Stowers v. StateStowers v. State
- Reporters:
- , ,
- Before:
- DeBruler
I.
The evidence which supports the verdict shows that appellant was driving a red, white and blue Buick 500 pace car at midnight on the 24th of August, 1975. He stopped alongside a girl standing at the roadside and asked her if she needed a ride. She replied, “No.” He drove past the same spot ten minutes later and again stopped the car alongside the girl. He then ordered her into the car, saying, “Get in or I will kill you” and while so threatening her, reached under the car seat. The girl, the alleged victim of the offenses charged, testified that she got into the car because she was scared. Upon entering the car she saw some stockings and a girdle on the floor. While he drove off, she asked him if he would take her home. Appellant drove to an alley where he parked. He ordered her to take off her clothes. She testified that she complied with this request because she was afraid that he would hurt her if she refused. She stated that appellant had sexual intercourse with her and that such act occurred against her will and without her consent. She attempted to get out of the car, but was held by appellant and thereby prevented from doing so. Appellant thereafter drove around with the girl in the car and picked up a friend. During this part of the episode she attempted to get out of the car, and appellant hit her in the face with his fist. Later she did manage to jump out of the car and run to a nearby house, where she called her mother and the police. Officer Findley responding to this call found the girl at that house, “crying and very hysterical,” her hair mussed, clothes re-arranged, with a slight swelling on the left side of her face.
At the curbside appellant threatened to kill the girl if she did not get in the car and supported the verbal threat with an act which was intended to convey to the victim the impression that a weapon was concealed beneath the seat by which such threat to kill would be carried out. While driving to the alley the only words spoken were uttered by the girl. She pleaded for him to take her home. While parked in the alley appellant prevented her attempted escape by holding her, and later while driving around, prevented her escape by hitting her with his fist. This was evidence of sufficient probative value to permit a reasonable trier of fact to conclude beyond a reasonable doubt that the girl was carried off by force; and that the act of sexual intercourse was had forcibly and against her will. Dixon v. State, (1976) 264 Ind. 651, 348 N.E.2d 401.
Appellant argues that the admission of the girl on the stand that she never actually saw a weapon during the entire episode renders the evidence of force insufficient. The element of force in rape and kidnapping need not consist of the use or display of a weapon. Hammer v. State, (1976) 265 Ind. 311, 354 N.E.2d 170; Carroll v. State, (1975) 263 Ind. 86, 324 N.E.2d 809.
II.
Appellant’s Instruction No. 2 was refused by the trial court. This was a special instruction tendered by appellant which stated:
“The rape victim must resist to a degree which would indicate the act was against her will.
However, the resistance necessary to be used by a woman allegedly raped to prevent the sexual act need not be the use of all the physical force of which she is capable, but it is sufficient if she, in good faith, uses reasonable resistance.”
In dealing with alleged errors resulting from the refusal to give a tendered instruction we have adopted an approach first outlined in Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836. There we said:
“In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law, [Citation omitted.] ; (2) whether there is evidence in the record to support the giving of the instruction, [Citation omitted.] ; (3) whether the substance of the tendered instruction is covered by other instructions which are given, [Citation omitted.].” 355 N.E.2d at 838.
Appellant contends that the instruction is a correct statement of the law relying upon this Court’s opinions in
Ritter
v.
State,
(1946) 224 Ind. 426, 67 N.E.2d 530, and
Carroll
v.
State, supra.
We do not agree. The requirement of proof of reasonable resistance is to be found in opinions of this Court and the Court of Appeals dealing with the sufficiency of evidence to support a jury verdict or court finding that the alleged intercourse occurred “forcibly against the will” of the alleged victim.
Shephard
v.
State,
(1946) 224 Ind. 356, 67 N.E.2d 534;
Carroll
v.
State, supra; Dixon
v.
State, supra.
The term “resistance” does not appear in the statute defining the offense of rape. Use of the term in opinions of this Court was never intended to imply that resistance is an element of rape, or that “forcibly against the will” is equivalent to “against resistance.” It is rather a term used by judges and lawyers to identify a category of evidence commonly used in making proof of rape, the strength or weakness of which, may provide the basis for a decision as to whether the evidence as a whole is legally sufficient to constitute a prima facie case in the trial court, or is sufficient to support a finding or verdict of guilty on appeal. As law, it is applied by judges of both trial and appellate courts in judging the sufficiency of evidence in a
III.
Appellant next argues that the trial court erred in admitting into evidence two State’s exhibits, a brassiere and panty girdle found in the car alleged to have been driven by appellant. Such items were relevant as they substantiated the victim’s story that she had been held captive and transported in the car on the night in question. As stated in Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811:
“The fact that a piece of evidence makes an inference slightly more probable suffices to show its relevance.” 263 Ind. at 641, 335 N.E.2d at 825.
