Omans v. State, No. 3-280A57

Docket NºNo. 3-280A57
Citation412 N.E.2d 305
Case DateNovember 19, 1980
CourtCourt of Appeals of Indiana

Page 305

412 N.E.2d 305
William OMANS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 3-280A57.
Court of Appeals of Indiana, Third District.
Nov. 19, 1980.

Page 306

Richard K. Muntz, Richard K. Muntz, P. C., LaGrange, for appellant.

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

HOFFMAN, Judge.

Following a jury trial, defendant-appellant William Omans was convicted of two counts of child molesting, IC 1971, 35-42-4-3(c) (Burns 1979 Repl.), and sentenced to consecutive five-year terms.

His appeal raises two issues:

(1) whether there was sufficient proof of penetration to support the convictions; and

(2) whether it was error to admit testimony regarding his prior sexual conduct.

Defendant maintains that the evidence was insufficient to sustain his convictions because there was no proof of penetration. The statute under which defendant was convicted provides:

"(c) A person sixteen (16) years of age or older who, with a child twelve (12) years of age or older but under sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a class C felony. However, the offense is a class A felony if it is committed by using or threatening the use of deadly force, or while armed with a deadly weapon."

Page 307

IC 1971, 35-42-4-3(c).

IC 1971, 35-41-1-2 (Burns 1979 Repl.) defines sexual intercourse as "an act that includes any penetration of the female sex organ by the male sex organ." Since the charge did not involve deviate sexual conduct, penetration, no matter how slight, is an essential element of the crime of child molesting. Whether or not penetration has occurred is a question of fact to be determined by the jury. Hall v. State (1975), 166 Ind.App. 55, 333 N.E.2d 913.

Defendant was charged with sexually molesting his stepdaughters, Debbie and Mary. With respect to the alleged act of intercourse with Debbie, she testified on direct examination as follows:

"Q. Would you tell the ladies and gentlemen of the Jury what happened?

"A. He laid me on the bed. He said that it wasn't gonna hurt, and I just laid there and closed my eyes, and he said when he got done he stuck his finger up inside of me, and he said when he got done, he told me to go get him a wet wash cloth, and white stuff was coming out, and he said that never to let any young boys put that inside me because that's what caused babies.

"Q. During any point in time did you feel any pain?

"A. Yeah.

"Q. Before his finger was put inside of you was anything else put inside you?

"A. I don't know. I never looked.

"Q. Did he say anything about whether or not anything was put inside you?

"A. Yeah.

"Q. What did he say?

"A. He said that it was inside me.

"Q. Did you know what he was referring to when he said it was inside you?

"A. Yeah.

"Q. What was he referring to? Can you say it, Debbie?

"A. No.

"Q. Why not?

"A. Cause.

"Q. Do you know what I mean by the word penis?

"A. Yeah.

"Q. Is that what he was referring to?

"A. Yeah."

On cross-examination she stated:

"Q. And you said that you didn't look to see what he had in you, but you said he had his finger in you?

"A. (inaudible)

"Q. You don't know what he had in you? Well, do you remember saying in that statement, when Mrs. Waldron asked you, 'Did you actually have sex?' and you said, 'Well, I never seen him because I just closed my eyes, but he said he had it in me.' Do you remember saying that?

"A. Yeah.

"Q. And is that what he said to you, 'I have it in you.'?

"A. Yeah.

"Q. Did he say what he had in you?

"A. No.

"Q. O.K. You just-when Mr. Yoder asked you if he had his penis in you, you're assuming that's what he had in you?

"A. Yeah.

"Q. But you didn't look?

"A. No.

"Q. When Mr. Yoder asked you today was that the first time you've ever heard the word penis?

"A. No.

"Q. Had you ever talked with your sisters about the things to know what about sex and things?

"A. No.

"Q. Did you ever talk to your mom about it?

"A. No.

"Q. Who did you talk with to find out about these things?

"A. I just heard the word. I don't know where I heard it.

Page 308

"Q. Could you have heard it at school?

"A. Yeah.

"Q. But you don't know what the word means?

"A. I do now.

"Q. You do now. What does it mean? (a long pause) You don't know what it means, or you do know?

"A. I do know.

"Q. Would you tell us what it means to you then?

"A. I don't know how to put it."

Defendant claims this testimony fails to show that his sex organ penetrated her sex organ insofar as she did not see his penis enter her vagina. He suggests that the evidence merely reveals that he put his finger somewhere inside her.

This contention is unavailing. As noted in Baldwin v. State (1973) 59 Wis.2d 116, 207 N.W.2d 630, at 634:

"Penetration may be proved by means other than an account based on visual observations. The Arkansas Supreme Court, in Needham v. State (1949), 215 Ark. 935, 990, 224 S.W.2d 785, 788, rejecting a similar argument, stated:

'... If it were necessary that this element of rape be proved in every case by an eye-witness, the accused could not ordinarily be convicted if the prosecutrix' vision had been obscured by darkness, unconsciousness or any other cause. But that is not the law; penetration, like other facts, may be proved by means other than an account based on visual observation....' "

See also Moore v. State (1974) 23 Md.App. 540, 329 A.2d 48.

