Thе Defendant (Appellant) was convicted after a jury trial of Rape, a class A felony, Ind.Code § 385-42-4-1 (Burns 1979), found to be an Habitual Offendеr, Ind.Code § 35-50-2-8 (Burns Supp.1982), and sentenced to seventy (70) years imprisonment.
This direct appeal raises two issues:
1) Did the trial court err in denying Defendant's motion for a mistrial predicаted upon revelation by the Prosecutrix of Defendant's prior crimes?
2) Whether the Court, during the habitual offender phase of the рroceedings, gave an erroneous instruction regarding the consideration of penalties applicable to the сharge.
The record disclosed that during the evening of December 7, 1981, the Prosecutrix *984 and witness Don Davis went to Davis' apartment which he shared with John Earl. There, the Prosecutrix and Davis were joined throughout the evening by several other people, including the Defеndant. All of the people were drinking beer. Eventually everyone departed except the Prosecu-trix, Davis, Earl, and the Defendant. While both Earl and the Defendant were in another room, Davis and the Prosecutrix, still in the living room of the apartment, engaged in sexual intercourse. When the Defendant returned to the living room and made sexual advances toward the Prosecu-trix, Davis asked him to leave. He refused, and an argument ensued. Subsequently, Davis left the apartment, and the Prosecu-trix attempted to follow him. The Defendant, however, grabbed her by the coat as she attempted to leave Davis' apartment. The Prosecutrix testified thаt the Defendant told her he had a gun and that he would kill her if she didn't comply with his demands. She further testified that Defendant took her to an abandoned house nearby, threatened her, and had sexual intercourse with her against her will. When the Defendant fell asleep, she returned to Davis' apartment and told him what had occurred. He subsequently called the police, who arrested the Defendant.
* * * # # B
ISSUE I
During the presentation of the Prosecu-trix's testimony the following exchange took place with regard to the Defendant's actions immediately prior to his raping of her:
"Q. What did he say? Tell the jury.
"A. He said that he had killed somebody before and * * *." (R. at 187).
Defendant moved for a mistrial contending that the answer was prejudicial and inadmissible inasmuch as there was no foundation for the admission of evidence of his prior eriminal activity.
Defendant's contention is without merit. The general rule is that evidence of criminal activity other than that which is charged is inadmissible on the question of guilt; however, such evidence may be admitted if it is relevant to show intent, motive, purpose, identificatiоn or common scheme or plan. Taylor v. State, (1982) Ind.,
In the case at bar, the Prosecutrix was relating the means by which Defendant had induced her to submit tо his demand. She testified that he threatened to kill her and stated._that he had killed before. It matters not whether the statement was true; its purpose can be regarded as reinforcing his threat that he would kill her if she did not acquiesce. The statement, therefore, was admissible upon the question of whether her submission to his demand that she have sexual intercourse with him was compelled and as pаrt of the res gestae of the offense. Taylor v. State, (1982) Ind.
Defendant also argues that the Prosecu-trix testified that he, the Defendant, prior to the eriminal encounter, told her that he had committed rape before, and he seeks to have the admission of that evidence reviewed as assigned error. A careful reading of the record, however, discloses that such testimony was never related before the jury but only during a hearing upon a defense motion to suppress such evidence. It is, therefore, unnecessary for us to address such argument.
ISSUE II
Over Defendant's timely objection, the court gave its Final Instruction No. 21 *985 respecting the habitual offender phase of the trial:
"These instructions do not cоntain any information concerning the penalties that could be imposed upon a conviction. The judge is solely responsible for assessing the penalty within a broad range of possibilities. The law has been so written that you may make your decisions without bеing influenced by the apparent severity or leniency of the sentence." (R. at 386).
Defendant argues that the judge has no sentenсing discretion with regard to the habitual offender issue and that enhancement of the sentence by thirty (80) years is mandatory. Defendant contends that for the court to have said that it was his responsibility to impose the penalty "within a broad range of possibilities" was mislеading, in that it suggested to the jury that a part of the sentence might be suspended, reduced or set aside. Further, Defendant contends that the jury should have been fully apprised as to the penalty that Defendant would receive if found to be an Habitual Offender.
In the context of this case, Defendant is correct in his contention that the court had no sentencing discretion, and we are of the opinion that to the extent that the instruction suggested otherwise, it was incorrect. Under some circumstances, the trial court does have discretion to reduce the enhanced time by as much as twenty-five (25) years. Ind.Code § 35-50-2-8(e). Because of the form of thе verdict, however, it would not have been possible for the judge to determine which two or more of the four prior felony cоnvictions charged the jury attributed to him. Miller v. State, (1981) Ind.,
The jury fulfills no sentencing function in an Habitual Offender proceeding. Owens v. State, (1981) Ind.,
We find no reversible error. The judgment of the trial court is affirmed.