Opinion
No. 484 S 119.
May 5, 1989.
Appeal from the Superior Court, Lake County, James Kimbrough, J.
Marce Gonzalez, Jr., Appellate Div., Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
This is a belated appeal from a jury trial which resulted in the conviction of appellant of Burglary, a Class A felony, for which he received a sentence of thirty (30) years, and Attempted Rape, a Class B felony, for which he received a sentence of ten (10) years, the sentences to run concurrently.
Appellant and a codefendant, Vernell Knight, were charged in the instant crimes as codefendants. However, midway through the trial, Knight changed his plea from not guilty to guilty, as to the burglary charge. Knight then testified against appellant.
Knight testified that he, an uncaptured confederate named Trent, and appellant met on the evening of the crime and planned to enter the home of F.S. in Gary, Indiana. They then went to Knight's home so that he could change into darker clothing because he was afraid F.S., who had met him before, would recognize him. Because of the possibility of recognition, the three men agreed that Trent and appellant would immediately deal with the victim and that Knight would stay out of her sight.
When they arrived at the residence of F.S., Trent kicked in the glass doors and he and appellant immediately went over to the victim who was sleeping on a couch. Knight went directly upstairs to obtain objects of value. F.S. testified that she had dressed for bed and then, because of renovation in her bedroom, had gone to sleep on the couch. She was awakened by the breaking of the doors and immediately saw two men, one taller than the other, approaching her.
The two men started beating her and asking for her money. Then the shorter man lay down on top of her and attempted to rape her, while the taller man went upstairs. While the victim and the shorter man were still struggling on the couch, the taller man came back downstairs and attempted to help the shorter man rape the victim. The taller man grabbed the victim's legs and tried to force them apart, indicating to her his desire to rape her. In an attempt to bide for time, the victim asked that they take her upstairs to a bed, and as they were attempting to do this, one of the men shouted that police were coming and the three men fled the residence.
Officer James of the Gary Police Department testified that when he arrived on the scene on a report that a break-in was in progress, he went to the rear of the house where he encountered appellant breaking a window and crawling out of the house. As appellant exited the window, he fell to the ground and was subdued by Officer James. Knight also was captured; Trent, however, was not captured.
In a statement to police, appellant remained adamant that he was intoxicated that night and did not enter the house. He stated, rather, that it was Knight and Trent who entered the house. This statement of course is patently untrue in view of appellant's arrest as he exited a window at the rear of the house.
Appellant claims the evidence is insufficient to support the jury's verdict of attempted rape. He states that inasmuch as the victim could not identify him and that Knight had the ulterior motive of benefiting by the State dropping the charge of attempted rape against him, there thus is no credible evidence that he was the attempted rapist.
However, when one couples the testimony of Officer James to the effect that appellant was apprehended exiting the home, with that of the victim, who testified that of the two men who approached her on the couch, one stood approximately 6 foot one inch and the other was 5 foot nine inches tall and that it was the shorter person who attempted to rape her and the taller man who later returned and attempted to force her legs apart, we find sufficient circumstantial evidence to place appellant as the shorter man who attempted the rape.
The fact that Knight was a codefendant testifying against appellant was clearly obvious to the jury. We have repeatedly stated that although the testimony of an accomplice must be highly scrutinized by the trier of fact, the accomplice is nevertheless a competent witness. In taking all factors into consideration, the jury is entitled to weigh the accomplice's testimony in making its determination of guilt. Douglas v. State (1988), Ind., 520 N.E.2d 427. When one combines the testimony of Knight, Officer James, and the victim, there is ample evidence in this record to support the jury's verdict on the charge of attempted rape.
Appellant contends there is insufficient evidence to support the jury's burglary verdict. He points out that the manner in which the State charged the burglary was that appellant broke and entered the premises of the victim with the intent to commit the felony of theft and that there is no evidence in this record that appellant did in fact intend to commit the crime of theft. He largely bases this upon the fact that at the time appellant was arrested exiting the house, he did not have any of the victim's property in his possession. However, the evidence shows that immediately upon accosting the victim on the couch, two of the three intruders started beating on her and demanding her money. The third accomplice, who testified, stated that he went upstairs to hunt for valuables.
We further note that the perpetrators were interrupted by the arrival of the police. The jury was entitled to infer that thus being interrupted, the perpetrators fled before having the opportunity to accumulate the valuables for which they had entered the premises. See Sipes v. State (1987), Ind., 505 N.E.2d 796.
There is ample evidence in this record from which the jury could determine that appellant did in fact break and enter the premises of the victim with the intent to commit theft.
The trial court is affirmed.
SHEPARD, C.J., and DeBRULER, PIVARNIK and DICKSON, JJ., concur.