Palmer v. State, 472A200
| Decision Date | 08 November 1972 |
| Docket Number | No. 472A200,472A200 |
| Citation | 288 N.E.2d 739,33 Ind.Dec. 352,153 Ind.App. 648 |
| Parties | Thomas L. PALMER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
R. Kent Witte, Columbus, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for plaintiff-appellee.
This case involved a criminal charge of rape brought by the State of Indiana against the defendant-appellant, of which he was found guilty by a jury and for which he was sentenced to the Indiana Youth Center.
On October 2, 1971, Katherine Hodge, a white female, 21 years of age, resided in one of several occupied upstairs apartments in the City of Columbus, Indiana, at 715 Sycamore Street.
Miss Hodge was a telephone operator in Columbus, and worked on the second shift, usually getting off work about 11 o'clock at night.
On the night in question, at about 12:30 A.M., Kathy Hodge was home from work on a hot night, watching the late show on television and clad in a T-shirt and panties. There was a rap at the door and she asked who was there and got no answer. The same thing was repeated a second time, at which time she put on a housecoat and without ascertaining who was at the door, opened the back door of her apartment onto an outside stairway.
The defendant-appellant was there and asked of the whereabouts of one Beverly Baugher, and was not invited into the apartment, but came in. (Miss Hodge was a good friend of Beverly Baugher, who was dating the defendant-appellant and had been with him at the apartment of Miss Hodge on two or three occasions.)
The defendant-appellant sat on one end of the couch and Kathy Hodge sat on the other, and they talked for some time. He discussed some paintings on the wall and wanted to see the rest of the apartment, including the bedroom, to see if there were any similar paintings in there, and Miss Hodge followed him in.
Kathy Hodge was standing a couple of feet from defendant-appellant in the bedroom and after he had looked it over she turned to leave, but states that when she did that Palmer hit her in the back of the neck, shoved her down on the bed and pinned her arm behind her. She related that the blow did not knock her onto the bed, but he pushed her there. While on the bed Palmer removed a 'muscle shirt' from his pocket, wrapped it around her mouth and started to tie it. Kathy was on her stomach on the bed and the defendant-appellant Palmer was on her back, pressing down on her back and his shoulders were over hers, according to her statement. Later he loosened the shirt. She related then that she asked Palmer to get off her back and leave her alone and he said 'shut up, shut up.' Here evidence is that he yanked her up off the bed, dragged her into the bathroom with her arm behind her back, and asked her to show him where the towels were. He took six or seven towels, brought her back to the bedroom, shoved her down on the bed, and started to tie her up with the towels. At that time she relates that she told him not to tie her up, and she wouldn't fight him. He then abandoned the use of the towels but continued to hold one of her arms and made her take off all of her clothes. Defendant-appellant Palmer then asked her to sit on the edge of the bed while he stood in front of her and took off all of his clothes. This was followed by Palmer pushing her back onto the bed, at which time he suggested the act of fellatio. She pretended she was going to do this, scooted toward the edge of the bed, noticed he had an erection, grabbed his testicles, dug her fingernails as hard as she could and jumped off the bed. Palmer, she further stated, groaned and pleaded for her to release her grip, but Kathy just kept digging her fingernails in as hard as she could, and jumped off the bed.
In the meantime she reached over the top of the bookcase, got a marble book end and hit him on the head with it, but when she struck him across the forehead she loosened her grip on his testicles. She then claimed he grabbed her arm, slapped her, knocked her down on the bed, and attempted to choke her and she started screaming.
Evidence of the screaming was corroborated by one Glenda Frazee, who lived in Apartment 2 of the same apartment house and she said that she did hear a woman scream, but thought it was kids living next door who had parties all the time. She thought the screaming came from 705 Sycamore Street, too. This scream was at approximately 3:00 or 3:30 A.M.
Wesley Sigler, also a resident of the apartment house, testified that in the early morning hours of October 2, 1971, he heard a woman scream, one time, and that it awakened him from his sleep. He further testified he did not know where the 'hollering' came from, as there were no distinct words. He further testified it was very hot that night and he was sleeping with the four windows open in his apartment.
