Malone v. State

• Citation: 441 N.E.2d 1339
• Decision Date: 24 November 1982
• Docket Number: No. 681S171,681S171
• Parties: Alonzo MALONE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1339

441 N.E.2d 1339

Alonzo MALONE, Appellant, v. STATE of Indiana, Appellee.

No. 681S171.

Supreme Court of Indiana.

Nov. 24, 1982.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Dan S. LaRue, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Alonzo Malone was tried by a jury in the Elkhart Superior Court and found guilty of rape, a class B felony according to Ind.Code Sec. 35-42-4-1 (Burns 1979), burglary, a class B felony according to Ind.Code Sec. 35-43-2-1 (Burns Supp.1982) and battery resulting in serious bodily harm, a class A misdemeanor according to Ind.Code Sec. 35-42-2-1 (Burns Supp.1982). The trial court found that the burglary and battery offenses merged into the rape conviction. On November 26, 1980, Malone was sentenced to fourteen years imprisonment on the rape. He now directly appeals.

Appellant alleges in this appeal the following issues:

1. The trial court erred in denying Appellant's Motion in Limine thereby erroneously permitting a witness, V.H., to testify about an unrelated rape allegedly committed by Malone 2. The trial court erred in refusing to permit Malone to cross-examine V.H. during the State's offer to prove that V.H. should be permitted to testify before the jury; and

3. The verdicts are in error and contrary to law because they are not supported by sufficient evidence.

The crux of this case is whether or not the purported victim, P.C., consented to Appellant's actions. There is no identification issue. There is no question that Malone and P.C. engaged in the alleged sexual intercourse. The problem is whether Malone entered P.C.'s home without her permission and forced her to have sexual relations against her will. Both Malone and P.C. presented contradictory stories about what transpired between them.

P.C. stated her story as follows. P.C. was introduced to Malone by Oddie Honorable, a mutual friend, at the end of September, 1979. She also had been friends with Malone's brother. P.C.'s apartment was approximately four blocks from Malone's apartment. She visited Malone in his home about five times, drinking an alcoholic beverage with him at least once. On several other occasions, she drank with Malone while he was visiting in her apartment. P.C. testified that she never had sexual relations with Malone before the night in which he raped her.

P.C. further testified that while she was entertaining neighbors in her home during the evening of October 29, 1979, the lights went out. While P.C. was in her kitchen attempting to restore the lights, Malone appeared uninvited at P.C.'s front door. One of P.C.'s guests let him in. P.C. said she asked everyone to leave hoping Malone would also go. She wanted Malone to leave because he previously had been rude and because she had found small amounts of money and food missing after his recent visits to her apartment. She never actually saw Malone take anything and never reported any of the alleged thefts to the police. Nonetheless, she had told Malone not to ever come back to her apartment. Honorable, at the party before Malone arrived, stayed behind with Malone after P.C.'s other guests left. When specifically asked to leave, Malone complained that P.C. had given away the pint of Scotch liquor he had brought with him. An argument ensued. While Honorable minded P.C.'s two sons, P.C. went out and purchased a half-pint of liquor to placate Malone. She gave the liquor to Malone and again asked him to leave. He got louder and slapped P.C. at least five times, repeatedly pushing her to the floor. She testified that she did not strike Malone first. She also testified that she had been drinking and screamed at Malone. As a result of Malone's beating, P.C. suffered two black eyes and multiple bruises to her legs, arms and face. She said she became groggy and dizzy. The fight drew to a conclusion when P.C. grabbed a large empty liquor bottle and hit Malone on his head with it. Malone grabbed at her shirt. Backing up, P.C. fell out a window causing her shirt to be pulled completely off. Malone allegedly snatched her keys, went out the door, threw the keys and ran off down the street laughing. P.C. said she found her keys the next day.

Oddie Honorable was called by the State and testified that he was in P.C.'s one-bedroom apartment during the entire fight between P.C. and Malone. He said Malone arrived sober and with a bottle of liquor. He also said the fight started when Malone, realizing his liquor was gone, accused P.C. of taking his liquor whereupon P.C. slapped Malone in his face. Honorable testified that P.C. hit Malone first. He further testified that Malone knocked P.C. down only once and probably hit her no more than three times. He said P.C. did not do "too bad" as a fighter. He also said P.C.'s keys were found soon after Malone ran off. He did not know who had thrown the keys but suggested P.C.'s children might have. Honorable testified that he left P.C. when her keys were found.

