Spurlock v. State

Decision Date18 December 1996
Docket NumberNo. 70S00-9512-CR-1347,70S00-9512-CR-1347
Citation675 N.E.2d 312
PartiesJarman SPURLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Supreme Court

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

Pamela Carter, Attorney General of Indiana, Randi F. Elfenbaum, Deputy Attorney General, for Appellee.

BOEHM, Justice.

A jury convicted Jarman Spurlock of five counts of child molesting and one count each of battery, intimidation, and criminal recklessness. Three of Spurlock's convictions for child molesting were Class A felonies and two were Class C felonies. The Class A molestation counts were elevated from Class C counts because the jury found they were committed by means of sexual intercourse or by the use of deadly force, or both. The jury also found that Spurlock was an habitual offender. Spurlock was sentenced to a combined term of one hundred and forty-two years. He presents five issues for our review, which we consolidate and restate as:

I. Was the evidence sufficient to support Spurlock's three Class A felony convictions for child molesting?

II. Was the evidence sufficient to support Spurlock's conviction for criminal recklessness?

III. Was the evidence sufficient to support the jury's determination that Spurlock was an habitual offender?

We affirm four counts of child molesting and the convictions for battery, intimidation, and criminal recklessness. We also affirm Spurlock's enhanced sentence as an habitual offender. However, we vacate one count of child molesting.

The facts most favorable to the verdict reveal that Spurlock molested his twelve-year-old daughter on two occasions. On one of those occasions, he attempted to have intercourse as explained below. Spurlock threatened to kill her if she told anyone of these events. Spurlock also molested his eleven-year-old daughter on two occasions. About a month after the last of these events, the older daughter reported them to the police. On the following day, the daughter told Spurlock's wife of the report. Spurlock's wife then relayed this to Spurlock that same day and that evening Spurlock, armed with his wife's gun, confronted his daughters when they arrived home. Spurlock threatened the older daughter, stating he would kill her, and hit her several times on the head with his fist. She eventually escaped outside. Two police officers arrived shortly thereafter as a result of a neighbor's call reporting the disturbance. Officer Dean Fish entered the Spurlock home and found Spurlock lying on the bedroom floor pointing a gun at him. When confronted, Spurlock threw the gun on the bed and was taken into custody. The trial, convictions and this appeal ensued.

I. Sufficiency of the Evidence--Child Molesting

Spurlock argues that the evidence was insufficient to support his child molesting convictions as Class A felonies. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh'g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id.

Count I of the information 1 charged Spurlock with child molesting, a Class A felony, pursuant to IND.CODE § 35-42-4-3(a) (Supp.1994). 2 This count of child molesting requires an act of "sexual intercourse," which is defined by statute as "an act that includes Spurlock claims that there was no evidence of penetration to support his conviction. Proof of the slightest penetration is sufficient to sustain convictions for child molesting and incest. Dinger v. State, 540 N.E.2d 39, 40 (Ind.1989). However, in this case, the State presented no evidence of penetration. On direct examination, the victim stated that Spurlock "tried" to have sexual intercourse with her on a single occasion. Record at 378-79. The victim then testified as follows:

                any penetration of the female sex organ by the male sex organ."    IND.CODE § 35-41-1-26 (1993)
                

Q: When you say he tried to have intercourse with you, what do you mean?

A: Have sex with me.

Q: Okay. He tried to put hi--He was trying to put his penis inside you?

A: Yes.

Q: Did he do that, or do you know?

A: I don't know.

Record at 378. The victim repeatedly testified that Spurlock only "tried" to have intercourse with her. More importantly, when specifically questioned about penetration, the twelve-year-old victim did not know if penetration had occurred.

The State argues that penetration can be inferred from circumstantial evidence citing our decision in Pasco v. State, 563 N.E.2d 587 (Ind.1990). However, in Pasco, there was physical evidence of penetration including a vaginal smear from the deceased victim which showed sperm and the defendant's palm print on the victim's thigh which tied the defendant to the penetration. Id. at 590. The State also argues that penetration of "external genitalia" is sufficient as was held in Short v. State, 564 N.E.2d 553, 558 (Ind.Ct.App.1991). That is correct. However, Short involved a five-year-old victim, who was incapable of clearly describing the events. The evidence of penetration was, inter alia, a bruised hymen, demonstrating sufficient penetration. Here, we are confronted with a situation where the victim herself, who was of an age to understand and respond to the questions, did not state that penetration occurred and there was no medical or physical evidence of penetration.

