Tobias v. State, 72S05-9605-CR-395

• Decision Date: 24 May 1996
• Docket Number: No. 72S05-9605-CR-395,72S05-9605-CR-395
• Citation: 666 N.E.2d 68
• Court: Indiana Supreme Court
• Parties: Carl M. TOBIAS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

Page 68

666 N.E.2d 68

Carl M. TOBIAS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 72S05-9605-CR-395.

Supreme Court of Indiana.

May 24, 1996.

Robert M. Hammerle, Joseph M. Cleary, Hammerle, Foster, & Long-Sharp, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

DICKSON, Justice.

Following a jury trial, defendant-appellant Carl M. Tobias was found guilty of rape, a class B felony, and sexual battery, a class D felony. In the direct appeal of his convictions, the defendant presented multiple issues, one of which the Court of Appeals found dispositive. In Tobias v. State, 659 N.E.2d 246 (Ind.Ct.App.1995), the Court of Appeals reversed and remanded for a new trial, finding trial court error in an instruction to the jury as to the definition of reasonable doubt. Faced with conflicting precedent in Winegeart v. State, 644 N.E.2d 180 (Ind.Ct.App.1994), and Jackson v. State, 657 N.E.2d 131 (Ind.Ct.App.1995), the Court of Appeals elected to follow Winegeart, a case in which we have granted transfer and in which we today issue a decision contrary to that of the Court of Appeals. We grant the State's Petition to Transfer.

In this appeal from his convictions, the defendant has presented argument upon the following issues: 1) the validity of the reasonable-doubt instruction, 2) the admission of polygraph evidence, 3) sufficiency of evidence, and 4) ineffective assistance of trial counsel.

1. The Reasonable-Doubt Instruction

The defendant contends that the trial court committed fundamental error in its jury instruction explaining the concept of reasonable doubt. Because the defendant did not object to the instruction at trial, this appellate claim is subject to procedural default, Ind. Criminal Rule 8(B), unless the error is deemed fundamental. See Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). Claims of error in a trial court's reasonable-doubt instruction are subject to procedural default. See Winegeart v. State, 665 N.E.2d 893, 895 (Ind.1996). For an error to be fundamental, it must "be so prejudicial to the rights of a defendant as to make a fair trial impossible." See Barany v. State, 658 N.E.2d 60, 64 (Ind.1995). The challenged instruction in the present case is not characterized by any blatant defect that would render it fundamental error. We therefore deem the claim of error procedurally defaulted because of the failure to assert a proper, timely objection at trial.

2. Admission of Polygraph Information

The defendant contends that the trial court committed fundamental error by admitting into evidence Defense Exhibit B, a police report containing references to the defendant's refusal to take a polygraph examination and reflecting that the complaining witness was given a polygraph examination and found to be truthful. Acknowledging that the exhibit was offered into evidence by defense counsel, the defendant alleges that fundamental error occurred and that the error "is so blatant and prejudicial" that Tobias has been denied the protection of the Due Process Clause. Brief of Appellant at 29. Although failure to make a proper contemporaneous objection usually results in procedural default, such a failure will not preclude appellate review of a trial court action that constitutes fundamental error--a "substantial blatant violation of basic principles rendering the trial unfair to the defendant." Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). The State responds that any error was not fundamental, because Exhibit B never reached the jury. In his reply brief, the defendant does not dispute the State's assertion that the jury was never exposed to the references to the polygraph examinations, which we therefore assume to be true.

Because Exhibit B was not passed to the jury and its references to polygraph examinations apparently were never discussed in the testimony, we decline to find that the defendant's fair trial rights were prejudiced. The alleged error is not fundamental, and thus the claim of error was waived by the actions of the defense at trial.

3. Sufficiency of Evidence

The defendant contends that the evidence was insufficient to prove the element of force necessary for his conduct to constitute the crimes of sexual battery and rape.

