Zollatz v. State
| Decision Date | 04 December 1980 |
| Docket Number | No. 979S260,979S260 |
| Citation | 412 N.E.2d 1200,274 Ind. 550 |
| Parties | Richard E. ZOLLATZ, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John F. Surbeck, Jr., Deputy Public Defender, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant, Richard E. Zollatz, was convicted by a jury in Allen Circuit Court in March, 1979, of rape, Ind.Code § 35-42-4-1(a), and criminal deviate conduct, Ind.Code § 35-42-4-2(a), both class A felonies. He was sentenced to thirty years in prison on each count, the terms to run concurrently.
In this direct appeal, Zollatz challenges the sufficiency of the evidence on the element of identification and on the element of the use of a weapon or the threat of deadly force.
On review of sufficiency claims, the Court will not weigh the evidence nor will it resolve questions of credibility, but it will examine the evidence and reasonable inferences therefrom which support the verdict. The jury's verdict will not be disturbed as long as there is evidence of probative value from which a reasonable trier of fact could conclude beyond a reasonable doubt that the defendant was guilty. Hicks v. State, (1980) Ind., 401 N.E.2d 702.
Viewed in this light, the evidence in this case shows that in the early morning of August 23, 1978, D.K., a twelve year old child, was awakened in her bedroom by Zollatz. He placed two pillows over her eyes, talked to her for a few minutes, and then, upon a threat to pull a knife on her, forced her to commit fellatio, and to submit to sexual intercourse, and other sexual acts.
Appellant claims first that since D.K. identified him by voice alone, because she was unable to see anything, the identification was insufficient as a matter of law. He argues that voice identification must be accompanied by "independent corroborating evidence" in order to support the element of identification, citing Barnes v. State, (1971) 255 Ind. 674, 266 N.E.2d 617, a case in which voice identification was accompanied by evidence of a footprint matching that of the defendant's shoe. Barnes, however, clearly treated the voice identification as independently sufficient, citing, inter alia, Allison v. State, (1960) 240 Ind. 556, 166 N.E.2d 171, a case in which a defendant was charged with the misdemeanor of making a nuisance telephone call. In Allison, voice recognition was the only possible way to identify the wrongdoer. We said there that the trial court properly permitted certain witnesses to testify about the content of telephone conversations over the objection that they did not sufficiently identify the defendant. After reviewing these witnesses' testimony we found that they stated that they recognized the appellant from his voice, with which they were familiar, and that it was for the jury to determine what weight should be given to such evidence.
In this case, D.K. testified that she had known appellant as a family friend for several years; that for a one-year period about three years before the incident appellant had rented a basement room in the house in which she lived with her family and that she saw him everyday and occasionally played with him; that after living out-of-state she and her family moved back to Fort Wayne and lived in a house on property also occupied by a trailer in which Zollatz lived along with D.K.'s grandmother and another person; that later she and her family moved into this trailer when Zollatz, the grandmother and the third person moved out; and that she had seen him and talked to him as recently as two months before the incident. From this testimony, the jury could infer that D.K. was familiar with appellant's voice, and from her testimony that she had heard the rapist talk and that the voice was that of Zollatz, the jury had before it sufficient evidence based on voice recognition alone from which it could have found beyond a reasonable doubt that Zollatz was the attacker.
Appellant also argues that D.K.'s initial statements to the police regarding her recognition of appellant's...
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Warthan v. State
...that he was carrying a weapon is sufficient to support the verdict of a jury that he, in fact, committed an armed felony. Zollatz v. State, (1980) Ind., 412 N.E.2d 1200; Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d I would, therefore, hold that the statements made by the appellant were......
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Lambert v. State, 1285S520
...its use so as to create a substantial risk of injury, was sufficient evidence to support a class A rape conviction in Zollatz v. State (1980), 274 Ind. 550, 412 N.E.2d 1200. The statutory provisions for elevating the offense to a class A felony are satisfied, in the alternative, with either......
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Easley v. State
...of her apartment. In-court identifications on the basis of voice alone have been held sufficient to sustain a conviction. Zollatz v. State, (1980) Ind., 412 N.E.2d 1200; Allison v. State, (1960) 240 Ind. 556, 166 N.E.2d 171. Here, the voice identification was buttressed by other circumstant......
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