Sizemore v. State, No. 1079S295

Docket NºNo. 1079S295
Citation272 Ind. 26, 395 N.E.2d 783
Case DateOctober 25, 1979
CourtSupreme Court of Indiana

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.

Page 784

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 [272 Ind. 27] 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.

[272 Ind. 28] 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

Page 785

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 [272 Ind. 29]...

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24 practice notes
  • Dooley v. State, No. 1080S401
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Noviembre 1981
    ...Bledsoe v. State, (1980) Ind., 410 N.E.2d 1310, 1317; Lottie v. State, (1980) Ind., 406 N.E.2d 632, 636; Sizemore v. State, (1979) Ind., 395 N.E.2d 783, 784-85. The victim's testimony was for the jury to believe or disbelieve as they chose and to assign to it whatever weight they deemed app......
  • Weaver v. State, No. 06S00-9012-CR-733
    • United States
    • Indiana Supreme Court of Indiana
    • 20 Diciembre 1991
    ...477. Although venue is not an element of a crime, the State must prove venue by a preponderance of the evidence. Sizemore v. State (1979), 272 Ind. 26, 395 N.E.2d 783; Campbell, 500 N.E.2d 174. When venue is an issue, as it was in this case, it is not error to instruct the jury on the law a......
  • Tapp v. State, No. 1-180-A-17
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Junio 1980
    ...latitude in weighing the probative value of evidence as against the possible prejudice of its admission. Sizemore v. State, (1979) Ind., 395 N.E.2d 783; Boles v. State, (1975) 163 Ind.App. 196, 322 N.E.2d 722. Only where the trial court's action has resulted in such serious prejudice to the......
  • Campbell v. State, No. 1184S446
    • United States
    • Indiana Supreme Court of Indiana
    • 20 Noviembre 1986
    ...as the essential elements of the crimes as defined by statute, but only by a preponderance of the evidence. Sizemore v. State (1979), 272 Ind. 26, 395 N.E.2d 783. Proof of venue is required because the defendant has a constitutional right to be tried in the county in which the crime was com......
  • Request a trial to view additional results
24 cases
  • Dooley v. State, No. 1080S401
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Noviembre 1981
    ...Bledsoe v. State, (1980) Ind., 410 N.E.2d 1310, 1317; Lottie v. State, (1980) Ind., 406 N.E.2d 632, 636; Sizemore v. State, (1979) Ind., 395 N.E.2d 783, 784-85. The victim's testimony was for the jury to believe or disbelieve as they chose and to assign to it whatever weight they deemed app......
  • Weaver v. State, No. 06S00-9012-CR-733
    • United States
    • Indiana Supreme Court of Indiana
    • 20 Diciembre 1991
    ...477. Although venue is not an element of a crime, the State must prove venue by a preponderance of the evidence. Sizemore v. State (1979), 272 Ind. 26, 395 N.E.2d 783; Campbell, 500 N.E.2d 174. When venue is an issue, as it was in this case, it is not error to instruct the jury on the law a......
  • Tapp v. State, No. 1-180-A-17
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Junio 1980
    ...latitude in weighing the probative value of evidence as against the possible prejudice of its admission. Sizemore v. State, (1979) Ind., 395 N.E.2d 783; Boles v. State, (1975) 163 Ind.App. 196, 322 N.E.2d 722. Only where the trial court's action has resulted in such serious prejudice to the......
  • Campbell v. State, No. 1184S446
    • United States
    • Indiana Supreme Court of Indiana
    • 20 Noviembre 1986
    ...as the essential elements of the crimes as defined by statute, but only by a preponderance of the evidence. Sizemore v. State (1979), 272 Ind. 26, 395 N.E.2d 783. Proof of venue is required because the defendant has a constitutional right to be tried in the county in which the crime was com......
  • Request a trial to view additional results

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