Sizemore v. State, No. 1-1277A287

Docket NºNo. 1-1277A287
Citation384 N.E.2d 1152, 179 Ind.App. 217
Case DateJanuary 29, 1979

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.

Page 1154

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

Page 1155

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

Page 1156

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,...

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5 practice notes
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • October 25, 1979
    ...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 prov......
  • Skaggs v. State, No. 4-781A45
    • United States
    • Indiana Court of Appeals of Indiana
    • July 26, 1982
    ...he contends it was inappropriate in this case. His authority for that position is drawn from Sizemore v. State, (1979) Ind.App., 384 N.E.2d 1152. Sizemore was vacated by our Supreme Court and is no longer precedential authority. This instruction is proper in such cases. Page 308 Tillman, su......
  • Coburn v. State, No. 2-882
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1984
    ...crime was committed. Art. I, Sec. 13, Constitution of Indiana; I.C. 35-1.1-2-1(a) (Burns Code Ed., Repl.1979); Sizemore v. State, (1979) 179 Ind.App. 217, 384 N.E.2d 1152. Under I.C. 35-1.1-2-1(d), if "the commission of an offense is commenced in one county and is consummated in another cou......
  • Crowder v. State, No. 1-979A259
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1980
    ...the reason that in a criminal case the State must prove venue by a preponderance of the evidence. Sizemore v. State, (1979) Ind.App., 384 N.E.2d 1152. There was no evidence that Crowder ever possessed any marijuana in Posey County, Indiana, and the Posey County Court should have sustained C......
  • Request a trial to view additional results
5 cases
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • October 25, 1979
    ...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 prov......
  • Skaggs v. State, No. 4-781A45
    • United States
    • Indiana Court of Appeals of Indiana
    • July 26, 1982
    ...he contends it was inappropriate in this case. His authority for that position is drawn from Sizemore v. State, (1979) Ind.App., 384 N.E.2d 1152. Sizemore was vacated by our Supreme Court and is no longer precedential authority. This instruction is proper in such cases. Page 308 Tillman, su......
  • Coburn v. State, No. 2-882
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1984
    ...crime was committed. Art. I, Sec. 13, Constitution of Indiana; I.C. 35-1.1-2-1(a) (Burns Code Ed., Repl.1979); Sizemore v. State, (1979) 179 Ind.App. 217, 384 N.E.2d 1152. Under I.C. 35-1.1-2-1(d), if "the commission of an offense is commenced in one county and is consummated in another cou......
  • Crowder v. State, No. 1-979A259
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1980
    ...the reason that in a criminal case the State must prove venue by a preponderance of the evidence. Sizemore v. State, (1979) Ind.App., 384 N.E.2d 1152. There was no evidence that Crowder ever possessed any marijuana in Posey County, Indiana, and the Posey County Court should have sustained C......
  • Request a trial to view additional results

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