration. We hold therefore that the evidence adduced at the trial was sufficient as a matter of law to...