Stowers v. State, No. 1176S373

Docket NºNo. 1176S373
Citation266 Ind. 403, 363 N.E.2d 978
Case DateJune 21, 1977
CourtSupreme Court of Indiana

Page 978

363 N.E.2d 978
266 Ind. 403
Randy Zane STOWERS, Appellant,
v.
STATE, Appellee.
No. 1176S373.
Supreme Court of Indiana.
June 21, 1977.

[266 Ind. 404]

Page 980

Richard D. Gilroy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., David T. O'Malia, Deputy Atty. Gen., Indianapolis, for appellee.

DE BRULER, Justice.

Appellant was charged with kidnapping, Ind.Code § 35--1--55--1 (Burns 1975), rape, Ind.Code § 35--13--4--3 (Burns 1975); and robbery, Ind.Code § 35--13--4--6 (Burns 1975). A jury found him guilty of kidnapping, rape and theft, Ind.Code § 35--17--5--3 (Burns 1975), and the court sentenced him to life imprisonment, five years, and six months respectively. On appeal five issues are presented: (1) whether the jury verdict was supported by sufficient evidence; (2) whether the court erroneously refused an instruction tendered by appellant; (3) whether the trial court erred in admitting into evidence two exhibits; (4) whether the trial court erred in overruling appellant's motion to set aside jury verdict and to reinstate the plea agreement made between appellant and [266 Ind. 405] the prosecutor; and (5) whether the trial court erred in denying appellant a hearing on his pre-trial motion to suppress the identification testimony of the alleged victim.

I.

The evidence which supports the verdict shows that appellant was driving a red, white and blue Buick 500 pace car at midnight on the 24th of August, 1975. He stopped alongside a girl standing at the roadside and asked her if she needed a ride. She replied, 'No.' He drove past the same spot ten minutes later and again stopped the car alongside the girl. He then ordered her into the car, saying 'Get in or I will kill you' and while so threatening her, reached under the car seat. The girl, the alleged victim of the offenses charged, testified that she got into the car because she was scared. Upon entering the car she saw some stockings and a girdle on the floor. While he drove off, she asked him if he would take her home. Appellant drove to an alley where he parked. He ordered her to take off her clothes. She testified that she complied with this request because she was afraid that he would hurt her if she refused. She stated that appellant had sexual intercourse with her and that such act occurred against her will and without her consent. She attempted to get out of the car, but was held by appellant and thereby prevented from doing so. Appellant thereafter drove around with the girl in the car and picked up a friend. During this part of the episode she attempted to get out of the car, and appellant hit her in the face with his fist. Later she did manage to jump out of the car and run to a nearby house, where she called her mother and the police. Officer Findley responding to this call found the girl at that house, 'crying and very hysterical,' her hair mussed, clothes re-arranged, with a slight swelling on the left side of her face.

Page 981

Appellant contends that the evidence of the element of force required for conviction of rape and kidnapping was insufficient. The information charged appellant 'did . . . forcibly[266 Ind. 406] carry away . . . and kidnap . . .' the girl, and the rape count charged that appellant did have carnal knowledge of the girl 'forcibly against her will.'

At the curbside appellant threatened to kill the girl if she did not get in the car and supported the verbal threat with an act which was intended to convey to the victim the impression that a weapon was concealed beneath the seat by which such threat to kill would be carried out. While driving to the alley the only words spoken were uttered by the girl. She pleaded for him to take her home. While parked in the alley appellant prevented her attempted escape by holding her, and later while driving around, prevented her escape by hitting her with his fist. This was evidence of sufficient probative value to permit a reasonable trier of fact to conclude beyond a reasonable doubt that the girl was carried off by force; and that the act of sexual intercourse was had forcibly and against her will. Dixon v. State (1976), Ind., 348 N.E.2d 401.

Appellant argues that the admission of the girl on the stand that she never actually saw a weapon during the entire episode renders the evidence of force insufficient. The element of force in rape and kidnapping need not consist of the use or display of a weapon. Hammer v. State (1976), Ind.,354 N.E.2d 170; Carroll v. State (1975), 263 Ind. 86, 324 N.E.2d 809.

II.

Appellant's Instruction No. 2 was refused by the trial court. This was a special instruction tendered by appellant which stated:

'The rape victim must resist to a degree which would indicate the act was against her will.

However, the resistance necessary to be used by a woman allegedly raped to prevent the sexual act need not be the use of all the physical force of which she is capable, but it is sufficient if she, in good faith, uses reasonable resistance.'

In dealing with alleged errors resulting from the refusal to give a tendered instruction we have adopted an approach [266 Ind. 407] first outlined in Davis v. State (1976), Ind., 355 N.E.2d 836. There we said:

'In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law (Citation omitted.); (2) whether there is evidence in the record to support the giving of the instruction (Citation omitted.); (3) whether the substance of the tendered instruction is covered by other instructions which are given (Citation omitted.).' 355 N.E.2d at 838.

