Woodford v. State
| Decision Date | 11 February 1986 |
| Docket Number | No. 483S,483S |
| Citation | 488 N.E.2d 1121 |
| Parties | Derrick WOODFORD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). 151PS. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Novella L. Nedeff, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
Following a jury trial, Defendant-Appellant Derrick Woodford (Woodford) was convicted of attempted rape, a class B felony, Ind.Code Secs. 35-42-4-1, 35-41-5-1. He was sentenced to a term of twenty (20) years imprisonment.
This belated appeal raises the following five (5) issues:
1. Whether the trial court erred in instructing the jury concerning the culpability for attempted rape.
2. Whether Woodford is entitled to a new trial because of prosecutorial misstatement of law regarding the abandonment defense during closing argument.
3. Whether the trial court erred in not allowing a defense witness to testify, and in not allowing Woodford a continuance to find additional witnesses.
4. Whether the trial court erred in denying Woodford's motion in limine.
5. Whether the trial court erred in enforcing its order granting the State's motion in limine and thereby excluding evidence of the victim's prior conduct with persons other than Woodford.
We affirm.
The victim and Woodford lived in separate apartments located across the hall from each other. Also residing in the same apartment building was one Francis Williams, a female acquaintance of both the victim and Woodford. On the afternoon of May 16, 1979, the victim returned to her apartment building after work, and briefly visited the apartment of Francis Williams. Woodford was also present. Following a discussion in which Ms. Williams and the victim planned to go shopping after changing clothes, the victim went to her own apartment. A few minutes later, she answered a knock on the door, and allowed Woodford to enter. After talking with Woodford about her hometown, the victim borrowed $5.00 from Woodford. Then he approached the victim from behind, turned her around, and threw her on the couch. The victim testified that Woodford then "was kind of laying on top of me and trying to get inbetween my legs by trying to spread my legs apart and put his hand down there." The victim was trying to push off Woodford, asking him to please let her up. She was afraid that Woodford would hit her in the stomach. The victim was seven months pregnant at the time.
She was also fearful that he was trying to rape her. She testified that Woodford touched the outside of her clothing covering her genitals, but that he did not get inside her clothes. The victim testified that during this first encounter, Woodford "did not stop when I told him to," but she admitted that Woodford did stop on his own volition. The victim then asked Woodford to leave, but he closed the door, came to the victim, grabbed her, and threw her on the bed. She then laid on her side with her knees up, and Woodford laid on top of her with his hands between her legs, trying to spread them. He told her that she "would enjoy this." The victim was afraid, and struggled. Woodford restrained the victim's chin with his arm, and kissed her on her mouth and face. The struggle persisted until a knock on the door was heard. Woodford then jumped up and sat on the bed while the victim jumped off the bed, opened the door, and let in Ms. Williams
Woodford contends that the trial court committed errors of Constitutional magnitude in instructing the jury concerning the culpability, or mens rea, required for attempted rape. We disagree.
The offense of rape is defined at Ind.Code Sec. 35-42-4-1 which provides in pertinent part:
A person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when ...
(1) The other person is compelled by force or the imminent threat of force ...
commits rape[.] [Emphasis supplied.]
The prerequisite culpability is determined by Ind.Code Sec. 35-41-2-2 which provides in pertinent part:
(a) A person engages in conduct intentionally if, when he engages in the conduct, it is his conscious objective to do so.
(b) A person engages in conduct knowingly if, when he engages in the conduct, he is aware of a high probability that he is doing so.
Ind.Code Sec. 35-41-5-1 provides in pertinent part:
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. (Emphasis supplied.)
