Sizemore v. State

• Decision Date: 25 October 1979
• Docket Number: No. 1079S295,1079S295
• Parties: Michael Ray SIZEMORE, Jeffrey Allen Sandlin, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 783

395 N.E.2d 783

272 Ind. 26

Michael Ray SIZEMORE, Jeffrey Allen Sandlin, Appellants, v. STATE of Indiana, Appellee.

No. 1079S295.

Supreme Court of Indiana.

Oct. 25, 1979.

Walter E. Bravard, Jr., Indianapolis, Richard L. Tandy, Greenwood, for appellants.

Theodore L. Sendak, Atty. Gen., Robert J. Black, Victoria R. Van Duren, Deputy Attys. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This cause comes to us on petitions to transfer filed by the State and by Appellant Sandlin. The State's petition is based on a claim of error in the decision of the Court of Appeals in regard to the issue of the sufficiency of the evidence. The petition of the appellant Sandlin claims error in the opinion of the Court of Appeals in regard to the issues of the references made to K. C.'s virginity and the subsequent admonition to the jury, procedures followed by the trial court, prosecutorial misconduct and venue.

Appellants were charged individually with the offense of rape and convicted. The Court of Appeals reversed and remanded for modification of the convictions to assault and battery with intent to gratify sexual desires and to impose sentence accordingly. Sizemore v. State, (1979) Ind.App., 384 N.E.2d 1152. Their decision was based upon their determination that the evidence was insufficient to establish rape and focused on the requirement to prove penetration by a penis as to both men. The Court of Appeals concluded that the prosecutrix' testimony was equivocal, citing Wims v. State, (1977) Ind., 370 N.E.2d 358, and Bryant v. State, (1978) Ind., 376 N.E.2d 1123, for the proposition that equivocal or weak testimony may not attain the necessary quality of substantive evidence of probative value. The opinion concludes that the evidence was insufficient as a matter of law to convict Sizemore and Sandlin individually of rape.

We disagree, grant transfer and sustain the convictions for rape.

The prosecutrix testified in great detail as to what occurred. In regard to defendant Sizemore she testified that he tried to put his private parts into her and he did a little. She testified that her private parts hurt, that this continued for what seemed a long time. She testified in regard to defendant Sandlin that he had put his privates into her a couple of times and tried to get it in as far as he could. Proof of the slightest penetration is sufficient to constitute rape. Garr v. State, (1974) 262 Ind. 134, 312 N.E.2d 70.

It is unnecessary to set out all the additional descriptions of these acts. K. C., testified and was questioned for over 220 pages of the transcript of this trial. Much questioning was directed to specifics regarding the incidents. It appears abundantly clear from the lengthy testimony that this young girl gave sufficient testimony of penetration. It is equally clear that she may have been confused by some of the terminology employed by the attorneys. She was repeatedly questioned and there was ample testimony presented by her of penetration as to both defendants.

The part of the testimony emphasized by the Court of Appeals in its opinion to the effect that she was uncertain was the result of questioning as to whether it was possible that she had been penetrated by a finger. At one point she answered, "I don't know." It is distorting the testimony of this witness to select one small part of her entire testimony and to emphasize and amplify it and then characterize it as equivocal or uncertain. It is apparent when read in context that these responses were made under great emotion and were more likely a response expressing a desire to end the continued questioning or a statement that she did not know whether such a thing were possible. It is well-settled that a conviction of rape may be on the testimony of the victim alone. Harris v. State, (1978) Ind., 373 N.E.2d 149; Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d 216; Lynch v. State, (1974) 262 Ind. 360, 316 N.E.2d 372.

The Court of Appeals quotes extensively from Vuncannon v. State, (1970) 254 Ind. 206, 258 N.E.2d 639 for the requirement of more than a mere scintilla of evidence to prove guilt and that evidence must support a conclusion of guilt beyond a reasonable doubt. These general statements are correct. However, Wims v. State, (1977) Ind., 370 N.E.2d 358 and Bryant v. State, (1978) Ind., 376 N.E.2d 1123, cited by the Court of Appeals, do not require a reversal of this conviction. In Wims, supra, the testimony of three eyewitnesses to a robbery was uncertain as to the identification of the robber. However, the testimony of one eyewitness concerning his identification was held to be sufficient for the jury to properly make a determination of guilt. In Bryant, supra, there was testimony of an eyewitness to a shooting which was corroborated by the defendant himself with respect to his being on the scene and to his having had an altercation with the victim. The conflict in testimony centered on who fired the gun, the defendant or some unknown third person. It was held that this evidence was sufficient to support the conviction.

In the present case the testimony of both defendants corroborate the testimony of the victim as to the basic facts of the events of the evening, their presence at the scene and their returning the girls to a location close to their home. The conflict occurs because the men claim they did not touch K. C. The testimony of the girl's mother, the investigating officers and the examining physician was consistent with the victim's testimony as to her rape. Dr. Coughenour testified that there were five or six stellate lacerations on K. C. and that the interior of the vagina and the cervix were red. He further testified that a finger or fingers could not have caused these conditions. A jury may infer penetration from the physical condition of the victim soon after the incident. Weaver v. State, (1963) 243 Ind. 560, 187 N.E.2d 485. The jury heard all of these witnesses and all of the evidence and made its determination. There is no sound reason to disturb that judgment.

We have examined the record and find that the Court of Appeals has correctly decided the other issues raised in these petitions. We therefore adopt the following from the opinion of Judge Robertson:

"Initially, Sizemore and Sandlin allege error in the purported grant of the State's motion in limine based on the Rape Shield Statute, thereby precluding cross-examination into the sexual background of the prosecutrix. The constitutional attacks launched, however, were resolved against Sizemore and Sandlin in Roberts v. State, (1978) Ind., 373 N.E.2d 1103. We fail to see how this case is materially different from Roberts, and hence that case is controlling here there is no showing that cross-examination would have revealed any evidence of probative value with respect to the guilt or innocence of Sizemore and Sandlin.

Nevertheless, it is asserted that the statute is infirm as applied in this case since the trial court 'permitted' the prosecution to bring out evidence concerning her Lack of sexual activity. When reference was made to her virginity, however, the jury was promptly admonished. Such a curative measure is presumed sufficient to avoid reversible error, Ballard v. State, (1974), 262 Ind. 482, 318 N.E.2d 798, and we have not been persuaded to the contrary.

Sandlin and Sizemore also contend that it was reversible error to allow the prosecutrix to testify as to her age at the time of the offense (14) since a charge of statutory rape had been dismissed; hence, the age of the victim, they argue, is irrelevant and would only tend to inflame the jury. The trial court is given wide latitude in weighing the probative value of the evidence with respect to a material fact as against the possible prejudice attendant to its admission. Boles v. State, (1975), 163 Ind.App. 196, 322 N.E.2d 722. As discussed Infra, the age of the prosecutrix was relevant to the lesser included offense of assault and battery with intent to gratify sexual desires. Therefore, we find no abuse of discretion and no error. Boles, supra.

Sizemore and Sandlin additionally allege error on the grounds that the statements were entered without deletions of references to the defendant who did not make the statement. Bruton v. United States, (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Here, as contrasted with Bruton, the 'confessor' did take the stand and hence the co-defendant had fair opportunity to cross-examine the confessor. Buchanan v. State, (1975), 263 Ind. 360, 332 N.E.2d 213. Reliance on Bruton is therefore misplaced.

Sandlin and Sizemore next allege error in the refusal to grant a motion for mistrial due to improper comments by the prosecution in closing argument. The only record presented here is the attempted reconstruction during the hearing on the motions to correct error since, for some reason, closing arguments were...