Appellant contends that the instruction is a correct statement of the law relying upon this Court's opinions in Ritter v. State (1946), 224 Ind. 426, 67 N.E.2d 530, and Carroll v. State, supra. We do not agree. The requirement of proof of reasonable resistance is to be found in opinions of this Court and the Court of Appeals dealing with the sufficiency of evidence to support a jury verdict or court finding that the alleged intercourse occurred 'forcibly against the will' of the alleged victim. Shephard v. State (1946), 224 Ind. 356, 67 N.E.2d 534; Carroll v. State, supra; Dixon v. State, supra. The term 'resistance' does not appear in the statute defining the offense of rape. Use of the term in opinions of this Court was never intended to imply that resistance is an element of rape, or that 'forcibly against the will' is equivalent to 'against resistance.' It is rather a term used by judges and lawyers to identify a category of evidence commonly used in making proof of rape, the strength or weakness of which, may provide the basis for a decision as to whether the evidence as a whole is legally sufficient to constitute a prima facie case in the trial court, or is sufficient to support a finding or verdict of guilty on appeal. As law, it is applied by judges of both trial and appellate courts in judging the sufficiency of evidence in a

Page 982

rape case, it is properly utilized by counsel in arguing the evidence to a judge or jury. Turner v. State (1972), 258 Ind. 267, 280 N.E.2d 621. It is not, however, a matter of law which the accused or the prosecution have a legal right to have included in the charge [266 Ind. 408] to the jury. Nor does such legal right arise where...

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66 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...exclusion of the challenged evidence, the error in failing to hold a hearing must necessarily be harmless. Stowers v. State, (1977) Ind., 363 N.E.2d 978. Mr. Whitehouse did not identify appellant at trial, and any improper identification techniques to which he may have been exposed would no......
  • State v. Hanna, No. 17238
    • United States
    • Supreme Court of West Virginia
    • February 17, 1989
    ...295 (1960); People v. Dagampat, 167 Cal.App.2d 492, 334 P.2d 581 (1959); People v. Abbott, 690 P.2d 1263 (Colo.1984); Stowers v. State, 266 Ind. 403, 363 N.E.2d 978 (1977); Coleman v. State, 264 Ind. 64, 339 N.E.2d 51 (1975). By the same token, consent of the victim is not a defense to a ch......
  • Schiro v. State, No. 1181S329
    • United States
    • Indiana Supreme Court of Indiana
    • August 5, 1983
    ...Schoonover v. Reed, (1879) 65 Ind. 313; Pittsburgh etc. R. Co. v. Lamm, (1916) 61 Ind.App. 389, 112 N.E. 45." Stowers v. State, (1977) 266 Ind. 403, 410-11, 363 N.E.2d 978, 983. There has been precedent for nunc pro tunc entries in death penalty cases. In Judy v. State, supra, the record of......
  • State v. Kay, No. 20265
    • United States
    • Supreme Court of Utah
    • March 7, 1986
    ...than the actual imposition of the sentence, is the critical moment for determining jeopardy. See Annot, 75 A.L.R.2d 683; Stowers v. State, 266 Ind. 403, 363 N.E.2d 978, 982 (1977). The State, in responding to this claim, relies on cases that have assumed, without directly addressing the que......
  • Request a trial to view additional results
66 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...exclusion of the challenged evidence, the error in failing to hold a hearing must necessarily be harmless. Stowers v. State, (1977) Ind., 363 N.E.2d 978. Mr. Whitehouse did not identify appellant at trial, and any improper identification techniques to which he may have been exposed would no......
  • State v. Hanna, No. 17238
    • United States
    • Supreme Court of West Virginia
    • February 17, 1989
    ...295 (1960); People v. Dagampat, 167 Cal.App.2d 492, 334 P.2d 581 (1959); People v. Abbott, 690 P.2d 1263 (Colo.1984); Stowers v. State, 266 Ind. 403, 363 N.E.2d 978 (1977); Coleman v. State, 264 Ind. 64, 339 N.E.2d 51 (1975). By the same token, consent of the victim is not a defense to a ch......
  • Schiro v. State, No. 1181S329
    • United States
    • Indiana Supreme Court of Indiana
    • August 5, 1983
    ...Schoonover v. Reed, (1879) 65 Ind. 313; Pittsburgh etc. R. Co. v. Lamm, (1916) 61 Ind.App. 389, 112 N.E. 45." Stowers v. State, (1977) 266 Ind. 403, 410-11, 363 N.E.2d 978, 983. There has been precedent for nunc pro tunc entries in death penalty cases. In Judy v. State, supra, the record of......
  • State v. Kay, No. 20265
    • United States
    • Supreme Court of Utah
    • March 7, 1986
    ...than the actual imposition of the sentence, is the critical moment for determining jeopardy. See Annot, 75 A.L.R.2d 683; Stowers v. State, 266 Ind. 403, 363 N.E.2d 978, 982 (1977). The State, in responding to this claim, relies on cases that have assumed, without directly addressing the que......
  • Request a trial to view additional results

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