Stowers v. State

Decision Date21 June 1977
Docket NumberNo. 1176S373,1176S373
Citation266 Ind. 403,363 N.E.2d 978
PartiesRandy Zane STOWERS, Appellant, v. STATE, Appellee.
CourtIndiana Supreme Court

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 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.

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 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 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 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 to the jury. Nor does such legal right arise where the evidence of resistance is great or slight.

III.

Appellant next argues that the trial court erred in admitting into evidence two State's exhibits, a brassiere and panty girdle found in the car alleged to have been driven by appellant. Such items were relevant as they substantiated the victim's story that she had been held captive and transported in the car on the night in question. As stated in Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811:

'The fact that a piece of evidence makes an inference slightly more probable suffices to show its relevance.' 263 Ind. at 641, 335 N.E.2d at 825.

The relevance of such evidence was not negligible and its prejudicial effect was not as great as contended by appellant. The relevance was substantial and the threat to the fairness of appellant's trial from any supposed speculation by the jury about the manner in which such items got in the car was only minimal and did not render such items inadmissible.

IV.

The next issue presented by this appeal is whether the trial court committed error in overruling appellant's motion to set aside jury verdict and to reinstate a plea agreement reached between appellant and the prosecution. Appellant contended that he entered a plea of guilty to the rape count in fulfillment of his obligations under a plea agreement; that the court determined such plea to be voluntarily made and supported by a factual basis; that it accepted his plea; that the trial court ordered a presentence report; and that thereafter upon reading in the pre-sentence report that appellant had denied guilt to the probation officer, the trial judge on the date set for sentencing, set aside his plea of guilty on its own motion. Appellant contends that the trial court had no lawful authority to set aside his plea after it was accepted absent a motion therefor by the defense pursuant to the statute governing such procedures. Ind.Code § 35--4.1--1--6 (Burns 1975). Appellant also contends that such action subjected him to a trial on the charges in violation of protection of Article I, § 14 of the Indiana Constitution and the Fifth Amendment to the United States Constitution, against being placed twice in jeopardy for the same offense.

The plea of guilty is an admission of guilt and a waiver of a cluster of constitutional rights. The trial court has a duty to consider and pass upon the validity of each plea, and in so doing must satisfy itself that there is a factual basis for the plea and that it is being made freely and understandingly. Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557. While a court must be cautious here for the protection of the accused, once the plea has been entered and accepted by a court of competent jurisdiction upon a regular...

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