Pillow v. State

• Decision Date: 03 July 1985
• Docket Number: No. 783S268,783S268
• Citation: 479 N.E.2d 1301
• Parties: Ernest C. PILLOW, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1301

479 N.E.2d 1301

Ernest C. PILLOW, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 783S268.

Supreme Court of Indiana.

July 3, 1985.

Richard D. Gilroy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from convictions of burglary, a class B felony, Ind.Code Sec. 35-43-2-1, criminal deviate conduct, a class A felony, Ind.Code Sec. 35-42-4-2, confinement, a class B felony, Ind.Code Sec. 35-42-3-3, rape, a class A felony, Ind.Code Sec. 35-42-4-1, and habitual offender, Ind.Code Sec. 35-50-2-8. Appellant received consecutive sentences of ten and thirty years for the burglary and criminal deviate conduct and concurrent sentences of ten and thirty years for the confinement and rape. The latter two sentences are also concurrent to the sentences on the first two counts. Appellant received a thirty-year sentence on the habitual offender count to be served consecutively to the sentences on the first two counts.

Appellant raises three issues on appeal: (1) whether there was sufficient evidence to support the jury's verdict; (2) whether the sentence imposed by the court was excessive and constituted cruel and unusual punishment; (3) whether the action of the prosecutor in asking prejudicial questions of one witness amounted to misconduct and constituted reversible error.

These are the facts that tend to support the determination of guilt. On April 18, 1980, at 12:30 p.m., appellant broke through the locked storm door of the victim's home. He threatened her with a gun and forced her to have oral sex and sexual intercourse. The victim's husband came home during this time and appellant forced him to lie face down on the floor and tied his hands behind his back. Appellant raped and sodomized the victim a second time. Two neighbors noticed appellant entering and leaving the victim's home and were able to describe appellant and the car he was driving. One neighbor wrote down the car's license plate number. This number was traced to appellant's father with whom appellant was living at the time of the crime. Both the victim and her husband positively identified the appellant in court as their assailant.

I.

Appellant argues that there was insufficient evidence to support his convictions. Specifically, he contends that there were discrepancies in the victim's identification no investigation of the similar appearance of himself and his brothers, and no consideration of the fact that he presented evidence of an alibi.

On review, this Court will not weigh the evidence nor judge the credibility of the witnesses. Rather, we will consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom which support the verdict. If there is substantial evidence of probative value which would permit a reasonable trier of fact to find the existence of each element of the offense beyond a reasonable doubt, the judgment must be affirmed. Pyle v. State (1985), Ind., 476 N.E.2d 124.

In this case, the victim gave consistent detailed descriptions of her assailant's appearance to the police and picked his photograph out of a police photographic array. She unequivocally identified him in court as her assailant and was able to point out several distinguishing features between appellant and his brother when she was shown the brother's picture. In addition to this, the husband also positively identified appellant during the trial as his assailant. The husband explained he had only had a short time to view appellant because appellant was wearing sunglasses and everytime he tried to look at him, appellant told him to turn away and not look. The husband picked two or three photos out of the police photographic array and one photo was of the appellant. Two neighbors were able to describe the man they saw entering and leaving the victim's house and the car he was driving.

The discrepancies in the victim's description which appellant points out concern the size of his moustache, the type of warm-up suit he was wearing, and whether he was wearing gloves. The victim also testified that her assailant had what felt like a wart on his penis. Appellant's former girlfriend testified that appellant did not have a wart on his penis. In pointing out these discrepancies, appellant is asking us to draw competing inferences from the body of facts and reweigh the evidence which we cannot do. It is the duty of the jury to resolve conflicts in the testimony and weigh the evidence. Hovis v. State (1983), Ind., 455 N.E.2d 577.

Appellant also presented evidence which showed that he was at work at 3:30 p.m. the day of the crime. Although he characterizes this as evidence of an alibi, the record shows that the crime occurred between 12:30 p.m. and 1:30 p.m., and that it would take approximately thirty minutes to drive from the scene of the crime to the place where appellant worked. It is reasonable to conclude from this evidence that appellant was able to be at the scene of the crime and still be able to report for work at 3:30 p.m. The triers of fact may draw reasonable inferences from facts established either by direct or circumstantial evidence. Smith v. State (1983), Ind., 455 N.E.2d 346. There was substantial evidence, as detailed above, to support the jury's determination that appellant was the individual who broke into the victim's home and assaulted her.

II.

Defendant argues that the total seventy-year sentence imposed by the court is excessive and unconstitutional. The Eighth Amendment to the United States Constitution and its Indiana counterpart safeguard against cruel or unusual punishment. These safeguards generally proscribe punishments that are grossly disproportionate to the severity of the crime or are of such an atrocious or obsolete form that they make no measurable contribution to acceptable goals of punishment. Frappier v. State (1983), Ind., 448 N.E.2d 1188. Here, appellant broke into the victim's home, threatened her with a gun, repeatedly assaulted her, and confined her husband. The sentence of seventy years is within the statutory limits and is neither atrocious nor excessive punishment in relation to the crimes appellant committed.

However, appellant also claims that the trial court failed to state any reasons for imposing the enhanced sentence of consecutive terms on Counts I and II. This Court has consistently held that it is within the discretion of the trial court whether the basic sentence for a crime will be increased or decreased or consecutive sentences be imposed because of aggravating or mitigating circumstances. The court must justify any increased sentence with a statement of the particular facts and circumstances it considered in finding aggravating factors. Tucker v. State (1983), Ind., 443 N.E.2d 840.

Here, the trial court did not give any statement of the reasons for imposing consecutive sentences in the sentencing order, and we do not have the transcript of the sentencing hearing before us. Therefore, since the record on appeal in this case is not adequate to support the imposition of the consecutive terms on Counts I and II, the cause is remanded with instructions that the trial court either enter findings, if any, to support the consecutive sentences, or, alternatively, to resentence appellant...