Miller v. State

• Citation: 364 N.E.2d 129,266 Ind. 461
• Decision Date: 06 July 1977
• Docket Number: No. 1176S382,1176S382
• Parties: Steven MILLER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 129

364 N.E.2d 129

266 Ind. 461

Steven MILLER, Appellant, v. STATE of Indiana, Appellee.

No. 1176S382.

Supreme Court of Indiana.

July 6, 1977.

B. K. Delph, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted of rape, Ind.Code § 35-13-4-3 (Burns 1975) and sodomy, Ind.Code § 35-1-89-1 (Burns 1975), after trial by jury in the Lake Criminal Court, and received sentences of fifteen years and two to fourteen years imprisonment respectively. Appellant raises three issues on appeal:

(1) failure of the trial court to instruct the jury as to the State's burden of proof;

(2) sufficiency of the evidence;

(3) "excessiveness" of the verdict.

I.

Appellant complains that the trial court omitted to instruct the jury that the State bore the burden of proof on all issues. There appear in the record the following instructions which were read to the jury:

Court's Preliminary Instruction No. 2

"To each count of the Information in this case the Defendant has entered a plea of not guilty, which makes it incumbent upon the State of Indiana to prove to your satisfaction, beyond a reasonable doubt, each and every material allegation of either or both counts of said Information.

The Defendant comes into Court presumed to be innocent of the charge and this presumption remains with him throughout the trial until and unless it is overcome by competent proof of guilt beyond a reasonable doubt."

Court's Final Instruction No. 2

"To each count of the Information in this case, the Defendant has entered a plea of not guilty, which makes it incumbent upon the State of Indiana to prove to your satisfaction, beyond a reasonable doubt, each and every material allegation of either or both counts of said information."

Court's Final Instruction No. 6

"The fact that an Information has been filed charging the Defendant with the commission of a crime does not give rise to any presumption of guilt and is not to be considered by the Jury as any evidence of guilt. On the contrary, it is a fundamental concept in our law that the Defendant comes into Court presumed to be innocent of the charge, and this presumption remains throughout the trial of the case until and unless it is overcome by competent proof of guilt beyond a reasonable doubt. Every reasonable doubt arising from the evidence, or the lack of evidence in this case must be construed in favor of the Defendant, and it is the duty of the Jury to reconcile the evidence in accordance with this presumption of innocence if you can reasonably do so."

Appellant did not object to any of these instructions or offer any of his own governing this issue. Even so, appellant correctly asserts that a complete failure by the trial court to instruct the jury as to the burden of proof would constitute fundamental error, in that the trial court is required sua sponte to so instruct, Ind.R.Cr.P. 8(F), and failure to inform the jury as to the State's burden of proof would seriously call into question the fairness of the proceedings leading to appellant's conviction. See Winston v. State, (1975) Ind.App., 332 N.E.2d 229.

Here, however, the trial court did instruct the jury that the State was required to prove all of the elements of the offenses charged beyond a reasonable doubt and that the presumption of innocence remained with appellant until overcome by proof beyond a reasonable doubt. It omitted to inform them that the State alone bears this burden, which never shifts to the accused, Smith v. State, (1969) 252 Ind. 425, 249 N.E.2d 493; Whitaker v. State, (1960) 240 Ind. 676, 168 N.E.2d 212, and therefore the instructions on the point were not complete. However, at the same time, the instructions did not deviate by placing any burden, directly or inferentially upon the accused; and did, we believe, state the law sufficiently well that it cannot be said that the court wholly failed to instruct on the burden of proof. The inadequacy of the instructions was not therefore fundamental error requiring appellant's conviction to be reversed.

II.

On December 5, 1975, the prosecuting witness went on a blind date arranged by a girlfriend, along with that girlfriend and her date. The two couples traveled in the automobile of the witness' date. They went from Hammond to a bar in Illinois, then left to drive to another bar. During the evening the prosecuting witness became disenchanted both with her date and with the group's plans to visit various bars. She asked to be taken home, but instead was let out of the car in Burnham, Illinois, sometime after 10:30 p. m., with only about a dollar. The prosecuting witness resorted to hitchhiking; two young men in a van gave her a ride back to downtown Hammond. She attempted to walk to some friends' house but began hitchhiking again because it was raining. A blue pick-up truck driven by a lone man stopped for her. She noticed a license plate on the front bearing a cross and the word "Calvary." As she entered the truck the driver asked her where she was going, and she told him. She faced him during this conversation, and the area, a business district, was well lighted.

After driving some distance the man pulled into an alley; the prosecuting witness asked where he was going, and he pushed her back into the seat, saying, "You're not going anywhere." She opened the door and screamed, and the man seized her by the throat, choking her. Holding her with one arm, he made a fist and threatened to punch her, whereupon she ceased struggling. The man undressed and ordered her to undress, and she did so. He ordered her to perform fellatio upon him, and she did. Then he pushed her over and had sexual intercourse with her. Afterward he made her dress and released her. The witness several times during the fifteen- to twenty-minute episode asked the man to release her, and began crying when ordered to fellate him.

The prosecuting witness flagged down a car, and was taken to her home. Her father immediately notified the police. The witness was taken to St. Margaret Hospital in Hammond where an emergency room examination showed no signs of violent injury. Spermatozoa were found in a vaginal smear taken from the witness. The witness gave Sergeant Ronald Dubish a description of her assailant as being a white male in his early twenties, weighing approximately 160...