Riley v. State
| Decision Date | 10 March 1982 |
| Docket Number | No. 181,181 |
| Citation | 432 N.E.2d 15 |
| Parties | Louis RILEY, Appellant, v. STATE of Indiana, Appellee. S 3. |
| Court | Indiana Supreme Court |
Dennis R. Majewski, Terre Haute, for appellant.
Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
This is a direct appeal from a conviction of two counts of rape, Ind.Code Ann. § 35-42-2-1 (Burns 1979 Repl.), three counts of criminal deviate conduct, Ind.Code Ann. § 35-42-4-2 (Burns 1979 Repl.) and two counts of robbery, Ind.Code Ann. § 35-42-5-1 (Burns 1979 Repl.). Defendant-appellant was sentenced to jail terms of fifty years on one count of rape, and thirty years on each of the other six counts, the sentences to be served consecutively.
On appeal, defendant raises three claims:
(1) that the court exceeded its authority in imposing consecutive sentences;
(2) that the court erred in admitting certain evidence at the sentencing hearing; and
(3) that the court improperly admitted defendant's confession into evidence.
Defendant asserts that the consecutive sentences violate the ban on double jeopardy imposed by the Fifth Amendment to the United States Constitution because all seven counts actually involved only one criminal act. He contends that only one criminal act occurred because he took both of his female victims to the same place at the same time, raped each one and took their belongings. He further contends that proof of the criminal deviate conduct count required the same proof as did the rape and robbery. Defendant also argues that the fifty year sentence on one of the rape counts was excessive. But even if this Court determines that it is not excessive, he argues, then it is the maximum period to which he could be sentenced because it was "the greatest sentence involving the greatest offense."
In support of the claim that only one criminal act occurred, defendant cites Thompson v. State, (1972) 259 Ind. 587, 290 N.E.2d 724. In that case, we said that a defendant charged with both possession and sale of dangerous drugs should have been sentenced only on the greater charge, the sale count, because possession was necessarily included in the statutory definition of sale.
The present case is manifestly distinguishable from Thompson. First, it is plainly apparent that because there were two victims, the crime or crimes against one are separate and distinct from the crime or crimes against the other.
"The test for determining whether or not separate sentences may be imposed upon multiple counts is whether the offenses charged are themselves the same, not whether they all arose from the same criminal act or course of conduct." Pruitt v. State, (1978) 269 Ind. 559, 564-65, 382 N.E.2d 150.
Each count of rape, each count of criminal deviate conduct, and each count of robbery required proof of an additional fact-identity of a different victim-which the other offense did not. Therefore, at least two separate crimes were committed for which separate, and consecutive, sentences could properly be imposed.
Second, the assertion that only one offense occurred as to either victim, has no merit. Proof of rape requires proof, among other things, that a defendant had sexual intercourse with a member of the opposite sex, but proof of either criminal deviate conduct or robbery does not require such proof. Conversely, proof of criminal deviate conduct requires proof that a defendant engaged in "an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person," Ind.Code Ann. § 35-41-1-2 (Burns 1979 Repl.), and neither rape nor robbery requires such proof. And proof of robbery requires proof that the defendant has taken property from another person, while neither rape nor criminal deviate conduct requires such proof.
Rape, criminal deviate conduct, and robbery are separate and distinct offenses for which separate and consecutive sentences may be imposed, since proof of each requires proof of facts which the other offenses do not require. Defendant has not been punished twice for the same offense.
Regarding the assertion that the fifty-year sentence on one count of rape is excessive, no argument is presented in support of the claim, and no suggestion is made that the court failed to support the giving of an enhanced term with a statement of its reasons. Furthermore, the argument that fifty years is the maximum sentence to which defendant could have been exposed has no merit for the reasons set forth above. There was no error in imposing consecutive sentences.
Defendant next claims that the testimony of Dr. Justin, given during the sentencing hearing, should not have been allowed in evidence because the State had not served the defense with a list of...
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...exclusion of the evidence is the only way to preserve a defendant's right to a fair trial. Failure to do so is a waiver. Riley v. State, (1982) Ind., 432 N.E.2d 15, reh. denied; Miller v. State, (1980) 273 Ind. 493, 405 N.E.2d 909. Appellant does not show there was any discovery failure by ......
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