Tillman v. State, No. 1279S354

Docket NºNo. 1279S354
Citation408 N.E.2d 1250, 274 Ind. 39
Case DateAugust 28, 1980
CourtSupreme Court of Indiana

Page 1250

408 N.E.2d 1250
274 Ind. 39
L. V. TILLMAN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1279S354.
Supreme Court of Indiana.
Aug. 28, 1980.

[274 Ind. 40]

Page 1251

William F. Wurster, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, L.V. Tillman, was convicted by a jury of rape, a class A felony, Ind. Code § 35-42-4-1(a) (Burns 1979 Repl.) and sentenced to thirty years' imprisonment. He now presents three issues for review:

1. Whether there is sufficient evidence to support the jury verdict;

2. Whether the trial court erred in permitting a witness for the state to testify when her name was not included in the state's list of witnesses; and

3. Whether the trial court erred in allowing certain hearsay testimony.

The evidence most favorable to the state reveals that the victim was approached by the defendant on east 16th Street in Indianapolis on the night of December 30, 1978, as she was walking to a liquor store. He asked her where a phone booth could be found and continued to walk with her until she reached her destination. Having found a phone booth, the defendant left, and the victim went inside the liquor store alone. After making her purchases, the victim walked back down 16th Street on her way home. Suddenly, defendant reappeared, grabbed her by the coat, and pulled her around the back of a nearby church where he raped her twice. The defendant then accompanied the victim to her apartment where he stayed a short while. He wanted to use a phone and since the victim did not have one, she took him to a friend's apartment where he called his brother. The victim eventually persuaded defendant to leave whereupon she phoned her sister who then summoned the police.

[274 Ind. 41] I.

It is well settled that in reviewing the sufficiency of the evidence, this Court will not weigh the evidence nor determine the credibility of witnesses but will only view the evidence most favorable to the state and the logical inferences to be drawn therefrom. If there is substantial evidence of probative value to establish every element of the crime, the verdict will not be disturbed. Norris v. State, (1979) Ind., 394 N.E.2d 144; Hill v. State, (1979) Ind., 394 N.E.2d 132.

The defendant first contends that the evidence is insufficient to prove that intercourse ever occurred. He specifically points to testimony which indicated that the doctors who examined the victim found no sperm in her vaginal vault. In Indiana, the uncorroborated testimony of a rape victim is enough to support a conviction. Dobrzykowski v. State, (1978) Ind., 382 N.E.2d 170; Harris v. State, (1978) 268 Ind. 12, 373 N.E.2d 149. Furthermore, we emphasized in Lynch v. State, (1974) 262 Ind. 360, 316 N.E.2d 372, that penetration, not ejaculation, is the essential element of the crime of rape. Here, the victim testified that the defendant had sex with her which she said meant that his penis penetrated her vagina. We find that there is sufficient evidence to support this element of the offense.

The defendant next asserts that the evidence is not sufficient to establish that the act of intercourse was against the victim's will. He notes the victim's lack of physical resistance and the fact that she suggested that they return to her apartment after they had had intercourse.

We have held that physical resistance is not required where it is prevented by threats and fear of injury. Ballard v. State, (1979) Ind., 385 N.E.2d 1126; Spaulding v. State, (1978) 268 Ind. 23, 373 N.E.2d 165. In the case at bar, the victim testified that she...

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18 practice notes
  • Brown v. State, No. 181S13
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1982
    ...in this state that the uncorroborated testimony of a rape victim is enough to support a conviction. Tillman v. State, (1980) Ind., 408 N.E.2d 1250; Dobrzykowski v. State, (1978) 269 Ind. 604, 382 N.E.2d 170. While it is true that more specific questioning of each victim would have been desi......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • April 2, 1985
    ...to this rule is where the witness is brought in on rebuttal. Smith v. State, (1982) Ind., 439 N.E.2d 634; Tillman v. State, (1980) 274 Ind. 39, 408 N.E.2d 1250. Here Sharon McDonald testified only in rebuttal to the alibi testimony and was not permitted to testify further. The State attempt......
  • McCullough v. Archbold Ladder Co., No. 11A01-9108-CV-236
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 1992
    ...victim's house just before the crime; State was allowed to introduce their testimony to rebut defendant's alibi); Tillman v. State (1980), 274 Ind. 39, 408 N.E.2d 1250 (alibi witnesses testified defendant was playing cards at time of crime; State was allowed to call rebuttal witness who hea......
  • Lambert v. State, No. 1285S520
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1987
    ...final contention of insufficiency relates to proof of penetration as a necessary element of the crime of rape. Tillman v. State (1980), 274 Ind. 39, 408 N.E.2d 1250. Defendant claims that there was no evidence that penetration In Chew v. State (1985), Ind., 486 N.E.2d 516, we held insuffici......
  • Request a trial to view additional results
18 cases
  • Brown v. State, No. 181S13
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1982
    ...in this state that the uncorroborated testimony of a rape victim is enough to support a conviction. Tillman v. State, (1980) Ind., 408 N.E.2d 1250; Dobrzykowski v. State, (1978) 269 Ind. 604, 382 N.E.2d 170. While it is true that more specific questioning of each victim would have been desi......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • April 2, 1985
    ...to this rule is where the witness is brought in on rebuttal. Smith v. State, (1982) Ind., 439 N.E.2d 634; Tillman v. State, (1980) 274 Ind. 39, 408 N.E.2d 1250. Here Sharon McDonald testified only in rebuttal to the alibi testimony and was not permitted to testify further. The State attempt......
  • McCullough v. Archbold Ladder Co., No. 11A01-9108-CV-236
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 1992
    ...victim's house just before the crime; State was allowed to introduce their testimony to rebut defendant's alibi); Tillman v. State (1980), 274 Ind. 39, 408 N.E.2d 1250 (alibi witnesses testified defendant was playing cards at time of crime; State was allowed to call rebuttal witness who hea......
  • Lambert v. State, No. 1285S520
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1987
    ...final contention of insufficiency relates to proof of penetration as a necessary element of the crime of rape. Tillman v. State (1980), 274 Ind. 39, 408 N.E.2d 1250. Defendant claims that there was no evidence that penetration In Chew v. State (1985), Ind., 486 N.E.2d 516, we held insuffici......
  • Request a trial to view additional results

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