Woodford cites certain language from our decision in Zickefoose v. State (1979), 270 Ind. 618, 388 N.E.2d 507, and Smith v. State (1984), Ind., 459 N.E.2d 355 to argue that "knowingly" is not sufficient culpability for an attempt crime, and a conviction for attempted rape can be sustained only if the State established that the defendant acted "intentionally." The Zickefoose decision, discussing the conduct which constitutes an attempt, stated that one necessary element was that "the defendant must have been acting with a specific intent to commit the crime," 388 N.E.2d at 510. However, the case did not involve distinguishing between the terms "knowingly" and "intentionally," and the phrase "specific intent" was used only to generally denote the required culpability. The prerequisite mens rea for the offense of rape is expressly defined at IC Sec. 35-42-4-1 as either "knowingly" or "intentionally."
Appellant's reliance upon Smith v. State is also misplaced. In Santana v. State (1986), Ind., 486 N.E.2d 1010, this Court reviewed our decision in Smith, and expressly rejected the same argument now made by Woodford. Santana upheld an instruction which stated the necessary culpability for the offense of attempted murder to be either "knowingly or intentionally."
We note that our opinion in Smith and the dissenting opinion in Santana both expressed concern regarding the phraseology of culpability instructions in crimes of attempt. These concerns were avoided in the instant case by the following instruction:
The crime of Attempt is defined by statute as I have previously given you. To convict a defendant of Attempted Rape, the State must have proven each of the This clearly informed the jury that the prerequisite culpability applies to the crime attempted, not to the "substantial step" which constitutes the attempt. We find that the trial court's instruction was proper.
following elements: that the defendant, one, knowingly or intentionally; two, employed force or the imminent threat of force to compel [the victim] to have sexual intercourse with him; three, that the conduct of the defendant was a substantial step towards the commission of the crime of Rape.
Woodford contends that during closing argument the prosecutor misstated the law regarding the defense of abandonment, and that a new trial is warranted.
During his closing portion of final argument, the prosecutor responded to the abandonment defense urged by final argument of Woodford's counsel. In so doing, the prosecutor stated:
I want to speak first to this question of abandonment, or this so-called defense of abandonment, which is a defense under the Penal Code, but frankly that absolutely loses me. In order to have, in this particular case, in order to have the defense of abandonment, we would have to have a situation where the defendant, as the law of abandonment is applied, or that defense is applied, intended to commit the crime. He has got to intend to commit the crime, before he can abandon that particular crime, but abandonment has to occur before he takes a substantial step towards the completion of the crime. I wholeheartedly agree that if we had this defendant on trial for Rape, abandonment would be an absolute defense to the crime of Rape. Perfect defense.
* * *
* * *
We don't have this defendant on trial for Rape. We didn't try him for Rape. So where does abandonment come in? How can you have abandonment if you've got the intent and you've got the substantial step towards completion of the crime, you've got the Attempt at that point, and the crime of Attempt has already been committed. I agree wholeheartedly that [sic] abandoned the crime of Rape. No question about that. (Emphasis supplied.)
The defense of abandonment is expressly provided by Ind.Code Sec. 35-41-3-10, to apply to the crime of attempt, as follows:
With respect to a charge under IC 35-41-2-4, IC 35-41-5-1 [], or IC 35-41-5-2, it is a defense that the person who is engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission.
Under this statute, the abandonment defense can arise only when "the person is engaged in the prohibited conduct." Thus, to give effect to the defense of abandonment in crimes of attempt, the conduct constituting abandonment must occur after the commencement of the "substantial step" toward the commission of the underlying crime (here, rape).
This has the resulting effect of making it possible for a person to technically commit the elements of the crime of attempt as provided in IC 35-41-5-1, but nevertheless to still avail himself of the defense of abandonment under IC 35-41-3-10, if he carries his burden of proof regarding the statutory prerequisites:
(a) voluntarily abandons his effort to commit the underlying crime, and
(b) voluntarily prevents its commission.
To hold otherwise would be to ignore and defy the abandonment defense enacted by the legislature.
Immediately following the final arguments, the court instructed the jury regarding the defense of abandonment, as follows:
The defense of abandonment is defined by law as follows: With respect to a charge under 35-41-5-1, Attempt, it is a defense that the person who engaged in the...
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