Overton v. State
| Decision Date | 15 October 1974 |
| Docket Number | Nos. 1--573A97 and 1--573A98,s. 1--573A97 and 1--573A98 |
| Citation | 161 Ind.App. 650,317 N.E.2d 467 |
| Parties | Melvin OVERTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). Freddie WHITE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Michael J. McDaniel, New Albany, for appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.
In this consolidated appeal, defendant-appellant Melvin Overton appeals from convictions of rape 1 and sodomy. 2 Defendant-appellant Freddie White appeals from convictions of being an accessory both before 3 and after 4 the fact of rape. Both Overton and White appeal from convictions of commission of a felony (rape) while armed with a deadly weapon. 5
The following issues are presented for review:
(1) Whether the trial court erred in overruling appellants' motions challenging the array.
(2) Whether the evidence is sufficient to identify appellants as perpetrators of the offenses.
(3) Whether Overton's conviction of sodomy is sustained by sufficient evidence.
(4) Whether White's conviction of being an accessory after the fact of rape is sustained by sufficient evidence.
(5) Whether Overton's sentence of two (2) to twenty-one (21) years for sodomy is erroneous.
(6) Whether the court erred in imposing sentences for both greater and lesser and included offenses.
(7) Whether the indeterminate sentences imposed upon appellants represent an unlawful delegation of judicial power and constitute cruel and unusual punishment.
The facts most favorable to the State are:
On May 3, 1972, shortly after midnight of the preceding day, Overton approached an automobile in New Albany Community Park occupied by Carl Eickenberger and Patricia Culwell. Brandishing a knife and tire tool, Overton ordered Eickenberger from the automobile. He complied, and Miss Culwell followed. Overton was then joined by White and Alonzo Clark who were also brandishing tire tools or pry bars, and the trio led Eickenberger and Miss Culwell to the edge of a woods. Overton took Miss Culwell into the woods and after threatening to beat her with the tire iron, removed her jeans and blouse. After ordering her to remove her underwear, Overton performed sexual intercourse with Miss Culwell. Immediately thereafter she was forced to have intercourse with Alonzo Clark. Following these assaults, Overton, in Miss Culwell's words '. . . made me put my mouth on him.'
While Miss Culwell was being assaulted, Eickenberger was restrained at knife point under threat of his life at the edge of the woods. When a police car appeared at the place where the young couple's automobile was parked, the men ran into the woods. As Eickenberger went to solicit the officers' assistance, Overton, White and Clark fled through the woods taking their nude victim with them. White periodically stopped and placed his arms around her.
Miss Culwell was subsequently abandoned and later found by Eickenberger and a police officer. Overton, White, and Clark were apprehended while attempting to flee the area.
The jury panel assembled at the time of the trial consisted of twenty-seven persons, one of whom was a Negro. Appellants, who are black, contend that the panel did not constitute a true and accurate representative cross section of the community. However, on the record before us, we are unable to conclude that appellants were denied their right to trial by a fair and impartial jury of their peers.
As our Supreme Court stated in Sanders v. State (1972), Ind., 284 N.E.2d 751:
'It is well established that jury selection systems must draw their jurors from a fair cross section of the community. Smith v. Texas (1940), 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84. Equally clear, is that the defendant has the initial burden of demonstrating that purposeful discrimination exists. See, Whitus v. Georgia (1967), 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Hernandez v. Texas (1954), 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. This matter was discussed in United States v. Butera (1st Cir. 1970), 420 F.2d 564, 569, where the court stated:
In other words, it is not the significant disparities themselves which are unconstitutional, Akins v. Texas, 325 U.S. (398 at 403--404, 65 S.Ct. 1276 ) at 69, 82 S.Ct. 159, 7 L.Ed.2d 118); they only raise the inference of discrimination. (Our emphasis.)'
In the case at bar, appellants wholly failed to establish a 'significant disparity' between the percentage of Negro citizens selected for jury duty and the percentage of Negro citizens in the community. The record is devoid of any evidence bearing upon this question. We therefore cannot determine that the court erred in overruling appellants' challenge to the array.
This and the following two issues present questions concerning the sufficiency of the evidence to sustain appellants' convictions. We are reminded that we may look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom to determine whether there is substantial evidence of probative value from which the trier of fact might infer guilt beyond a reasonable doubt. Capps v. State (1972), Ind., 282 N.E.2d 833; Arnett v. State (1973), Ind.App., 291 N.E.2d 376.
We cannot agree with appellants' assertion that the evidence is insufficient to identify them as the perpetrators of the offenses charged. Eickenberger testified he could only identify appellants as resembling the persons confronting him in the park. However, Miss Culwell's identification of appellants was positive.
Appellants do not challenge the general rule that a conviction for rape may be sustained on the uncorroborated testimony of the victim. See, Douglas v. State (1970), 254 Ind. 517, 261 N.E.2d 567; Grimm v. State (1970), 254 Ind. 150, 258 N.E.2d 407. Rather, they attempt to focus our attention on Meadows v. State (1968), 252 Ind. 1, 238 N.E.2d 281, wherein the court reversed an order overruling a motion for new trial after a conviction of sodomy based solely on the uncorroborated testimony of the victim. In that case, however, the victim had been committed to a mental institution and had alternately testified that the defendant had and had not committed the illegal acts charged.
No analogy may be drawn between the Meadows decision and the case at bar. There is no allegation that Miss Culwell has ever been admitted to a mental institution, and appellants' argument attempting to draw the instant case within the purview of Meadows by emphasizing testimony that she exhibited signs of emotional strain or distress immediately following the attack is wholly without merit. Further, Miss Culwell did not give contradictory testimony on the question of whether appellants committed the illegal acts charged. Compare, Hightower v. State (1973), Ind., 296 N.E.2d 654.
The evidence most favorable to the State reveals that Miss Culwell had ample opportunity to observe her attackers. She identified one of the men as he was apprehended near the scene of the crime. She identified appellants at a line-up the day following the attack. Clearly, the evidence adduced at trial was sufficient to identify appellants as the perpetrators of the offenses.
The evidence forming the basis of Overton's conviction of sodomy under IC 1971, 35--1--89--1, supra, is found in the following testimony of Miss Culwell:
'Q. You have complained also in your statement here that an act of sodomy was committed. Describe to the jury was this subsequent to the second time you had been raped?
A. Yes.
Q. Now, who committed the act of sodomy?
A. Melvin Overton.
Q. And what did it consist of? A. He made me put my mouth on him.'
In Glover v. State (1913), 197 Ind. 459, 101 N.E. 629, carnal copulation per os or per anum were determined to be included within our statutory definition of sodomy. The elements of these acts were more specifically delineated in the following passage from Estes v. State (1964), 244 Ind. 691, 195 N.E.2d 471:
Overton's specific contention is that Miss Culwell's testimony is insufficient to establish that his male organ was involved. We cannot agree. Viewed most favorably to the State and in light of all the attendant circumstances Miss Culwell's testimony clearly supports a strong inference that it was Overton's penis upon which she was forced to place her mouth.
To sustain appellant White's conviction as an accessory after the fact, it was incumbent on the State to prove that:
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