Clearly Debbie was reluctant to express the incident in all its sordid details. In fact she admitted that she was embarrassed about testifying. Particularly relevant in this regard is the following quotation from Bradburn v. State (1904), 162 Ind. 689, at 689-690, 71 N.E. 133, at 133:

"The first question presented is whether there was sufficient proof of penetration. Section 1875 Burns 1901 provides: 'In prosecutions for the offense of rape, proof of penetration shall be sufficient evidence of the commission of the offense.' We do not deem it necessary to exhibit the evidence in detail. There was an indefinite question asked the prosecuting witness as to the act of appellant with reference to the matter of penetration. From her answer to such question, coupled with her testimony as to the other acts of appellant, and as to his declaration as to his purpose, we think that it was competent for the court, to whom the cause was submitted, to find that there was penetration. In fact, such inference, in view of the answer referred to, was the only one which would reasonably comport with the details of appellant's conduct toward her as testified to by said witness. There is a natural tendency upon the part of both counsel and witness, prompted by a sense of the fundamental proprieties of the occasion, to deal with a matter of this kind in other than unambiguous terms. Sitting here, one (sic) remove (sic) from the trial, we cannot say that the judge who tried the cause was not at liberty to draw an inference which as a man he could hardly fail to adopt as to the meaning which the witness' words were intended to convey."

In view of all the circumstances surrounding her testimony, the inference to be drawn is that defendant's male sex organ penetrated Debbie's female sex organ. Lindsey v. State (1971), 257 Ind. 78, 272 N.E.2d 458. Cf.: People v. Vicencio (1945) 71 Cal.App.2d 361, 162 P.2d 650 (testimony that prosecutrix did not know whether or not there had been actual sexual penetration but that she felt some pain partly in the inside and partly on the outside and that immediately after commission of the act defendant indicated to her that he had experienced seminal emission held sufficient); People v. Graham (1978) 60 Ill.App.3d 1034, 18 Ill.Dec. 26, 377 N.E.2d 179 (defendant put "thing" into her vagina); State v. Ragland (1952) 173 Kan. 265, 246 P.2d 276 (defendant put his "dick" halfway in her, other defendant stuck his "rhubarb" in her); Faulkner v. State (1965) Tex.Crim.,

Page 309

390 S.W.2d 754 ("fuck" recognized as synonymous with penetration, defendant put "peter" in her private parts); Blackmon v. State (1920) 87 Tex.Crim. 173, 220 S.W. 93 (defendant did get "it" in once a little).

Concerning sexual intercourse between defendant and Mary, she related:

"Q. Then what happened?

"A. Then he told me to go in the bedroom, and he went and got the vaseline in the bathroom. And then he just went all the way.

"Q. All right. Now, turning your attention to December 18, Mary, from what you just testified about, where did this occur at?

"A. In his bedroom.

"Q. Is there a double bed or a single bed there?

"A. Single.

"Q. Did you have all of your clothes off?

"A. Yes.

"Q. Did you take them off yourself?

"A. Yes.

"Q. Why did you take your clothes off?

"A. Because I was scared. He...

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12 practice notes
  • Brown v. State, No. 181S13
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1982
    ...v. State, (1971) 257 Ind. 78, 272 N.E.2d 458; Davis v. State, (1972) 258 Ind. 533, 282 N.E.2d 805; Omans v. State, (1980) Ind.App., 412 N.E.2d 305. The evidence is sufficient to sustain each count of Defendant also contends that there was insufficient evidence to sustain his convictions for......
  • Crabtree v. State, No. 33A01-8901-CR-00023
    • United States
    • Indiana Court of Appeals of Indiana
    • December 7, 1989
    ...actual penetration. See, Knowlton v. State (1978), 178 Ind.App. 420, 382 N.E.2d 1004, 1009, n. 4; also, Omans v. State (1980), Ind.App., 412 N.E.2d 305, trans. denied. We believe this conclusion applies with equal strength to the definition contained in I.C. 35-41-1-9(1) (1985 Supp.) becaus......
  • Best v. State, No. 3-382A48
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1982
    ...subject only to exclusion for remoteness. Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691." Omans v. State (1980), Ind.App., 412 N.E.2d 305, at Page 1364 The photographs were not challenged for remoteness and were admissible as tending to indicate a depraved sexual instinct. Best f......
  • Neaveill v. State, No. 1-784A186
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 1985
    ...It is sufficient if a similar instinct is involved. Jarrett, 465 N.E.2d at 1100. As this court said in Omans v. State (1980), Ind.App., 412 N.E.2d 305, 311, trans. "Generally, evidence of criminal activity other than that charged is inadmissible on the question of guilt. Cobbs v. State......
  • Request a trial to view additional results
12 cases
  • Brown v. State, No. 181S13
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1982
    ...v. State, (1971) 257 Ind. 78, 272 N.E.2d 458; Davis v. State, (1972) 258 Ind. 533, 282 N.E.2d 805; Omans v. State, (1980) Ind.App., 412 N.E.2d 305. The evidence is sufficient to sustain each count of Defendant also contends that there was insufficient evidence to sustain his convictions for......
  • Crabtree v. State, No. 33A01-8901-CR-00023
    • United States
    • Indiana Court of Appeals of Indiana
    • December 7, 1989
    ...actual penetration. See, Knowlton v. State (1978), 178 Ind.App. 420, 382 N.E.2d 1004, 1009, n. 4; also, Omans v. State (1980), Ind.App., 412 N.E.2d 305, trans. denied. We believe this conclusion applies with equal strength to the definition contained in I.C. 35-41-1-9(1) (1985 Supp.) becaus......
  • Best v. State, No. 3-382A48
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1982
    ...subject only to exclusion for remoteness. Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691." Omans v. State (1980), Ind.App., 412 N.E.2d 305, at Page 1364 The photographs were not challenged for remoteness and were admissible as tending to indicate a depraved sexual instinct. Best furthe......
  • Neaveill v. State, No. 1-784A186
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 1985
    ...It is sufficient if a similar instinct is involved. Jarrett, 465 N.E.2d at 1100. As this court said in Omans v. State (1980), Ind.App., 412 N.E.2d 305, 311, trans. "Generally, evidence of criminal activity other than that charged is inadmissible on the question of guilt. Cobbs v. State (197......
  • Request a trial to view additional results

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