One Donald C. Gates, who resided at 738 Seventh Street at the northwest corner of Seventh and Sycamore in Columbus, which was across the street from 715 Sycamore Street, testified that he was awakened on October 2, 1971, when he heard a lot of screaming and the screaming indicated words saying 'please, please, please don't, please.' He determined that the screams came from across the street and upstairs. His bedroom windows were open at the time. He estimated the screams lasted no more than a moment or two.
Gates further testified he had seen the defendant-appellant before, on several occasions, going in and out of the house at 705 Sycamore Street, and he saw him come out of that address at 10:30 A.M. on October 2, 1971.
The prosecuting witness testified that, after striking the defendant-appellant on the forehead she screamed as loud as she could; that Palmer was right on top of her in the bed and was choking her.
This evidence is corroborated by color photos of the sides, front and back of Miss Hodge's neck, showing deep discolored marks on the throat and face. The doctor testified they were gone in a few days.
Miss Hodge further testified that Palmer continued to slap her several more times and made her put a couple of band aids on his forehead. After the band aids were obtained in the bathroom she testified that Palmer dragged her back to the bedroom and had intercourse with her.
Intercourse occurred with Palmer on top and Kathy on her back and under him. Kathy related that she knew intercourse had occurred and penetration had been accomplished. She further stated that the intercourse lasted about one-half hour and she would not have had intercourse with Palmer if it had not been for threats and physical violence.
Miss Hodge further testified that after the initial act of intercourse the defendant-appellant took her back to the bathroom, holding her arm, while he urinated, and after which she related that he sat on the edge of the tub and she sat on the commode and he engaged her in a long conversation about school, I.Q., and his high intelligence. This lasted for about twenty minutes. An exhibit which is a photograph of the bathroom shows that the commode is in the end of the room and the bath tub is between it and the door.
He then asked her for whiskey and she had a part of a half pint from which he took a couple of large swallows.
They then went back to the bedroom and they had another act of intercourse. Palmer attempted anal penetration, but she started to scream. He removed his penis and then inserted it in her vagina. This act of intercourse lasted approximately one-half hour.
The prosecuting witness was uncertain whether he had a climax in either act of intercourse.
After this, they returned again to the bathroom and she had to urinate and again they sat as they had before and talked a few more minutes. She was not at all restrained by him, nor did he strike her at that time. Defendant-appellant told Miss Hodge that he had promised himself to have three acts of sexual intercourse with her, but he didn't think he could do it the third time. (He claimed to have had an act of sexual intercourse with some woman across the street before he came over.)
At this time the defendant-appellant got dressed, grabbed up what was left of the one-half pint of whiskey, and left, and the prosecuting witness pretended that she was going to go back to bed, but as soon as she determined he was gone she slipped on some clothes and drove to her aunt, Betty Beaman, at Taylorsville, Indiana, arriving there about 5:30 A.M. She told what had happened and they drove to the Bartholonew County Hospital, arriving a little after 6 A.M. The police were there, and a doctor. She was examined by a Dr. Daugherty at about 7 o'clock A.M. and questioned by the police. Dr. Daugherty testified he examined Miss Hodge, found the injuries to her neck and upper extremities were of no medical significance and needed no treatment. He then performed a routine pelvic examination, and found vaginal secretions but felt a laboratory evaluation was necessary to determine the absence or presence of sperm.
One Robert Bush, M.D., testified he was a pathologist at the Bartholomew County Hospital and at about 9 A.M., on October 2, 1971, he examined two glass slides and found numerous spermatozoa on the slides.
Defendant-appellant Thomas L. Palmer took the stand in his own behalf and testified that he did go to the home of the prosecuting witness and that he did visit with her and she came over and sat down next to him on the couch, where they 'petted' for about five or ten minutes, then they went to the bedroom where they fondled one another and sat on the bed without any disapproval on her part. He denies holding her arms or using any force to stay on the bed and said that this 'petting' caused him to become sexually excited. They both got up, took off their clothes, after which they continued to 'pet' and returned to the bed and he started to have sexual intercourse with her.
He further testified he...
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