Although a touching is sufficient to support child molesting as a Class C felony (as Spurlock was charged in Counts IV and V), evidence of a touching without more does not support a conviction for child molesting as a Class A felony, which requires "penetration of the female sex organ." See IND.CODE § 35-42-4-3(a) (Supp.1994) and IND.CODE § 35-41-1-26 (1993). 3 The victim testified that Spurlock's penis touched her vagina; however, she never said that it penetrated or went inside, and explicitly said that she did not know whether that occurred. Moreover, she testified that her vagina was used to go to the bathroom as well as to have intercourse, demonstrating only a generalized understanding of the term and supporting the view that any penetration, however slight, would have been understood by her as penetration of the vagina.

We emphasize that proof of the slightest penetration is enough to support a conviction. Dinger, 540 N.E.2d at 40. We believe a detailed anatomical description of penetration is unnecessary and undesirable for two reasons. First, many people are not able to articulate the precise anatomical features that were or were not penetrated. Second, to require such detailed descriptions would subject victims to unwarranted questioning and cross-examination regarding the details and extent of penetration. As noted, any penetration is enough. But unlike the facts presented in Short, the State did not present any external evidence of a bruised hymen or other proof of penetration of even external genitalia. Therefore, in the absence of testimony that penetration occurred, we must conclude that the jury had no evidence from which it could find Spurlock guilty beyond a reasonable doubt of the count of child molesting that was based upon an alleged act of intercourse.

Next, Spurlock argues that the State failed to present evidence that he used deadly force to sustain his convictions on Based upon the facts of this case, the context of Spurlock's threat to kill the victim if she told anyone is insufficient to show the type of threat warranting the enhancement from Class C to Class A. 4 Therefore, we remand with instructions to vacate Spurlock's conviction as to Count I, reduce the convictions for Count II and Count III to the Class C felony level and resentence accordingly. The child molesting convictions are affirmed in all other respects.

                Counts II and III for child molesting as Class A felonies.  Those counts were Class A felonies only because they alleged the molestation was "committed by using or threatening the use of deadly force, or while armed with a deadly weapon."    IND.CODE § 35-42-4-3(b) (Supp.1994).  The proof of that element, however, is lacking.  There is no evidence of use of a weapon.  The State argues that Spurlock's "threats to kill the victim if she told anyone" that he molested her constituted the use of deadly force to support the Class A felony convictions.  Appellee's Brief at 11.  We must disagree.  It is true that a threat to use deadly force to compel compliance may be enough to elevate an offense to a Class A felony.  No weapon is necessary.  See Bazile v. State, 540 N.E.2d 49, 50 (Ind.1989) (defendant grabbed the eleven-year-old victim, threw her on the bed and told her to be quiet or he would kill her);  Lambert v. State, 516 N.E.2d 16, 19 (Ind.1987), rev'd on other grounds, 534 N.E.2d 235 (Ind.1989) (victim testified that she was grabbed around the neck and mouth from behind and that defendant threatened that if she screamed, he would kill her);  Stout v. State, 612 N.E.2d 1076, 1080 (Ind.Ct.App.1993), trans. denied (victim testified defendant threatened to choke her and throw her body in a field if she continued to scream).  However, in this case, the verbal threat to kill was not made to coerce the victim to submit to his demands.  Rather, the context of the threat, as described by the victim and alleged in the information was that he would kill her if she told anyone.  In fact, when the victim was asked what Spurlock said to her during the act of molestation, she responded, "He just told me to be quiet."   Record at 382.  Later in her testimony, she stated that he threatened to hurt the family if she told anyone.  Record at 384.  These threats may have been sufficient to support a charge of intimidation;  however, they are insufficient to
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