The relevance of such evidence was not negligible and its prejudicial effect was not as great as contended by appellant. The relevance was substantial and the threat to the fairness of appellant’s trial from any supposed speculation by the jury about the manner in which such items got in the car was only minimal and did not render such items inadmissible.
IV.
The next issue presented by this appeal is whether the trial court committed error in overruling appellant’s motion to set aside jury verdict and to reinstate a plea agreement reached between appellant and the prosecution. Appellant contended that he entered a plea of guilty to the rape count in fulfillment of his obligations under a plea agreement; that the court determined such plea to be voluntarily made and supported by a factual basis; that it accepted his plea; that the trial court ordered a pre-sentence report; and that thereafter upon reading in the pre-sentence report that appellant had denied guilt to the probation officer, the trial judge on the date set for sentencing, set aside his plea of guilty on its own motion. Appellant contends that the trial court had no lawful authority to set aside his plea after it was accepted
absent a motion therefor by the defense pursuant to the statute governing such procedures.
The plea of guilty is an admission of guilt and a waiver of a cluster of constitutional rights. The trial court has a duty to consider and pass upon the validity of each plea, and in so doing must satisfy itself that there is a factual basis for the plea and that it is being made freely and understandingly.
Brimhall
v.
State,
(1972) 258 Ind. 153, 279 N.E.2d 557. While a court must be cautious here for the protection of the accused, once the plea has been entered and accepted by a court of competent jurisdiction upon a regular determination of factual basis and voluntariness, jeopardy attaches and absent waiver of jeopardy rights through a knowing and voluntary withdrawing of the plea by the accused, a subsequent trial on the charges would be barred by the Constitution.
Appellant contends that his plea of guilty to the rape count, pursuant to the plea agreement, was entered and accepted by
We turn then to consider whether the
nunc pro tunc
entry reflecting only that the plea of guilty was conditionally received by the court was properly and validly made. It would appear that Ind. R. Tr. P. 60, through
The transcriptions of the plea proceeding held on February 9, 1976, and the sentence proceeding held on February 25, 1976, were required by
“Alright, the court will order a pre-sentence Investigation and set it down for the 25th of February, at 11:45.”
These transcriptions form an adequate documentary basis for the nunc pro tunc entry. Additionally, appellant was notified of hearing on the State’s motion for such entry and was provided a reasonable opportunity to resist such motion, and did in fact make an argument in resistance to such motion. We, therefore, find that the second entry was validly made and it clearly establishes that the rejection of the plea representation by the trial court on its own motion was not made after an acceptance of a plea of guilty. Such rejection was therefore within the lawful authority of the judge. Likewise jeopardy had not attached prior to the trial on the charges thereby rendering such subsequent trial on the three counts unconstitutional under the Double Jeopardy Clauses.
V.
Appellant’s final contention is that the trial court erred in overruling his pre-trial motion to suppress. The trial public defender made a motion to suppress the in-court identification testimony of the alleged victim which would identify the accused as her assailant. The motion was based upon an impermissibly suggestive identification procedure carried out by the police. Defense counsel stood ready to present witnesses in support of the motion. The trial court refused to conduct a hearing and overruled the motion, and ordered the trial to commence. Later in the same day the victim was called by the State as its first witness and in response to the fifth question put to her by the prosecution, and without objection by defense counsel, she identified appellant as her assailant.
The proposition is well established that questions of evidence are waived if there is no objection to such evidence at the time it is offered at trial. Zupp v. State, (1972) 258 Ind. 625, 283 N.E.2d 540; Harrison v. State, (1972) 258 Ind. 359, 281 N.E.2d 98. And such rule applies to preclude consideration of such questions on appeal even where a motion to suppress has been filed before trial. Moss v. State, (1975) Ind. App., 335 N.E.2d 633; Cannon v. State, (1975) Ind. App., 335 N.E.2d 229. A majority of this Court holds that such rule applies here, and that the failure to object to the introduction of the witness’ testimony constituted a waiver of the question of the admissibility of such testimony. In resolving this issue in this manner, a majority of the Court also finds abundant evidence in the record that the prosecuting witness in no way relied upon any lineup confrontation in her identification of appellant. • The lineup was not mentioned during the entire testimony of the witness. From her testimony it was obvious that she had every opportunity to observe the appellant over a period of several minutes, both inside and outside his automobile, and during a period of time in which she was forced to disrobe completely and the appellant disrobed himself. Under these circumstances a majority of the Court holds that even had the appellant objected to the prosecuting witness’ testimony during the trial the objection would have been to no avail. The witness’ identification of the appellant was based entirely upon observation independent of any lineup. Therefore her testimony should have been received. Dewey v. State, (1976) 264 Ind. 403, 345 N.E.2d 842; Cody v. State, (1976) Ind. App., 345 N.E.2d 849.
The conviction of appellant is affirmed.
Prentice, J., concurs; Givan, C.J., Hunter and Pivarnik, JJ., concur in the majority.
Note. — Reported at 363 N.E.2d 978.