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Shaw v. State
489 N.E.2d 952
Ind.
1986
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PIVARNIK, Justice.

Defendant-Appellant Lamar Shaw was convicted by a jury in Lake County Superi- or Court of Rape, a class A felony. The Honоrable James E. Letsinger subsequently sentenced him to be committed to the Department of Corrections for twenty-five (25) years. Appellant Shaw now appeals and raises the following three issues:

1. the trial court erred by excluding evidence ‍​‌​​‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌​‍pursusnt to a motion in limine;
2. the trial court erred by failing to order a mistrial sua sponte; and
8. sufficiency of the evidence.

The facts adduced at trial are that LM., the victim, visitеd Raymond Jackson's home on May 16, 1988. LM. was accompanied by Ramona Jones and encountered Appellant when she arrived at Jackson's home. After visiting for about an hour, she and Ramona decided to leave. Appellant decided to accompany them. While walking, Appellant showed LM. his .44 Magnum handgun. However, LM. was not frightened it would be used towards her as Appеllant was stating he might perpetrate a robbery with it. After awhile Ramona asked L.M. to return to Jackson's home and get him. Appеllant escorted L.M. back to Jackson's house. Jackson refused to come with them, but in the course of conversation handed Appellant another handgun. Appellant and LM. left ‍​‌​​‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌​‍Jackson's home and en route to where they left Ramona, Appellant began to tug LM. into a wooded area. She resisted but he began to beat her with one of the guns. Upon reaching an abandoned house, Appellant threatened LM. until she undressed. She resisted him thereafter to the point that he struck her with his gun and rendеred her unconscious. When she regained consciousness he was on top of her having sexual intercourse. She began to scream and struggle, so he beat her to unconsciousness again. The second time she regained consciousness, he wаs standing across the room with his back towards her. She managed to get her slacks on and escape. She ran, half naked, tо the nearest road, where a driver responded to her way- *954 ing. The driver took her to the nearest area where the рolice could be contacted. Once the police arrived, an ambulance was summoned and LM. was taken to the hospital for treatment.

I

Appellant argues the trial court erred by granting the State's motion in limine and excluding evidence that the eighteen (18) year old, unwed, victim had her two children with her the night of the crime. The trial court granted the motion pursuant to the rape shield law, Ind.Code § 35-837-4-4 (Burns Supp.1985). Appellant argues this evidence was not designed to reveal LM.'s sexual history, rather it would be used to establish all who were present at the ‍​‌​​‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌​‍time of the alleged rape. A motion inx limine is only a temporary order that requires a party to notify the court when he intends to offer evidence covered by the order so the court can at thаt time determine the admissibility of such evidence. A challenge to the court's ruling on a motion in limine presents nothing for this Court's review but must be based on the trial court's exclusion of evidence offered at trial. Davidson v. State (1982), Ind., 442 N.E.2d 1076. Appellant did not attempt to еnter into evidence the fact that LM. had her two children with her the evening of the rape and has therefore waived this issue. Further, we note that had Appellant attempted to introduce this evidence, it fell clearly within the purview of the rape shiеld statute and would have been properly excluded.

II

Appellant next alleges that the prosecutor's statement in closing argument, that there is so much violence in Gary because everyone is armed, was so prejudicial it constitutes reversible error. He contends that when counsel objected at trial to this statement, the court should have sua sponte deсlared a mistrial. However, Appellant's counsel merely made a general objection that was sustained by the court. Nеither a mistrial ‍​‌​​‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌​‍nor admonition was requested. Appellant does not advance any particular argument supporting his cоntention that the trial court should have ordered a mistrial sua sponte. Rath er Appellant relies on the alleged sevеrity of prejudice he imparts to the prosecutor's statement. Before a defendant is entitled to reversal he must affirmatively show there was error prejudicial to his substantial rights. Wagner v. State (1985), Ind., 474 N.E.2d 476. The prosecutor's statement, though irrelevant, was not so prejudicial as to merit reversal. In light of the overwhelming evidence of Appellant's guilt, the statement was harmless error.

THI

Aрpellant finally contends there was insufficient evidence to support the finding that Appellant forced LM. to have sexual intercourse. Appellant supports this contention by attacking the credibility of L.M.'s testimony. He merely points out conflicts in hеr testimony. This clearly does not provide a basis for reversal. Upon reviewing a sufficiency of evidence challengе, ‍​‌​​‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌​‍this Court neither weighs the evidence nor determines the credibility of witnesses, rather we look to evidence most favorablе to the State together with all reasonable inferences to be drawn therefrom. We then determine if there is substantial evidence from which the trier of fact might reasonably have inferred guilt beyond a reasonable doubt. Linder v. State (1985), Ind., 485 N.E.2d 73. Here, the victim testified she was gripped by the arm and forced into a wooded area where Appellant hit her with a gun rendering her unconscious. When she regained consciousness, Appellant was already on top of her having intercourse. When she attemрted to scream and began to struggle he knocked her unconscious onee again. When Appellant was through and LM. had rеgained consciousness, she scurried into her slacks and fled. A driver rescued the half naked victim from the side of the road. Oneе police were summoned, LM. was transported to the hospital. It is well settled that a conviction for rape can rеst on *955 the uncorroborated testimony of the victim. Johnson v. State (1982), Ind., 432 N.E.2d 1358. Here, there was more than sufficient evidence to support the jury's finding that force was used when Appellant had sexual intercourse with LM. Accordingly, Appellant has failed to present any reversible error.

The trial court is in all things affirmed.

GIVAN, C.J., and DEBRULER, SHEPARD and DICKSON, JJ., concur.

Case Details

Case Name: Shaw v. State
Court Name: Indiana Supreme Court
Date Published: Mar 12, 1986
Citation: 489 N.E.2d 952
Docket Number: 285S49
Court Abbreviation: Ind.
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