Sizemore v. State

• Decision Date: 29 January 1979
• Docket Number: No. 1-1277A287,1-1277A287
• Citation: 384 N.E.2d 1152,179 Ind.App. 217
• Parties: Michael Ray SIZEMORE, Jeffrey Allen Sandlin, Appellants (Defendants-below), v. STATE of Indiana, Appellees (Plaintiffs-below).
• Court: Indiana Appellate Court

Page 1152

384 N.E.2d 1152

179 Ind.App. 217

Michael Ray SIZEMORE, Jeffrey Allen Sandlin, Appellants (Defendants-below), v. STATE of Indiana, Appellees (Plaintiffs-below).

No. 1-1277A287.

Court of Appeals of Indiana, First District.

Jan. 29, 1979.

Walter E. Bravard, Jr., Richards, Bennett, Bravard & Bibbins, Indianapolis, Richard L. Tandy, Greenwood, for appellants.

Theodore L. Sendak, Atty. Gen. of Indiana, Robert J. Black, Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellees.

ROBERTSON, Judge.

Defendants-appellants Jeffrey Allen Sandlin (Sandlin) and Michael Ray Sizemore (Sizemore) were charged separately with the rape ¹ of K.C. (prosecutrix) and both were found guilty of rape in a joint trial.

The evidence most favorable to the State of Indiana (State) discloses the following sequence of events. On August 3, 1976, at approximately 9:00 P.M., the prosecutrix and her older sister Cheryl were waiting (to no avail) at Shazam's on the south side of Indianapolis for their boyfriends. Sizemore, Sandlin, and Sandlin's older brother Jack spotted the girls standing by themselves at about 10:00 P.M. A conversation ensued which resulted in both girls getting in the car with Jack Sandlin, Sandlin and Sizemore. The entourage proceeded to procure various alcoholic beverages, a bag of marijuana, and some various intoxicants while driving around in the automobile; however, the prosecutrix asserted she had but one small sip of both the "Peppermint Schnapps" and "Southern Comfort," and one "toke" of the marijuana. Eventually, the auto was parked in the area of a golf course, and the prosecutrix, Sandlin and Sizemore exited while Jack Sandlin remained in the car with Cheryl.

The prosecutrix testified that throughout the course of events she was scared and "put in fear," and only consented initially to be with the group in order to protect her older sister. Thus, when Sandlin returned to the car, the prosecutrix told Sizemore she had to use the restroom, and then attempted to escape. She testified that Sizemore caught her and threatened to hit her with a beer bottle, and then forcibly removed her pants and compelled her to perform oral sex. He then "tried to have sex" with the prosecutrix and succeeded in slight penetration, but she was unsure whether the penetration was accomplished by Sizemore's penis or his fingers.

When Sandlin returned, the prosecutrix was buttoning her pants. Allegedly, Sandlin then proceeded to forcibly remove her pants, and got on top of her. Again, the prosecutrix acknowledged penetration, but when asked if it could have been done by his hand, she responded that she did not know. The girls were returned home about midnight. The hair of the prosecutrix was in disarray and blood was visibly present in the crotch of her pants. At about 3:00 A.M., she was examined by a Doctor Cougenhour who testified that he observed interior vaginal wounds which, in his opinion, were caused by forcible intercourse. ² At the close of the evidence, the jury found both Sandlin and Sizemore guilty of rape, and the jury recommendation of a four year sentence was subsequently imposed.

Initially, Sizemore and Sandlin allege error in the purported grant of the State's motion in limine based on the Rape Shield Statute, ³ 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. ⁴

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 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. ⁵ Therefore, we find no abuse of discretion and no error. Boles, supra.

Sizemore and Sandlin contend that it was error to instruct the jury that a finding of guilty could be based on the uncorroborated testimony of the prosecutrix since, we assume, she was unable to definitively assert that penetration was due to a penis rather than to fingers or a hand. Although the equivocal nature of her testimony will be discussed in detail Infra, suffice it to say that such an instruction is a correct statement of the law. Buchanan v. State (1976), Ind.App., 348 N.E.2d 70; Harris v. State (1978), Ind., 373 N.E.2d 149. Further, since all instructions are to be read together to discern if reversible error exists, Carter v. State (1977), Ind., 361 N.E.2d 1208, Cert. den. 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142, we note that the jury was also carefully instructed as to their function in ascertaining the credibility of witnesses. Hence, this contention presents no error.

Sizemore and Sandlin next contend that statements by the defendants were improperly introduced prior to the establishment of the Corpus delicti. Although preferable to require evidence of the Corpus delicti before the admission of confessions or admissions, the order of proof is within the sound discretion of the trial court. Lee v. State (1976), Ind.App., 349 N.E.2d 214; Garr v. State (1974), 262 Ind. 134, 312 N.E.2d 70. Moreover, the crux of this contention is based on the failure to establish venue prior to the introduction of the statements. In this case, however, the statements were being entered primarily for the purpose of establishing venue. As such, we are unwilling to say the trial court abused its discretion on the facts of this case.

Sizemore and Sandlin additionally allege error on the grounds that the statements were entered without deletion 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 not transcribed. Nevertheless, the evidence favorable to the State disclosed that the defense, in closing argument, emphasized that "twenty years for rape is a long time." In rebuttal, the State asserted that the jury had the duty to fix the sentence, and after that it was in the hands of the Department of Corrections. The trial judge stated he had no recollection of the terms "probation" or "parole" being used. Although we do not condone the inferential use of "Department of Corrections", we are of the opinion that under the circumstances of this particular case, appellants have failed to establish, as they must, an abuse of discretion by the trial court in denying their motion for a mistrial. Randolph v. State (1978), Ind., 378 N.E.2d 828. ⁶

Lastly, Sandlin and Sizemore contend there was insufficient evidence to sustain a conviction. On appeal, this court will not weigh the evidence or judge the credibility of witnesses; rather, our function is to determine if there is substantial evidence of probative value to support the verdict by considering the evidence and reasonable inferences to be drawn therefrom in favor of the State. Sleck v. State (1977), Ind.App., 369 N.E.2d 963; Smith v. State (1977), Ind.App., 363 N.E.2d 1295.

Sandlin and Sizemore contend that there was insufficient evidence to establish venue, and hence their convictions cannot stand. Despite the multitude of cases wherein the issue of venue has been raised, this State has yet to define the proper standard of proof, i. e., whether it must be by a preponderance of the evidence or beyond a reasonable doubt. Due to the facts at bar, and the continuing void in our common law, we deem it appropriate to establish the proper burden of proof for venue.

Venue has been described variously as a material Element of a crime, and as an essential Fact. With respect to the former, See Butler v. State (1978), Ind.App., 380 N.E.2d 611; Quassy v. State (1975), Ind.App., 338 N.E.2d 283; Jackson v. State (1918), 187 Ind. 694, 121 N.E. 114. With respect to the latter, See Penman v. State (1975), Ind.App., 325 N.E.2d 478; Johnson v. State (1957), 236 Ind. 509, 141 N.E.2d 444. Indiana appellate courts have also required substantial evidence of probative value for every material Element of an offense, See, e. g., Simpson v. State (1975), 164 Ind.App. 307, 328 N.E.2d 462; Grider v. State (1974), 162 Ind.App. 354, 319 N.E.2d 668; McAllister v. State (1974), 161 Ind.App. 644, 317 N.E.2d 200; Gray v. State (1974), 161 Ind.App. 70, 314 N.E.2d 798; ...