Wilburn v. State, 49S00-8610-CR-927

• Decision Date: 08 December 1987
• Docket Number: No. 49S00-8610-CR-927,49S00-8610-CR-927
• Citation: 515 N.E.2d 1109
• Parties: Ben WILBURN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1109

515 N.E.2d 1109

Ben WILBURN, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8610-CR-927.

Supreme Court of Indiana.

Dec. 8, 1987.

William F. Thoms, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., William E. Daily, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Confinement, a Class B felony, for which he received ten (10) years, Rape, a Class A felony, for which he received thirty (30) years, and Robbery, a Class B felony, for which he received ten (10) years. The sentences for confinement and robbery were to run consecutively and the sentence for rape was to run concurrently with the other two sentences.

The facts are: On November 22, 1985, at approximately 7:20 p.m., the victim noticed appellant following her at 14th and Pennsylvania Street in the city of Indianapolis. He attempted to converse with her but she crossed the street and tried to ignore him. For a short while appellant disappeared then at 16th and Central she noticed him again.

She testified she tried to walk faster to avoid him but he crossed the street to her side and followed her to Broadway where he ran up behind her, grabbed her arms and held a knife to her side, put his hand over her mouth and directed her to do exactly what he said. He dragged her to a ventilating system near a building and threw her to the ground. When she started screaming, he asked her "[d]o you want to die right here?" He then yanked her to her feet and took her to a recessed entryway where he tore her clothing from her and raped her. He told her to stay where she was until he was out of sight. He then took her purse and ran.

The victim ran to the 500 Liquor Store with the intent of calling the police; however, she found a police car there. She told the officer what happened and gave him a description of appellant. Shortly thereafter, police apprehended appellant who still was in possession of the victim's purse and keys. He also had a knife in his possession. The victim was taken to the place where appellant was apprehended and she identified him as the rapist.

A witness, Kevin J. Watkins, testified that while standing at the corner of 16th and Broadway he saw appellant walking about twelve feet behind the victim. He saw appellant catch up with her, grab her, put his left hand on her mouth and his right arm around her. He saw him take her across the street and testified he heard the woman say "[h]elp." The witness was afraid to approach closer because he did not know what the appellant "had." He went to the 500 Liquor Store to find a policeman. Other witnesses assisted the police officers in finding appellant.

Appellant testified that he was looking for a prostitute named "Peaches" when the victim approached him and asked if he wanted a date. He testified he gave her $15 and made arrangements to go to her place at 16th and College. He claimed he had been robbed in the building where she lived and did not want to go there but suggested they go to his apartment at 23rd and Pennsylvania. He then suggested going over to 17th Street to find a place. When she stated she did not want to go there, he claimed he offered her another $5 and she accepted.

He contends that during his conversation with the victim a police car pulled up on 17th Street, then left and that another police car which was parked in front of a basketball court turned its lights off and sat there while appellant and the victim had sex in the doorway of the Multi-Service Center. According to appellant, the victim made no effort to talk to people who walked by them. He claims the victim took her own clothing off and laid down on her coat to have sex. He contends that after they had finished the victim attempted to take his money from him and that he grabbed his pocket and she ran away and left her purse behind. He claimed he picked up the purse and when he saw Watkins he was afraid and ran away. He said he put the purse under his coat because he thought it would look...