Spurlock v. State

• Decision Date: 26 October 1999
• Docket Number: No. 70A01-9812-CR-452.,70A01-9812-CR-452.
• Citation: 718 N.E.2d 773
• Parties: Jarman SPURLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

718 N.E.2d 773

Jarman SPURLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 70A01-9812-CR-452.

Court of Appeals of Indiana.

October 26, 1999.

Transfer Denied December 15, 1999.

Kris Meltzer, Stubbs & Meltzer, Shelbyville, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

GARRARD, Judge.

Case Summary

Appellant Jarman Spurlock (Spurlock) appeals his convictions for Child Molesting,¹ a Class C felony, and two counts of Incest,² both Class D felonies. On appeal, Spurlock presents the following issues: (1) Whether his convictions were supported by sufficient evidence: (2) Whether his convictions for Child Molesting and Incest violate the Double Jeopardy Clause; (3) Whether he was denied the right to an impartial jury; and (4) Whether he was denied the effective assistance of counsel.

We affirm.

Facts and Procedural History

The facts most favorable to the verdict reveal that Spurlock's biological father, Elmer Spurlock, married Bernice Spurlock when Spurlock was four years old. During the marriage, Elmer and Bernice had three daughters, including J.S.R., with whom Spurlock resided for several years. In 1982, Spurlock married and moved into an apartment in Rushville with his wife. In March of 1982 their first child was born.

In June of 1983, Spurlock's wife gave birth to their second child. As a result, Spurlock, who was then twenty-one years old, asked his half-sister, J.S.R., who was then fifteen years old, to stay with them for a while to help care for the older child. One morning, while Spurlock's wife was asleep in another room, Spurlock entered the room where J.S.R. had been staying, climbed into her bed, pulled off her shorts and forced her to have sexual intercourse. Spurlock then threatened to kill J.S.R. if she told anyone what had happened.

In December of 1985, Spurlock's wife had surgery and again needed help caring for her children. J.S.R. reluctantly agreed. One morning Spurlock "jumped" on J.S.R. while she was lying on the living room couch. Although J.S.R. attempted to push Spurlock away, Spurlock again forced her to have sexual intercourse with him.

Eventually, in June of 1986 J.S.R. told her mother about the two incidents with Spurlock and, one year later, related the details to investigating officer Robert M. Bridges of the Rushville Police Department. Thereafter, on July 8, 1987, Spurlock was charged with Child Molesting, as a Class C felony, and Incest, as a Class D felony, with regard to the June 1983 incident, and Incest, as a Class D felony, with regard to the December 1985 incident.³

During the jury trial, which commenced on February 27, 1989, several witnesses testified on behalf of the State including J.S.R. who related the details surrounding both the June 1983 and December 1985 incidents. After the jury had reached a verdict, but before the verdict was announced in open court, one of the jurors suffered a seizure in the jury room. As a result, the court asked both the State and defense counsel if they would agree to resume the proceedings the following afternoon so that all of the jurors could be present for the reading of the verdict. Although the parties initially agreed to the court's request, shortly thereafter the juror regained consciousness. Consequently, the trial judge then asked both attorneys if they would agree to allow the bailiff to ask the juror if she felt able to return to the courtroom for a reading of the verdict. Again, both attorneys agreed to the court's request. Thereafter, all of the jurors entered the courtroom.

Before the verdict was read, the court asked the jury's foreman if the verdict had been reached before the medical emergency occurred and the "medical and/or sheriff's personnel" entered the jury room. Record at 461. After the foreman responded that it had, the court instructed the foreman to give the verdict to the bailiff. At that point, the foreman informed the bailiff that he had already given the papers to the bailiff. Shortly thereafter, the bailiff located the verdict, which apparently was nearby, and handed it to the judge who announced that Spurlock had been found guilty on all counts. Following a sentencing hearing on March 22, 1989, Spurlock was sentenced to seven years imprisonment for child molesting, and three years for each count of incest, with all sentences to be served concurrently.⁴

Discussion and Decision

I. Sufficiency of the Evidence

Spurlock first challenges the sufficiency of the evidence supporting each of his convictions. Our standard for reviewing sufficiency claims is well settled. We consider only the evidence most favorable to the verdict and do not reweigh the evidence or judge witness credibility. Butler v. State, 622 N.E.2d 1035, 1039 (Ind.Ct.App.1993), reh'g denied, trans. denied. If we determine that the convictions are supported by substantial evidence of probative value, we will affirm. Id.

