Washburn v. State
| Decision Date | 07 November 1986 |
| Docket Number | No. 185S31,185S31 |
| Citation | 499 N.E.2d 264 |
| Parties | Kenneth WASHBURN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Pearce & Howard, Michael A. Howard, Noblesville, for appellant.
Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Kenneth Washburn was convicted at the conclusion of a jury trial in the Hamilton Superior Court of rape, a class A felony, and criminal deviate conduct, a class B felony. He was sentenced to forty (40) years for rape and twenty (20) years for deviate conduct, to be served concurrently. The following issues are raised on direct appeal:
1. failure to give Appellant's tendered jury instruction and giving the State's tendered instructions;
2. denial of Appellant's Motion in Limine; and
3. refusal to admit a video tape of Appellant's interrogation.
M.M. was approached by Appellant while walking in her neighborhood. The two became acquainted as they went to visit friends of Appellant, where they all drank beer and wine, and smoked marijuana. While Appellant and M.M. made their second trip to the liquor store, Appellant forced M.M. to the ground and compelled her to have sexual intercourse and oral sex with him while he choked her and held a knife to her throat. After about two hours, Appellant allowed M.M. to dress, but he held her waist and guided her to his apartment. She convinced him to wait until morning for further sexual relations. The next morning, against M.M.'s protests, they had sexual intercourse. Appellant allowed M.M. to leave, and she went home, notified her parents and the police, and gave a statement. At trial, Appellant did not deny the sexual relations, but argued they were consensual.
At trial, M.M. testified regarding bruises which appeared on her body two days after the rape, and also that she and Appellant had made a trip to a liquor store and returned to Appellant's friend's apartment prior to the rape. M.M. had not mentioned these facts to the police at any previous meetings. Appellant sought to have the jury instructed as follows:
The grant or refusal of jury instructions is a duty which the trial court must carry out with discretion. If all of the instructions together state the law correctly and fully, they are not erroneous and will not be the basis of reversing the verdict. Correll v. State (1985), Ind., 486 N.E.2d 497, 499. The trial court may properly refuse to give an instruction that does not correctly state the law, is not supported by the evidence, or is covered by other instructions. Van Orden v. State (1984), Ind., 469 N.E.2d 1153, 1161, U.S. cert. denied (1985), 471 U.S. 1104, 105 S.Ct. 2335, 85 L.Ed.2d 851.
Here, Appellant has not shown that M.M. made any prior inconsistent statement, that she denied making a prior statement, or that she did not recall making a prior statement. Yet these are the circumstances contemplated in the tendered instruction. At most, Appellant has shown that at trial, M.M. testified to two relatively insignificant facts which she had not mentioned previously to the police. Furthermore, the jury was instructed as to their role of judging the credibility of witnesses, including how to consider a witness' interest, bias, or prejudice.
State's Tendered Final Instruction No. 2 was:
"Ladies and gentlemen of the jury, you may convict the defendant solely on the uncorroborated testimony of the prosecuting witness, provided her testimony convinces you of the defendant's guilt beyond a reasonable doubt."
State's Tendered Final Instruction No. 3 was:
"Ladies and gentlemen of the jury, I further instruct you that there is no requirement that a rape victim scream or physically resist when by such an act she may very well anger or frustrate the assailant and thereby endanger her physical well being."
Appellant contends the trial court erred in giving these instructions because they were redundant, and overemphasized particular phases of the case. The court's Final Instruction No. 18, which Appellant likens to Instruction No. 2, dealt generally with the credibility of the witnesses, and the jury's role in judging such. It does not touch on the concept of Instruction No. 2, that the uncorroborated testimony of the victim, by itself, is sufficient to sustain a conviction. Appellant maintains Instruction No. 3 is unduly repetitive of other instructions defining the elements of the crimes charged, as well as the terms "deadly force" and "threat." Instruction No. 3, however, advises the jury regarding the victim's reaction, that she need not scream or resist if to do so would further endanger her. This instruction conveys new information to the jury not covered by any other instruction. The mere fact that final instructions may, to some extent, be repetitious or cumulative of other instructions does not render them improper unless there is a showing of undue emphasis of a particular point or an argumentative presentation of applicable rules of law. Golden v. State (1985), Ind., 485 N.E.2d 51, 53.
Appellant filed a Motion in Limine regarding prosecution and subsequent acquittal of him for two prior rapes. The court granted the motion for the State's case-in-chief, indicating it would reserve judgment for the remainder of trial. Subsequently, the motion was continued, "in full force and effect through the remainder of trial," unless "something further" were to be presented to the court. Appellant did not take...
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