Charles J. CHEW, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)
No. 584S183
Supreme Court of Indiana
Dec. 19, 1985
The bizarre behavior surrounding this incident calls into question Respondent‘s professional competence and ethics. He jeopardized his client‘s interest and the integrity of the court in order to camouflage his errors. The extent of his willingness to do sо demonstrates a serious lack of understanding of the professional obligations of a lawyer. It is difficult, if not impossible, to discern the motivating factors behind conduct of this nature, but it is сertain that this Court cannot allow its reoccurrence.
In conclusion, it is this Court‘s assessment that a period of suspension must be imposed in light of the nature of the violations involved in this case. It is, therefore, ordered that the Respondent, Terry A. Geron, is hereby suspended from the practice of law for a period of not less than two (2) years, beginning January 18, 1986.
Costs of this proceeding are assessed against the Respondent.
Daniel L. Bella, Appellate Public Defender‘s Office, Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged with rape, a class A felony,
We affirm the conviction for criminal deviate conduct but reverse the conviction for rape.
We begin with our familiar standard of review:
“Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged mаy be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses.” (Citations omitted.)
Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
The evidence most favorable to the State demonstrated that Defendant forced the victim into his car at knifepoint and then forced her to commit various sexual аcts.
Defendant first contends that the evidence did not demonstrate that the victim acted under compulsion or threat of force. He cites certain evidence in the rеcord which, he contends, demonstrates that the victim consented to his conduct. We disagree.
Defendant by this contention merely invites us to reweigh the evidence. A convictiоn for rape or criminal deviate conduct may rest upon only the testimony of the victim. See, Bowen v. State (1985), Ind., 478 N.E.2d 44, 46-47; Shippen v. State (1985), Ind., 477 N.E.2d 903, 904 and authorities cited. Moreover, this Court has very recently re-emphasized that the question of consent is an issue to be determined by the trier-of-fact dependent upon the particular circumstances, and that a victim of sexual assault need not рhysically resist when resistance is prevented by threats and fear of injury. Woodson v. State (1985), Ind., 483 N.E.2d 62, 64. This record includes substantial evidence that the victim did not consent to Defendant‘s conduct.
Regarding the rape conviction, Defendant contends that the record does not include substantial evidence of probative value of the vaginal penetration necessary to effect a rape. We agree and reverse that
There was evidence that shortly after the criminal episode transpired, Defendant drove his automobile, in which the acts had occurred, to a service station. Thе victim exited from the vehicle with Defendant and told bystanders that he had “raped” her. Her testimony, in court, however leaves much doubt as to whether his violation of her was in fact, а rape under the statutory definition. In both the parlance of men of letters and of those of little grammatical sophistication, the word “rape” has meanings, some of whiсh denote various activities, some of which are carnal. (Webster‘s Seventh New Collegiate Dictionary, 1970).
The victim‘s testimony upon this matter was as follows:
“Q After that happened, what happened?
A He made me get in the back seat of the car and laid on my stomаch.
Q Did you do that?
A Uh huh.
Q Did he tell you to do it?
A (Indicating yes), uh huh.
Q Then what did he do?
A Then he made love to me from the back.
Q Did you have vaginal intercourse? Did you have vaginal sex?
A I don‘t know what you mean by that.
Q Can you describe the intercourse in the back seat?
A (Indicating no), no.
*
*
*
*
*
*
Q Did the defendant have any type of intercourse with you other than regular, deviate intercourse?
A I don‘t know what you mean.”
Although her vocаbulary was obviously limited, from her testimony elsewhere in the record upon the deviate conduct charge, it is clear that she had ample knowledge of the male and femаle sex organs, and she displayed no reluctance to relate the acts which Defendant compelled. Although we may question her knowledge of Oxford English, her testimony concerning that charge was quite graphic and left no doubt.
Although it is probable that by her testimony upon the rape charge, previously set out, the victim intended to relate that she hаd suffered vaginal penetration, for us to infer such from her testimony requires speculation not permitted under the requirement that proof be made “beyond a reasonable doubt.” Her testimony would simply leave serious doubt in the mind of any reasonable man as to the manner in which she was violated.
The record also includes expert medical testimоny that a vaginal smear taken from the victim after the assault included a chemical found in semen. However, the testimony did not disclose the presence of semen itself, and at most demonstrated that the victim had engaged in sexual intercourse within about thirty (30) hours of the examination. Thus the expert testimony, in light of the indefinite testimony by the victim, is also too tenuous tо permit an inference that the victim suffered vaginal penetration by the Defendant.
This Court has been very liberal in allowing trial judges and juries to infer that
Although our Court of Appeals upheld a conviction for rape in a case presenting an analogous problem, Judge Staton noted:
“Although the evidentiary presentation by the prosecution was technically correct, the аrgument could have been avoided on appeal if more specific information had been elicited from the victim.”
McCormick v. State (1979), 182 Ind.App. 541, 545, N. 1, 395 N.E.2d 856, 858-59, n. 1. It is the responsibility of counsel having the burden оf proof to assure that his witnesses’ testimony is clear.
The conviction for rape is reversed; the conviction for criminal deviate conduct is affirmed. The cause is remаnded with instructions to enter judgment accordingly.
GIVAN, C.J., and DeBRULER, J., concur.
PIVARNIK, J., concurs and dissents with opinion in which SHEPARD, J., concurs.
PIVARNIK, Justice, concurring and dissenting.
I concur with the majority in affirming the Defendant‘s conviction for Criminal Deviate Conduct.
However, I dissent to the finding that there was insufficient evidence to support the conviction for rape.
The evidence showed the victim did not understand the meaning of vagina and intercоurse. She did, however, state that Defendant “made love to her.” This is a common term understood to mean the act of intercourse. Such term is not applied to other acts of sexual deviate conduct such as anal intercourse. It takes no speculation nor supposition to know what the witness meant. The victim‘s statements that she had been rаped corroborate this as well as the presence of traces of semen in her vagina. I would affirm the trial court on both convictions.
SHEPARD, J., concurs.
Henry Lee TOTTEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)
No. 584S171
Supreme Court of Indiana
Dec. 19, 1985