Carl M. TOBIAS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
No. 72S05-9605-CR-395.
Supreme Court of Indiana.
May 24, 1996.
Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for Appellee.
ON PETITION TO TRANSFER
DICKSON, Justice.
Following a jury trial, defendant-appellant Carl M. Tobias was found guilty of rape, a class B felony, and sexual battery, a class D felony. In the direct appeal of his convictions, the defendant presented multiple issues, one of which the Court of Appeals found dispositive. In Tobias v. State, 659 N.E.2d 246 (Ind.Ct.App.1995), the Court of Appeals reversed and remanded for a new trial, finding trial court error in an instruction to the jury as to the definition of reasonable doubt. Faced with conflicting precedent in Winegeart v. State, 644 N.E.2d 180 (Ind.Ct.App.1994), and Jackson v. State, 657 N.E.2d 131 (Ind.Ct.App.1995), the Court of Appeals elected to follow Winegeart, a case in which we have granted transfer and in which we today issue a decision contrary to that of the Court of Appeals. We grant the State‘s Petition to Transfer.
In this appeal from his convictions, the defendant has presented argument upon the following issues: 1) the validity of the reasonable-doubt instruction, 2) the admission of polygraph evidence, 3) sufficiency of evidence, and 4) ineffective assistance of trial counsel.
1. The Reasonable-Doubt Instruction
The defendant contends that the trial court committed fundamental error in its jury instruction explaining the concept of reasonable doubt. Because the defendant did not object to the instruction at trial, this appellate claim is subject to procedural default,
2. Admission of Polygraph Information
The defendant contends that the trial court committed fundamental error by admitting into evidence Defense Exhibit B, a police report containing references to the defendant‘s refusal to take a polygraph examination and reflecting that the complaining witness was given a polygraph examination and found to be truthful. Acknowledging that the exhibit was offered into evidence by defense counsel, the defendant alleges that fundamental error occurred and that the error “is so blatant and prejudicial” that Tobias has been denied the protection of the Due Process Clause. Brief of Appellant at 29. Although failure to make a proper contemporaneous objection usually results in procedural default, such a failure will not preclude appellate review of a trial court action that constitutes fundamental error—a “substantial blatant violation of basic principles rendering the trial unfair to the defendant.” Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). The State responds that any error was not fundamental, because Exhibit B never reached the jury. In his reply brief, the defendant does not dispute the State‘s assertion that the jury was never exposed to the references to the polygraph examinations, which we therefore assume to be true.
Because Exhibit B was not passed to the jury and its references to polygraph examinations apparently were never discussed in the testimony, we decline to find that the defendant‘s fair trial rights were prejudiced. The alleged error is not fundamental, and thus the claim of error was waived by the actions of the defense at trial.
3. Sufficiency of Evidence
The defendant contends that the evidence was insufficient to prove the element of force necessary for his conduct to constitute the crimes of sexual battery and rape.
An appellate claim of insufficient evidence will prevail if, considering the probative evidence and reasonable inferences that support the judgment, and without weighing evidence or assessing witness credibility, we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Case v. State, 458 N.E.2d 223, 226 (Ind.1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
Count I of the grand jury indictment charged the offense of rape, essentially alleging that the defendant “intentionally [had] sexual intercourse with a member of the opposite sex when the other person [was] compelled by force....” Record at 7. Count II charged sexual battery, asserting that the defendant “with intent to arouse or satisfy [the defendant‘s] own sexual desires did touch another person when that person [was] compelled to ... submit to the touching by force....” Record at 8. The defendant acknowledges that the element of force may be inferred from the circumstances. See Jones v. State, 589 N.E.2d 241 (Ind.1992); Smith v. State, 500 N.E.2d 190 (Ind.1986).
The evidence favorable to the judgment is that two sixteen-year-olds, C.U. and her boyfriend, R.C., intended to spend the night camping together at Hardy Lake in Scott County. C.U. lived with her father and stepmother and had told them she would be spending the night at a girlfriend‘s house. Instead, C.U. and R.C. went to Hardy Lake, where they registered for a campsite despite a rule setting 18 years as the minimum age for campers. They obtained a secluded campsite, where they erected a small tent, drank at least eight cans of beer they had brought with them, and engaged in sexual intercourse. Later, upon complaints by other campers of noise coming from the couple‘s campsite, Department of Natural Resources employees Jamie Miller and Carl M. Tobias, the defendant who was age 58, were sent in a pickup truck to investigate. They pulled into the campsite occupied by the juveniles and shined their truck headlights on the tent. R.C. stepped outside of the tent first; then, upon the defendant‘s request, C.U. came out, dressed only in a long T-shirt. After asking for their identification and informing them that another camper had alleged that a rape had occurred at the campsite, the defendant
The defendant testified, denying that he touched C.U. and stating that he took her from the campsite to call her parents. He stated that because the office was locked, C.U. placed a call from the adjacent pay phone, handing the phone to the defendant and telling him that her stepmother was on the phone. The woman on the other end of the line told him that C.U. had permission to be camping there, whereupon defendant took C.U. back to the campsite. Telephone records indicated that no phone call was placed from Hardy Lake during the time he claimed C.U. made this call.
The defendant asserts that the State failed to prove beyond a reasonable doubt that he used force or the imminent threat of force in committing the alleged acts. Each of the charged offenses required the State to prove that C.U.‘s submission was compelled by force. See Record at 7-8. The pertinent language of the rape statute states:
A person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when:
(1) The other person is compelled by force or imminent threat of force;
(2) The other person is unaware that the sexual intercourse is occurring; or
(3) The other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given;
commits rape, a Class B felony.
A person who ... touches another person when that person is:
(1) Compelled to submit by force or the imminent threat of force; or (2) So mentally disabled or deficient that consent to the touching cannot be given;
commits sexual battery, a Class D felony.
Evidence of the defendant‘s guilt of both charged offenses was presented by C.U.‘s testimony that he touched her breasts, digitally penetrated her vagina, and performed sexual intercourse on her—all after demanding her compliance; physically forcing himself upon her; and ignoring her lack of consent, verbal resistance, and requests for him to stop. Here we have a sixteen-year-old girl clandestinely participating in an escapade of overnight camping, drinking, and sex with her boyfriend after deceiving her parents as to her whereabouts. She was suddenly caught in the midst of this deception when confronted by two adult men—one of whom was the defendant, age 58—representing and asserting the enforcement authority of the campground. He took her to secluded, dark places—including the remote, locked office—and subjected her to his sexual acts.
We conclude that the evidence favorable to the judgment was sufficient to enable a reasonable jury to find the element of compulsion by force to have been proven beyond a reasonable doubt.
4. Ineffective Assistance of Trial Counsel
The defendant contends that he was denied the effective assistance of trial counsel guaranteed by the federal and state constitutions.1 He supports this claim with argument that counsel was ineffective in three particulars: failing to object to the reasonable-doubt instruction; offering into evidence a police report that contained references to polygraph examinations; and both eliciting and failing to object to hearsay testimony repeating C.U.‘s account of what happened.
The defendant acknowledges that the determination of whether he was denied effective assistance of counsel is governed by the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong examines whether counsel‘s performance was deficient in light of prevailing professional norms. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. To satisfy the second prong, a defendant must show that this deficient performance prejudiced the defense to such an extent as to deprive the defendant of a fair trial—one with a reliable result. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697-98. To prevail on a claim of ineffective assistance of counsel, a defendant must establish both prongs. Id. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.
The defendant‘s first allegation of counsel‘s deficiency, that he received ineffective assistance because his trial lawyer failed to object to the reasonable-doubt instruction that was given at trial, is inadequate to establish ineffective assistance of counsel. The instruction did not violate the minimum standards required by the U.S. Constitution. In our companion decision, Winegeart v. State, 665 N.E.2d 893 (Ind.1996), we discuss a challenge to a similar reasonable-doubt instruction and conclude that no reasonable likelihood exists that the jury applied the instructions to convict the defendant upon less proof of guilt than that required by the Due Process Clause. The challenged instruction in the present case is even less problematic than the one permitted in Winegeart, because instead of the Winegeart instruction‘s phrase “do not feel satisfied to a moral certainty,” this instruction uses “do not feel convinced to a moral certainty.” The instruction here thus more closely resembles
As to the defendant‘s second and third allegations of error, we find the second prong of Strickland to be determinative. The defendant suffered no prejudice as to his second claim of error, the admission of the exhibit containing references to polygraph examinations, because, as noted earlier in this opinion, this information was never communicated to the jury. The final claim of ineffective assistance arises from the defense counsel‘s role in the admission of hearsay testimony. The defendant argues that prejudice resulted from various witnesses being permitted to repeat C.U.‘s out-of-court allegations describing the crimes. We need not decide whether such testimony was improper or, if so, whether counsel‘s conduct was deficient, because we find that the presence of such evidence was not reasonably likely to have affected the outcome of the defendant‘s trial. The State‘s case received strong support from the other trial testimony and exhibits—particularly the DNA evidence, which almost conclusively disproved the defendant‘s testimony and corroborated that of the prosecuting witness. The defendant was not so prejudiced as to be deprived of a trial the result of which was reliable. Absent a sufficient demonstration of prejudice, we need not examine the actual effectiveness of counsel. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. We reject the defendant‘s claim of ineffective assistance of trial counsel.
Conclusion
Transfer is granted. The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, and SELBY, JJ., concur.
DeBRULER, J., concurs in result for the reasons stated in his separate opinion in Winegeart v. State, 665 N.E.2d 893, 904 (Ind. 1996).