Thomas v. State

• Citation: 471 N.E.2d 681
• Decision Date: 10 December 1984
• Docket Number: No. 1183S398.,1183S398.
• Parties: Anthony THOMAS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

471 N.E.2d 681

Anthony THOMAS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1183S398.

Supreme Court of Indiana.

December 10, 1984.

Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville (William S. Spangler, Jr., Merrillville, of counsel), for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Anthony Thomas, was convicted by a jury of rape, a Class B felony, Ind. Code § 35-42-4-1 (Burns 1984 Supp.) and of being a habitual offender, Ind. Code § 35-50-2-8 (Burns 1984 Supp.). He was sentenced to the Indiana Department of Correction for a period of forty years. In this direct appeal, he raises the following four issues:

1. Whether there was sufficient evidence of probative value to support the jury's verdict on the charge of rape;

2. Whether the trial court erred by refusing to permit him to cross-examine the prosecuting witness regarding her sexual conduct earlier during the day of the alleged offense;

3. Whether Indiana's habitual offender statute is unconstitutional; and

4. Whether the imposition of the forty-year sentence constitutes cruel and unusual punishment.

A brief summary of the facts from the record most favorable to the state shows that the victim was a fifteen-year-old girl who left her boyfriend's house about 9:00 p.m. on the evening of December 29, 1982. Although she left with three other friends, she walked alone the last two blocks to a bus stop. As she was waiting for the bus, a man approached her with a gun and ordered her to get into a car parked in an alley. This man was later identified as defendant's brother, and defendant was the man who was driving the car. The victim was raped by both men and when she began screaming and crying defendant threatened to cut her with a knife. Defendant then drove the car to another location and the victim was again raped by both men.

A police car drove up and one officer heard the victim scream for help before defendant drove the car away. The police chased the car through several alleys and one officer pursued defendant's brother on foot when he jumped out of the moving car. Eventually, defendant was forced to stop the car and was arrested by the other officer. The victim was found to be nude and was very scared and crying. She was immediately taken to a hospital for an examination. The doctor found scratches on the inside of her thighs and lab tests proved positive for the presence of semen. During the habitual offender phase of the proceedings, the state introduced evidence to show that defendant had been convicted of the prior felonies of burglary and armed robbery in 1977.

I.

Defendant first contends that there was not sufficient evidence of probative value on the element of penetration to sustain his conviction for the crime of rape. It is clear that the crime of rape is defined as knowing or intentional sexual intercourse with a member of the opposite sex when the other person is compelled by force or the threat of force, Ind. Code § 35-42-4-1 (Burns 1984 Supp.) and "sexual intercourse" is defined as "an act that includes any penetration of the female sex organ by the male sex organ." Ind. Code § 35-41-1-26 (Burns 1984 Supp.). We have consistently held that proof of the slightest degree of penetration is sufficient and the finder of fact may infer penetration from circumstantial evidence. Rowan v. State, (1982) Ind., 431 N.E.2d 805; Holder v. State, (1979) 272 Ind. 52, 396 N.E.2d 112.

Defendant argues that the only evidence of penetration here was the victim's testimony and that she only talked in general terms about being "raped" and did not specifically describe any penetration. He argues that since she was only fifteen years old she may have used the term "rape" to cover types of sexual contact which did not include any penetration. We find no merit to this contention since the record shows that the victim did use the term "intercourse" and stated at one point "that's when he entered me." Furthermore, the laboratory tests did show the presence of semen in the victim's vagina. This was sufficient evidence of probative value to support the jury's determination that defendant had committed the offense of rape and the verdict was not contrary to law.

II.

Defendant next contends that the trial court erred in refusing to permit his counsel to cross-examine the victim regarding her sexual conduct with her boyfriend earlier during the day of the instant offense. He claims that this testimony would have been relevant to explain the medical evidence showing the presence of semen in the victim's vagina and therefore should have been admitted to help refute the state's case.

It is well settled that the purpose of Indiana's rape shield statute is to shield victims of sex crimes from a general inquiry into their past sexual conduct and to keep these victims from feeling that they are on trial. Kelly v. State, (1983) Ind., 452 N.E.2d 907; Lewis v. State, (1983) Ind., 451 N.E.2d 50; Moore v. State, (1979) 271 Ind. 464, 393 N.E.2d 175. However, the statute does allow an inquiry into a victim's past sexual conduct in three instances, one of which is "a specific instance of sexual activity which shows that some person other than the defendant committed the act upon which the prosecution is founded." Ind. Code § 35-37-4-4(b)(2) (Burns 1984 Supp.).

In this case, there would have been some probative value to evidence which would have shown that the victim had had sexual intercourse with her boyfriend earlier in the day of the instant crime because that specific activity could have accounted for the presence of the semen in her vagina and the scratches on her thighs. But the statute clearly provides further that any evidence which might be admissible under this exception can only be admitted if the court finds that its prejudicial nature does not outweigh its probative value. This determination as with other issues on the relevancy of evidence in a criminal proceeding is within the trial court's discretion. Pearson v. State, (1982) Ind., 441 N.E.2d 468; Turpin v. State, (1980) 272 Ind. 629, 400 N.E.2d 1119.

Here, the evidence showed that the police found the victim with defendant and his brother in a car parked in an unlikely place in an alley. The investigating officer testified that he heard the victim scream for help before defendant drove the car away in an effort to escape the police. When the police finally were able to stop the car, they found the victim was nude, crying, and scared. She stated that she had been raped...