P.C.'s story continues. She testified that Malone returned to her house alone approximately thirty minutes after having run off. Her door was closed and padlocked from the inside with the key lost outside. When Malone pushed out some plastic covering a broken window, P.C. noticed him and told him to leave her alone since she was hurt. He told her that he had bought for her a half-pint of liquor to make amends for the earlier fight. P.C. said she knew he was trying to apologize but asked him to leave anyway. Instead, he climbed through the window into her apartment. As Malone continued to apologize, he informed her that he intended to spend the night. He sat on her bed in what doubled as P.C.'s bedroom and livingroom. When she approached to urge him to leave, Malone took her arm and pulled her onto the bed with him. Malone told P.C. he "wanted to make love" to her. Although he never struck her during this second visit, P.C. said she was nonetheless afraid because of Malone's earlier rage and beating and therefore let him have his way. She took off her own clothes and submitted to sexual intercourse. Afterwards, Malone fell asleep. P.C. testified that she subsequently got up and walked around her apartment hoping Malone would awaken and leave. She had neither a phone nor a car. She did not attempt to take her sons out through a window because she feared they would awaken Malone and provoke him to further violence. She waited until the next morning when Malone finally left. Thereafter, P.C. said she called her aunt in Michigan and asked her for a ride to a hospital.

The evidence shows that P.C. was examined in the emergency room of Elkhart General Hospital. The examining doctor testified from his records that he diagnosed P.C. as suffering from multiple contusions about the face, a tender right hand and a non-displaced fracture of the maxilla. No treatment or therapy was required, however. Since P.C. never mentioned to the doctor that she had been raped, no rape tests were conducted. P.C.'s aunt also testified that P.C. never said anything about having been raped. The aunt did affirm, however, that she drove P.C. and her sons to Elkhart General. P.C. swore out her affidavit on February 26, 1980, alleging Appellant's rape nearly four months after the purported attack. The Pre-Sentence Report included in the record specifically informs:

"While investigating Elkhart Police Department case # 85282 [the rape alleged by V.H.], police took a statement from Edward E. Harris, also known as Pee Wee Harris, who told them that Alonzo Malone had raped [P.C.] on October 30, 1979. Police contacted [P.C.] who told them that she had in fact been raped (sic) Alonzo Malone and that she was afraid of him as he had shot at her the week before with a .25 caliber automatic pistol. [P.C.] told police she would consider prosecuting Malone for the Rape. On February 18, 1980, [P.C.] advised police that she was willing to prosecute Malone for Rape and the case was filed as case # 86446 with the Elkhart City Police Department. [P.C.] told police that she had been beaten severely by Malone during the course of the Rape when Malone had broken into her home...."

The defense presented evidence that Malone and P.C. had been seen together in public sometime before July 4, 1979. Malone personally testified that he visited with P.C. about four times a week from June through October, 1979. He said they played cards, drank liquor and talked together. He claims they engaged in sexual relations four or five times at her apartment and six times at his. They first did so in July. Malone stated that he often gave candy and other food to P.C.'s children.

Malone's story continues as follows. Malone testified that on October 29th, he went alone from a friend's house to P.C.'s apartment with a half-pint of gin liquor and some candy for P.C.'s children. P.C. let him in her door just as some guests were leaving. She was drinking and appeared to be intoxicated. After the elapse of one half-hour, Malone noticed his gin was gone from the table he had set it on. He asked P.C. where it was. P.C. got mad, slapped Malone in the face and told him to leave as she tried to hit him with a water bottle. Malone grabbed her arm to prevent her from hitting him while he attempted to leave. P.C. grabbed another large bottle and hit Malone on his head with it. Malone then slapped P.C. in the face a couple of times. Malone testified that although he slapped P.C. fairly hard, he did not hit her with his closed fist and he did not knock her to the floor. P.C. tried to hit Malone with a tire bat tool but Malone grabbed the bat from her and threw it. He ran out the door. Malone testified that he never threw P.C.'s keys.

Malone further testified that he subsequently returned to P.C.'s apartment with Jimmie Moton, his cousin and friend. Malone said he wanted to apologize to...