Aрpellant was convicted by a jury of one count of rape, a class B felony, and two counts of criminal confinement, also a class B felony. The court sentenced him to terms of twenty (20) years imprisonment
The facts аre: On September 16, 1982, appellant, his brother and Rocky Wilson went camping at Purdee Farm in Delaware County. On the evening of September 17, 1982, they borrowed a boat and went fishing. Upon returning to their campsite, they discovered that some of their рroperty was missing.
Appellant and Wilson set out to investigate another campsite in an attempt to recover the missing property. At the campsite they came upon two couples. Appellant and Wilson, who were armed with a shоtgun and a hatchet, accused them of stealing their property and forced one of the men to open the trunk оf his car.
Failing to find the missing property, appellant and Wilson ceased their accusations. They shared some beеr, vodka and marijuana with the campers. At some point appellant and Wilson left the group briefly to talk between themselves. When they returned they forced the four individuals to lie face down on the ground. They locked the two men in the trunk of their car and directed their attention to the two women.
Appellant pointed the shotgun at T.H. and forced her to take оff her clothes. He raped her a total of six times, after which he passed out. While he was unconscious, Wilson forcеd T.H. to perform oral sex. Subsequently, Wilson, with the aid of the two women, awakened appellant. Appellant and Wilson thеn freed the two men and left. The four victims went to a nearby farm to call the police, who arrested appellаnt and Wilson at their campsite.
The first issue raised by appellant is whether the trial court erred in allowing T.H. to testify that Wilson forced her to perform oral sex. Appellant argues that the testimony was irrelevant and highly prejudicial, as he was not conscious at the time of the act and was not charged with any crime relating to the act.
Appellant’s argument is without merit. The testimony is admissible under the theory of
res gestae.
Admission of evidence under a theory of
res gestae
is within the sound discretion of the trial court.
Spears v. State,
(1980)
Wilson’s act was clearly contemporaneous with the acts for which appellant was charged. Happenings near in time and place which complete the story of the crime, by proving its immediate context, are admissible under the theory of
res ges-tae. Brown v. State,
(1981) Ind.,
Appellant claims the trial court erred in refusing to allow defense counsel to cross-examine T.H. concerning her knowledge of criminal charges pending against her boyfriend (one of the victims), where the purpose of thе cross-examination was to show bias and to reveal her motives for falsely accusing appellant. Appellant contends that a reasonable inference could be drawn that if T.H. were aware of her boyfriend’s prior arrests, shе would attempt to conceal any “further crimes.”
The trial court has the discretion to determine the scope оf a cross-examination and only a clear abuse of that discre
Appellant claims the trial court erred in denying defense counsel’s motion to withdraw when counsel advised the court that he knew the State’s complaining witness. Appellant alleges that his attorney’s conflict of interest prevented him from effectively cross-examining T.H., the complaining witness. Appellant’s attorney stated that while he did not reаlize that he knew T.H. prior to the date of trial, he recognized her when interviewing her that day in the prosecutor’s office. Upon hearing argument by both sides, the court denied the motion.
In circumstances such as these, a tension exists between the efficient administration of justice on the one hand and both the client’s right to adequate assistance of counsel аnd the attorney’s duty of zealous representation on the other. Resolution of these competing interests is decided by the trial court's exercise of discretion, reviewable only for abuse.
Wombles v. State,
(1979)
Previously we have fоund that denial of a motion to replace counsel during or immediately before trial does not constitute abuse оf discretion.
Wombles, supra; German v. State,
(1978)
pellant had already been granted onе continuance, and determined that counsel’s belated recognition of the identity of the complaining witness would not dеter him from representing appellant in a professional and competent manner. We will not substitute our judgment for the trial court’s in its resolution of the competing interests. We find no abuse of discretion in the court’s denial of counsel’s motion to withdraw.
The trial court is in all things affirmed.