Here, the record reveals that the State charged Spurlock with child molesting and one count of incest with regard to the single act of sexual intercourse which occurred in June of 1983. Specifically, the State alleged that Spurlock had committed child molesting by performing sexual intercourse with J.S.R., who was at least twelve years old but under the age of sixteen in June of 1983 when Spurlock was at least sixteen years old. The State also alleged that Spurlock had committed incest by engaging in sexual intercourse with J.S.R., while Spurlock was at least eighteen years old, with the knowledge that J.S.R. was his half-sister. The record further reveals that the State charged Spurlock with a second count of incest based upon the December 1985 incident. In particular, the State alleged that Spurlock, who was at least eighteen years old, engaged in sexual intercourse with J.S.R., with knowledge that J.S.R. was his half-sister. According to Spurlock, the State failed to prove that J.S.R. was present at Spurlock's apartment in June of 1983 and that an act of sexual intercourse had occurred in both June of 1983 and December of 1985.

However, the record reveals that J.S.R. testified at trial and described the details surrounding both the June 1983 and December 1985 incidents. Specifically, she testified that in June of 1983 she stayed with her half-brother in his apartment to take care of his first child soon after Spurlock's wife gave birth to their second child. J.S.R. further testified that while she was staying with the family, Spurlock crawled into the bed where she had been sleeping, pulled off her shorts and forced her to submit to sexual intercourse. J.S.R. also testified that in December of 1985, she again reluctantly agreed to stay with Spurlock's family and that one morning, while she was lying on the living room couch, Spurlock "jumped" on her, and forced her to engage in sexual intercourse. Record at 334.

Despite this testimony and Spurlock's concession that generally the uncorroborated testimony of a victim is sufficient to sustain a conviction, see Baxter v. State, 522 N.E.2d 362, 365 (Ind.1988)

(finding that the uncorroborated testimony of the victim alone is sufficient to support a conviction for child molesting and incest), reh'g denied, Spurlock contends that J.S.R.'s testimony is inherently improbable. Specifically, he contends that J.S.R. was not a credible witness because her testimony was contradicted by Spurlock's ex-wife who testified that she did not recall J.S.R. staying with the family in June of 1983 and, with regard to the December 1985 incident, she was asleep in an adjacent room but did not hear noises which would have indicated a struggle.

This court has created an exception to the general rule that we will not judge witness credibility when a single witness's testimony is "inherently improbable" or of "incredible dubiosity." See White v. State, 706 N.E.2d 1078, 1079 (Ind.1999)

. However, the exception is limited to cases where a sole witness presents "inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial evidence...." Sisson v. State, 710 N.E.2d 203, 206 (Ind.Ct. App.1999),

trans. denied. Despite Spurlock's contention, this case does not fall within the exception.

Initially, we note that Spurlock has failed to point to any part of J.S.R.'s testimony which was inherently contradictory or coerced. Additionally, our review of the record reveals that J.S.R. testified unequivocally that she had stayed with the family in 1983 and that Jarman forced her to engage in sexual intercourse in both June of 1983 and December of 1985. Finally, there was additional evidence which tended to support J.S.R.'s testimony that she had stayed with Spurlock in June of 1983. During trial, Spurlock's ex-wife testified that her first child was born in March of 1982 and that her second child was born on June 13, 1983. This evidence is clearly consistent with and tends to support J.S.R.'s testimony that she stayed with Spurlock's family in June of 1983 to help Spurlock's ex-wife with the children after the birth of their second child. The record also reveals that Officer Bridges testified, without objection, that while interviewing J.S.R., she revealed that she had been forced to engage in sexual intercourse with Spurlock in June of 1983 and December of 1985. Therefore, we find no evidence that J.S.R.'s testimony was of incredible dubiosity or inherently improbable. Rather, Spurlock's argument is merely an invitation to reweigh the evidence which we will not do. The trier of fact was entitled to believe J.S.R.'s testimony and we will not disturb the jury's determination. The evidence is sufficient to support the convictions.

II. Double Jeopardy

Next, Spurlock contends that his convictions for child molesting and count I of incest, which are based upon the single incident of...