Roland v. State

Decision Date15 December 1986
Docket NumberNo. 484S122,484S122
Citation501 N.E.2d 1034
PartiesPhillip Randall ROLAND, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William D. McCarty, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Phillip Randall Roland was convicted of rape, a class B felony, at the conclusion of a jury trial in the Madison Circuit Court. He was further adjudged to be an habitual offender. He was sentenced to eighteen and one-half (18 1/2) years, enhanced by thirty (30) years due to the habitual offender finding. The following issues are raised on direct appeal:

1. sufficiency of the evidence;

2. admission of various testimony and the form of cross-examination;

3. jury instructions;

4. admission of State's exhibits; and

5. sentencing.

I

Appellant maintains his conviction was based on insufficient evidence. In support, he argues that the victim's testimony is, among other things, "inherently improbable and implausible," and "patently absurd." He argues that the sexual intercourse occurred consensually.

Where the record clearly shows the evidence was so incredible as to be beyond belief, or where there was no probative evidence from which the jury could have found the defendant guilty beyond a reasonable doubt, we will reverse a jury verdict due to insufficient evidence. Hodge v. State (1982), Ind., 442 N.E.2d 1006, 1009. On the other hand, where there is substantial evidence of probative value from which the jury could have found beyond a reasonable doubt that the defendant committed the offense, we will not disturb the verdict. Harris v. State (1985), Ind., 480 N.E.2d 932, 937. Furthermore, when reviewing such issues, we do not reweigh the evidence or judge the witnesses' credibility; rather, we look to the evidence most favorable to the State, along with all reasonable inferences therefrom. Id. Lisenby v. State (1986), Ind., 493 N.E.2d 780, 782. Finally, in rape cases, we often have held that a conviction may be sustained solely on the testimony of the victim. Rhone v. State (1986), Ind., 492 N.E.2d 1063, 1066; Johnson v. State (1982), Ind., 432 N.E.2d 1358, 1361. The issue of consent is one for the jury, as it deals with an issue of fact.

In the present case, the evidence was conflicting. However, it is the duty of the jury to resolve that conflict, and once they do, our task is limited to assuring there is sufficient evidence to support their verdict. On June 21, 1983, the victim moved out of the apartment she had shared with Appellant. She stated that she feared for her own life and the lives of her two children, and that she wanted to live separately from Appellant. At approximately 11:00 p.m. that evening, Appellant arrived at the victim's new apartment, and forced his way in. He yelled at the victim for leaving him, threatened to rape her, and passed out from the effects of drugs and alcohol he had consumed. The victim then went to the police station, where the officer explained to her that no felony warrant could be issued at that time, and that because this was a domestic situation, the investigating officer might not be authorized to arrest Appellant. He further explained that even an arrest could result in Appellant's immediate release. The officer and the victim, both knowing Appellant and fearing he might return, even more violent, if arrested, decided since he had passed out, it might be best to leave him alone until morning, when a felony charge could be filed. The victim declined to go to a shelter that night because her children needed clothes and bottles which were at the apartment. The victim drove around with her children and sat in the park, and eventually returned to the apartment at about 4:00 a.m. At about 7:00 a.m., while she was getting ready for work, Appellant confronted the victim and forced her to have sexual intercourse. This evidence is sufficient to support Appellant's conviction. His argument seeks only to have us reweigh the evidence, which we will not do.

II

Appellant contends the trial court erred in permitting the juvenile record of his witness Jerry Carter to be used for impeachment. Carter, the seventeen (17) year old nephew of Appellant, briefly testified that he helped Appellant move the victim's belongings into her new apartment. He further testified that the victim told Appellant he could not see her children again. He testified that the victim told Appellant "it would be all right for him to come over to her apartment and stay there." On cross-examination, Carter was asked if he had been convicted of burglary, to which he eventually answered in the negative. He was then asked if he had been adjudicated a delinquent due to the theft of electronic equipment from a store, to which he answered, "Yes."

