McCormick v. State, No. 3-1078A284

Docket NºNo. 3-1078A284
Citation182 Ind.App. 541, 395 N.E.2d 856
Case DateOctober 24, 1979
CourtCourt of Appeals of Indiana

Page 856

395 N.E.2d 856
182 Ind.App. 541
David Martin McCORMICK, Appellant (Defendant Below),
v.
The STATE of Indiana, Appellee (Plaintiff Below).
No. 3-1078A284.
Court of Appeals of Indiana, Third District.
Oct. 24, 1979.

Page 857

Dennis R. Kramer, Crown Point, for appellant.

Theodore L. Sendak, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found David Martin McCormick guilty of Rape. He was sentenced to the custody of the Indiana Department of Corrections and ordered to serve eight (8) years in a medium security facility. The sole issue presented for review is whether the trial court erred when it denied McCormick's Motion to Correct Errors which alleged [182 Ind.App. 542] that the evidence was insufficient to prove the essential element of penetration.

The judgment of the trial court is affirmed.

The pertinent evidence most favorable to the State reveals that on the evening of March 9, 1978, a fourteen-year-old girl ("the victim") was walking alone on a sidewalk in Hammond, Indiana. A car drove by and sounded its horn as it passed. The victim observed that the car's occupants were two men whom she did not recognize. The car returned a short time later. One man got out of the car and started walking behind the victim while the car trailed. After a few minutes, the door of the car opened; the victim was ordered to "get in and be quiet" and was pushed inside. McCormick was driving the car which stopped by a house. The victim was forced to enter the house. While the victim was seated on a couch with the other man McCormick blew smoke from a marijuana cigarette in her face.

McCormick and the other man then took the victim over to a bed. McCormick started kissing her as she struggled while the other man attempted to pull her pants off. The victim told them that she needed to go to the washroom. McCormick escorted her to the bathroom and held her hand while she was in there. When they returned from the bathroom, the other man removed her pants and panties. The victim testified that McCormick left the room while the other man "had sex" with her. The victim tried to escape when the man was finished. McCormick caught her, took her over to a couch, and ordered her to remove her blouse and shoes. The victim testified that McCormick then "had sex" with her. McCormick left the room when he was done. The victim hurriedly donned most of her clothes and escaped from the house. She ran to the nearby house of a girlfriend and notified the police.

The victim was taken to a hospital for an examination. McCormick and the State stipulated at trial to what the testimony of the examining physician would be regarding the results of a vaginal smear. The results indicated the presence of sperm in the victim's vagina.

A forensic urologist testified that he had conducted an examination of a yellow stain found on the crotch of the pants the victim had been wearing. The test indicated the presence of sperm.

[182 Ind.App. 543] During direct examination by the State, the victim, who was fifteen years old at that time, testified as follows:

"Q. Now, (victim), you are going to be a sophomore in high school, is that correct?

"A. Yes.

"Q. During your studies in high school, have you had any courses or any classes in sex education?

"A. Yes.

"Q. And you are familiar with the act of intercourse, is that correct?

"A. Yes.

"Q. It is your testimony today, the passenger did in fact have intercourse with you on March 9, 1978?

"A. Yes.

"Q. After you took your shoes off, what happened then?

"A. Then he (McCormick) took me on the couch and had sex with me.

"Q. I am sorry, I didn't hear.

Page 858

"A. And had sex with me.

"BY THE WITNESS:

"A. He (McCormick) told me that he loved me and that everything would be all right.

"BY MR. OLSZEWSKI:

"Q. And during this act of sex, what if anything were you doing, (victim)?

"A. Struggling.

"Q. And do you recall...

To continue reading

Request your trial
5 practice notes
  • Burnett v. Heckelman, No. 1-483A107
    • United States
    • Indiana Court of Appeals of Indiana
    • December 14, 1983
    ...there is no evidence this diminution in value has altered the "residential nature of life within " the subdivision, Cunningham, 395 N.E.2d at 856 (emphasis original), or made continued enforcement of the covenants meaningless. To the contrary, the evidence clearly indicates the subdivision ......
  • Hrisomalos v. Smith, No. 53A05-9201-CV-7
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1992
    ...Id. The court concluded that neither change was so radical in nature as to defeat the purpose of the covenant. 182 Ind.App. at 518, 395 N.E.2d at 856; see also Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d Here, the trial court found that only two changes existed within the neighborhood......
  • Chew v. State, No. 584S183
    • United States
    • Indiana Supreme Court of Indiana
    • December 19, 1985
    ...argument could have been avoided on appeal if more specific information had been elicited from the victim." McCormick v. State (1979), 182 Ind.App. 541, 545, N. 1, 395 N.E.2d 856, 858-59, n. 1. It is the responsibility of counsel having the burden of proof to assure that his witnesses' test......
  • Myers v. State, No. 55A05-0703-CR-148.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 30, 2008
    ...the probative value of Dr. Radentz's testimony, an essential element of rape is penetration, no matter how slight. McCormick v. State, 182 Ind.App. 541, 544, 395 N.E.2d 856, 858 (1979). Because none of Behrman's soft tissue remained, there was no physical evidence to support the rape determ......
  • Request a trial to view additional results
5 cases
  • Burnett v. Heckelman, No. 1-483A107
    • United States
    • Indiana Court of Appeals of Indiana
    • December 14, 1983
    ...there is no evidence this diminution in value has altered the "residential nature of life within " the subdivision, Cunningham, 395 N.E.2d at 856 (emphasis original), or made continued enforcement of the covenants meaningless. To the contrary, the evidence clearly indicates the subdivision ......
  • Hrisomalos v. Smith, No. 53A05-9201-CV-7
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1992
    ...Id. The court concluded that neither change was so radical in nature as to defeat the purpose of the covenant. 182 Ind.App. at 518, 395 N.E.2d at 856; see also Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d Here, the trial court found that only two changes existed within the neighborhood......
  • Chew v. State, No. 584S183
    • United States
    • Indiana Supreme Court of Indiana
    • December 19, 1985
    ...argument could have been avoided on appeal if more specific information had been elicited from the victim." McCormick v. State (1979), 182 Ind.App. 541, 545, N. 1, 395 N.E.2d 856, 858-59, n. 1. It is the responsibility of counsel having the burden of proof to assure that his witnesses' test......
  • Myers v. State, No. 55A05-0703-CR-148.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 30, 2008
    ...the probative value of Dr. Radentz's testimony, an essential element of rape is penetration, no matter how slight. McCormick v. State, 182 Ind.App. 541, 544, 395 N.E.2d 856, 858 (1979). Because none of Behrman's soft tissue remained, there was no physical evidence to support the rape determ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT