Palmer v. State

Page 887

679 N.E.2d 887

Thomas Loren PALMER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 18S00-9508-CR-998.

Supreme Court of Indiana.

May 12, 1997.

Kelly N. Bryan, Orlosky, Bryan and Bryan, Muncie, for Defendant-Appellant.

Pamela Carter, Attorney General, James D. Dimitri, Suzann Weber Lupton, Deputy Attorneys General, Indianapolis, for Plaintiff-Appellee.

SELBY, Justice.

A jury convicted Appellant Thomas Loren Palmer, after trial, of criminal deviate conduct and attempted rape, and found him to be a habitual offender. The trial court sentenced him to 50 years for criminal deviate conduct, 50 years for attempted rape, and 30 years as a habitual offender. The Court of Appeals remanded for the trial court to enhance either the attempted rape or criminal deviate conduct sentence with the 30 years for habitual offender status. The trial court corrected Appellant's sentence to 50 years for criminal deviate conduct and 80 years for attempted rape enhanced by the habitual offender conviction.

Appellant raises several issues which we consolidate into the following four issues for review. ¹ 1) Does the record contain sufficient evidence to show that Appellant committed criminal deviate conduct and attempted rape? 2) Does the record contain sufficient evidence to support Appellant's habitual offender enhancement? 3) Did the taking of Appellant's fingerprints after lawful arrest violate his right to protection against unlawful search and seizure? 4) Did the trial court use the appropriate version of the consecutive sentencing statute when correcting the error in Appellant's sentence? Because we answer questions one, two, and four in the affirmative and question three in the negative, we affirm Appellant's conviction and sentence.

FACTS

The evidence most favorable to the State shows that on March 5, 1993, Appellant went next door to Susan Dubois' apartment and asked to use the phone. He then returned later asking to use the phone once more. When he finished speaking on the phone, he talked with Dubois and then struck her in the face, knocking her into an aquarium. He then forced her to remove her clothes. She hit him, and he threatened to kill her or her three-month-old baby. Appellant forced Dubois to perform oral sex upon him, and throughout the evening he attempted to have vaginal intercourse with her. In the morning, she convinced him to let her leave for work and took her baby with her. Dubois went to the home of the couple for whom she provides child care, and the woman for whom Dubois works reported the crimes to the police.

DISCUSSION

I.

"When reviewing a claim of insufficient evidence, we do not reweigh the evidence or judge the credibility of the witnesses. We affirm the conviction if, looking to the evidence and reasonable inferences therefrom which support the verdict, there is substantial evidence of probative value to support the conclusion reached by the trier of fact." Jones v. State, 589 N.E.2d 241, 242 (Ind.1992) (citations omitted).

Appellant first claims that Dubois' testimony is insufficient to establish that he committed the crimes of criminal deviate conduct and attempted rape. In regard to criminal deviate conduct, Appellant argues that Dubois' testimony that he forced her to perform "oral sex" does not establish that her mouth made contact with his sex organ. Regarding attempted rape, Appellant argues that Dubois' testimony that "he tried to penetrate me but he kept losing his erection" and that she "felt him pushing on my vagina" does not establish that he attempted to penetrate her with his sex organ. We find the record contained sufficient evidence for the jury to find Appellant guilty of criminal deviate conduct and attempted rape.

To establish criminal deviate conduct the State must prove deviate sexual conduct occurred. IND.CODE § 35-42-4-2. Deviate sexual conduct is defined as "an act involving: (1) a sex organ of one person and the mouth or anus of another person ..." I.C. § 35-41-1-9.

Rape is defined as: "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 ..." I.C. § 35-42-4-1. If the threat is one of deadly force, then a class A felony has been committed. Id. To establish rape, the State must prove that sexual intercourse occurred. Id. Sexual intercourse is defined as "an act that includes any penetration of the female sex organ by the male sex organ." I.C. § 35-41-1-26. To establish attempted rape, the State must prove that a defendant acted "with the culpability required for the commission of" rape and that he engaged "in conduct that constitutes a substantial step toward commission of the crime." I.C. § 35-41-5-1(a).

Where testimony contains sufficient specific details, in light of the entire testimony, to support a jury's conclusion that rape or deviate sexual conduct occurred, this Court will uphold the jury's conclusion. Brown v. State, 442 N.E.2d 1109, 1113-14 (Ind.1982); Lindsey v. State, 257 Ind. 78, 272 N.E.2d 458 (1971). This Court has found that testimony that "then he started having intercourse with me" or "he also, uh, re-entered and finished his intercourse" is sufficient, in the context of describing the events of a rape, for the jury to determine that sexual intercourse occurred. Brown, 442 N.E.2d at 1113. A jury may conclude a defendant forced a woman to place her mouth on his sex organ based on testimony that "he made me put my mouth on him." Overton v. State, 161 Ind.App. 650, 317 N.E.2d 467, 471 (1974).

Dubois testified at trial that Appellant forced her to perform oral sex on him. She also testified that he threatened to kill her if she bit him and that later he went from sucking on her "breast to down and performing oral sex" on her. (R. at 79-80.) The jury could reasonably conclude from this testimony that Appellant forced Dubois to engage in an act involving her mouth and his sex organ. Dubois' testimony clearly shows that she was not unfamiliar with sexual terms or conduct. Thus, her use of the phrase "oral sex" was well within what the jury could have found to be a basis for criminal deviate conduct.

Further, Dubois testified that, "He tried to penetrate me, but he kept losing his erection." (R. at 81.) She knew he was trying to penetrate her because, as she stated, "I felt him pushing on my vagina." (R. at 82.) The jury could reasonably conclude from this testimony, taken in light of Dubois' entire story, that Appellant tried to penetrate her sex organ with his. Dubois used specific terms including "penetrate," "erection," and "vagina"; although perhaps not a picture of anatomical clarity, this testimony was certainly sufficient for the jury to find attempted rape.

Appellant further challenges the sufficiency of the evidence supporting the jury's finding that he is a habitual offender. The evidence on the habitual offender charge consisted of two prior unrelated rape convictions of Appellant. Appellant does not dispute that the State proved that a jury convicted Appellant of rape in 1983 in Floyd County. Appellant challenges only the State's proof that he committed a rape in 1971 in Bartholomew County. To prove Appellant guilty of the 1971 rape, the State called Officer Jerry Golden. Officer Golden testified to the match between fingerprints he took from Appellant, on August 31, 1993, the second day of trial, and fingerprints of a Thomas Palmer contained in the Indiana State Police Repository. Appellant claims that the State failed to produce any evidence that the fingerprints on file at the Indiana State Police Central Repository linked Appellant to the 1971 Bartholomew County rape conviction.

In order to prove that a defendant is a habitual offender, "[T]he State must prove that the defendant was convicted and sentenced for two prior unrelated felonies." Williams v. State, 525 N.E.2d 1238, 1241 (Ind.1988); I.C. § 35-50-2-8. Proof of a common name does not show that a defendant committed a prior crime. Mickens v. State, 439 N.E.2d 591, 593 (Ind.1982). Evidence that fingerprints taken from a defendant convicted of a prior crime match the present defendant's fingerprints is substantial evidence that the same person committed both crimes. Id; Martin v. State, 490 N.E.2d 309, 314 (Ind.1986).

Appellant does not dispute that one Thomas Palmer committed a rape in Bartholomew County in 1971, as shown by certified court documents. Nor does he dispute that Officer Golden took a set of Appellant's fingerprints which matched the fingerprints in the Indiana Central Repository. Appellant does claim that the fingerprints in the Repository do not link him to the 1971 rape. The documents from the Indiana Central Repository do, however, sufficiently identify a Thomas Palmer, whose fingerprints the Repository holds, as the defendant sentenced to rape in Bartholomew County on December 10, 1971. ² The match of the Repository fingerprints with those taken by Officer Golden was sufficient evidence from which the jury could conclude that Appellant was convicted of rape in Bartholomew County. Furthermore, the proof of this conviction and that in Floyd County constituted sufficient evidence from which the jury could conclude that Appellant was a habitual offender.

II.

Officer Golden took Appellant's fingerprints on August 31, 1993, the second day of trial. At trial, Appellant objected to the admission of the fingerprints. Appellant argues that taking his fingerprints constituted an unreasonable seizure under both the United States and Indiana Constitutions. He argues that Officer Golden took the fingerprints, without a warrant, for use as evidence at trial. We find no constitutional violation.

The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution protect against unreasonable search or seizure of persons. U.S. CONST. Amend. IV; IND. CONST. art. I, § 11. Fingerp...