We have held that juvenile adjudications may not be used for impeachment purposes because they are not the equivalent of a criminal conviction. Pallett v. State (1978), 269 Ind. 396, 401, 381 N.E.2d 452, 456, reh. denied (1978). However, not every error committed at trial requires a reversal of the conviction; there must be some showing of prejudice to Appellant. Harrison v. State (1986), Ind., 496 N.E.2d 49, 52. Appellant alleges this error denied him a fair trial, yet makes no showing of why this is so. Carter's testimony was brief, and, to a great extent, merely cumulative of other testimony. Furthermore, it had little, if any, bearing on the events of the morning of June 22, 1983. Although it was error to allow reference to Carter's juvenile adjudication based on theft, we fail to find it so prejudicial to Appellant that it requires reversal.

Appellant further contends the trial court erred in allowing the following reference to his kidnapping his son during the testimony of State's Witness Karen Frank:

"Q. How frequently did you babysit for [the victim]?

A. Uh, two nights.

Q. What two nights were they?

A. Uh, the Sunday night that her child was kidnapped."

Appellant immediately objected and moved for mistrial. The objection was sustained and the jury admonished to disregard the comment, but the motion for mistrial was denied. No reference was made at this point that it was Appellant who had kidnapped the child. Later, the victim and Officer Gaertner were properly allowed to testify as to a telephone conversation wherein Appellant threatened to kill the victim, and used possession of his child as leverage to convince the victim to drop the rape charge. In light of the admonition to the jury and the subsequent proper admission of similar evidence, we find no error.

Officer Wasilewski testified regarding eventually finding Appellant after he had taken the victim's child:

"A. He was under her bed in a bedroom.

Q. What happened?

A. Officer Gaertner spotted him, ordered him out, he refused to come out. Officer Guthrie was at the back of the house and at that time I asked him to come in because the subject has a history of being violent with the police."

Appellant immediately objected, and the trial court sustained the objection and admonished the jury. The witness completed his testimony, and two other witnesses testified, after which Appellant moved for a mistrial based on the testimony above. The motion was denied. This brief statement by the police officer did not place Appellant in the grave peril required for a mistrial. Wallace v. State (1983), Ind., 453 N.E.2d 245, 247, reh. denied (1983). Furthermore, the admonition, which was the only remedy Appellant sought at the time of the objection, is presumed to have cured any prejudice that might have resulted from the testimony. Manns v. State (1985), Ind., 472 N.E.2d 918, 921.

Appellant alleges trial court error in allowing testimony regarding a fight in a tavern on the night of the rape, June 21, 1983. Appellant's version of what occurred that night is that he was drinking and had taken speed; he had been to various locations; he arrived at the victim's apartment, bumping the door with his shoulder and tapping on the door as he identified himself; the victim invited him in; he talked to her and played with his son; he shaved, showered and lay on the bed; the victim took off her clothes, joined him, and engaged in oral foreplay until she aroused him, and engaged in sexual intercourse with him. This differs vastly from the victim's version, related in section I of this opinion. Both versions purported to explain what happened the evening of June 21, 1983, the hours preceding the rape. The testimony at issue here further attempted to clear up the discrepancies between the two versions. Clemons v. State (1981), Ind., 424 N.E.2d 113, 117.

During direct examination of the victim, the following dialogue took place:

"Q: [I]n those last three exhibits [Appellant] states that he loved [his son]. Do you believe he loved [his son]?

A. No, I don't. He sexually molested [his son]."

Appellant objected and sought a mistrial, which was denied. After lengthy discussion with counsel, the trial court sustained the objection and admonished the jury thus:

"The witness ... improperly volunteered a statement that was not responsive to Mr. McNabney's last question. You are directed to disregard the remark and the remark is ordered stricken from the record."

The jury was instructed at the close of the evidence not to consider any evidence to which an objection had been sustained.

The witness' remark here appears not to have been anticipated or elicited by the State. The trial court promptly explained to the jury that the response was improper and should not be considered. At the time of final instructions, the jury was so advised once again. We cannot say that in light of the admonition and instruction, this testimony had a significant impact on the jury. Jarrett v. State (1984), Ind., 465 N.E.2d 1097, 1100.

Finally, Appellant alleges he was denied a fair trial due to improper cross examination...

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