Sanders v. State, 276S43
| Decision Date | 18 June 1976 |
| Docket Number | No. 276S43,276S43 |
| Citation | 264 Ind. 688,348 N.E.2d 642 |
| Parties | Bernard SANDERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
George T. Popcheff, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Bernard Lee Sanders appeals his conviction for kidnapping, rape and robbery. He was indicted and tried by jury. He was sentenced to life imprisonment for kidnapping, two years for rape and ten to twenty-five years for robbery.
The first issue presented is whether the verdict is supported by sufficient evidence. The evidence most favorable to the state and the reasonable inferences therefrom reveal that appellant forced his way at gunpoint into a vehicle parked at an Indianapolis shopping center. Appellant then taped the arms and mouth of the driver, and took her purse. After examining the purse, appellant was convinced by an accomplice to drive the vehicle away from the shopping center. During the drive, the accomplice threw the victim into the back seat, cut away her clothing and began to fondle her. When the vehicle stopped, appellant got out of the car and went into a house, while his accomplice remained in the car with the victim. Appellant returned to the car and told the accomplice that 'the house was o.k.,' whereupon the victim was taken inside and raped by the accomplice. While the victim was being raped, appellant was walking about conversing with the accomplice. After the rape, appellant helped the victim get her clothing on, retied her, and told her she could leave after fifteen minutes if she could free herself. The evidence also indicated that approximately two hundred dollars was missing from the victim's purse.
This evidence is clearly sufficient to support the verdict of guilty on the robbery and kidnapping charges, and we so hold. A more serious question arises with regard to the sufficiency of the evidence to sustain the rape conviction. The evidence unmistakably shows that appellant was not the principal in the rape; the legality of his conviction rests upon the sufficiency of the evidence of his accessoryship.
In Pace v. State (1966) 248 Ind. 146, 148--49, 224 N.E.2d 312, 313--14, we stated:
'The main question presented in the facts at bar is what evidence beyond the mere presence of a person at the scene of a crime is sufficient to sustain a connection as an accessory before the fact? This court has previously stated that negative acquiescence is not enough to constitute a person guilty of aiding and abetting the commission of a crime. Mattingly v. State (1952), 230 Ind. 431, 104 N.E.2d 721. Consequently, this court has always looked for affirmative conduct either in the form of acts or words from which reasonable inferences of a common design or purpose to effect the commission of a crime might be drawn. See Sage v. State (1890), 127 Ind. 15, 30, 26 N.E. 667; Peats v. State (1938), 213 Ind. 560, 574, 12 N.E.2d 270. However, it has been further stated by this court in Mobley v. State (1949), 227 Ind. 335, 344, 85 N.E.2d 489, 492:
". . . in the absence of anything in his conduct showing a design to encourage, incite, aid, abet or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that he assented to the commission of the crime, lent his countenance and approval thereto and thereby aided and abetted it . . .'
'It should be noted that the court in Mobley, supra, in stating that a failure to oppose the commission of a crime may be considered as aiding and abetting, impliedly qualified this statement wherein the Court stated at p. 344, 85 N.E.2d 489:
"This, it seems to us, is particularly true when the person who fails to interfere owes a duty to protect as a parent owes to a child.'
'In other cases relying on Mobley, supra, there has normally been some course of conduct of an affirmative nature to connect the defendant with the crime. See Cotton v. State (1965), 247 Ind. 56, 211 N.E.2d 158, (212 N.E.2d 159) (principal not abetting).
The evidence contained in the record discloses more than negative acquiescence on appellant's part. It discloses that appellant agreed to drive the car away after the robbery and continued driving the vehicle while his accomplice was forcefully fondling the victim in the back seat. It discloses that appellant went inside the house to check on its suitability for the rape, reported that it was o.k., and that appellant remained in voice contact with the accomplice while the accomplice was raping the victim. These actions represent affirmative...
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