An appellate claim of insufficient evidence will prevail if, considering the probative evidence and reasonable inferences that support the judgment, and without weighing evidence or assessing witness credibility, we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Case v. State, 458 N.E.2d 223, 226 (Ind.1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Count I of the grand jury indictment charged the offense of rape, essentially alleging that the defendant "intentionally [had] sexual intercourse with a member of the opposite sex when the other person [was] compelled by force...." Record at 7. Count II charged sexual battery, asserting that the defendant "with intent to arouse or satisfy [the defendant's] own sexual desires did touch another person when that person [was] compelled to ... submit to the touching by force...." Record at 8. The defendant acknowledges that the element of force may be inferred from the circumstances. See Jones v. State, 589 N.E.2d 241 (Ind.1992); Smith v. State, 500 N.E.2d 190 (Ind.1986).

The evidence favorable to the judgment is that two sixteen-year-olds, C.U. and her boyfriend, R.C., intended to spend the night camping together at Hardy Lake in Scott County. C.U. lived with her father and stepmother and had told them she would be spending the night at a girlfriend's house. Instead, C.U. and R.C. went to Hardy Lake, where they registered for a campsite despite a rule setting 18 years as the minimum age for campers. They obtained a secluded campsite, where they erected a small tent, drank at least eight cans of beer they had brought with them, and engaged in sexual intercourse. Later, upon complaints by other campers of noise coming from the couple's campsite, Department of Natural Resources employees Jamie Miller and Carl M. Tobias, the defendant who was age 58, were sent in a pickup truck to investigate. They pulled into the campsite occupied by the juveniles and shined their truck headlights on the tent. R.C. stepped outside of the tent first; then, upon the defendant's request, C.U. came out, dressed only in a long T-shirt. After asking for their identification and informing them that another camper had alleged that a rape had occurred at the campsite, the defendant took C.U. into the woods adjacent to the campsite, away from the others, purportedly to talk with her away from R.C. There C.U. told him that she had not been raped. Stating that he needed to check to see if she had been raped, the defendant touched C.U.'s breasts and inserted his finger into her vagina. Scared and confused, she asked him to stop. The defendant then stated that he was taking C.U. to the office to call her parents to make sure she had permission to be staying at the facility all night, and they returned to the campsite. C.U. and R.C. went into the tent, where C.U. put on shorts and shoes. C.U. started to cry and told R.C. that the defendant had just fondled her when they were in the wooded area. She asked her boyfriend to accompany her to the office, but the defendant said that this was not necessary and that R.C. should stay and clean up the campsite. Miller, the defendant's co-worker, remained at the campsite with R.C. The defendant drove C.U. to the park office, where he unlocked the office door, grabbed her arm and took her into the dark building. The defendant locked the door behind them, led her to a picnic table, and began kissing her and touching her breasts. C.U. asked the defendant why he had to do this and asked him to stop touching her. He said no. He then told her to remove her shorts, which she did. The defendant then grabbed C.U.'s arm and pushed her against the top of the picnic table, removed his own pants, pulled her legs apart with his hands, and "pushed inside" of C.U. with his penis. C.U. told him she didn't want "to do it" and asked the defendant to stop. He again said no, and he did not stop. When the defendant was finished, he wiped himself off with a paper towel and instructed C.U., who was crying, to pull up her shorts. The defendant then drove her back to the campsite. After the defendant and Miller left, C.U. ran to the tent and, crying hysterically, told R.C. what had happened. The two juveniles immediately packed up, left the campsite, and drove to the home of a friend of C.U.'s. C.U. told her friend that she had been raped, and the friend's mother called the police. C.U. was taken to a hospital, where samples were obtained for the sexual assault evidence collection kit. The examining physician detected three "fingertip like bruises" on C.U.'s right thigh and an abrasion on her lower right leg. The police, in the ensuing investigation, collected paper towels from the Hardy Lake camp office floor, counter, and trash container, as well as C.U.'s underwear and shorts. The defendant's DNA genetically matched DNA taken from seminal material found on the paper towels and on C.U.'s underwear and shorts and from spermatozoa found in C.U.'s vaginal wash and on cervical swabs taken at the hospital.

The defendant testified, denying that he touched C.U. and stating that he took her from the campsite to call her parents. He stated that because the office was locked, C.U. placed a call from the adjacent pay phone, handing the phone to the defendant and telling him that her stepmother was on the phone. The woman on the other end of the line told him that C.U. had permission to be camping there, whereupon defendant took C.U. back to the campsite. Telephone records indicated...