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08/27/87 JEFFREY DARNELL LEWIS v. STATE INDIANA

Filed: August 27, 1987.

JEFFREY DARNELL LEWIS, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE WAYNE CIRCUIT COURT, The Honorable Douglas VanMiddlesworth, Judge, Cause No. C-85-1457-CR.

Givan, J., Shepard, C.j., DeBruler, Pivarnik and Dickson, JJ., concur.

Author: Givan

GIVAN, J.

A jury found appellant guilty of Child Molesting, a Class A felony, Criminal Deviate Conduct, a Class A felony, and Criminal Confinement, a Class D felony. Appellant was sentenced for a period of thirty (30) years for the convictions of Child Molesting and Confinement.

The facts are: On March 14, 1985, the fifteen-year-old victim was baby-sitting an infant for a couple in Richmond, Indiana. After the parents left, the victim locked the apartment doors and did her homework.

The victim testified that around 10:00 p.m. she fell asleep and was awakened at 11:00 p.m. by appellant, who was on top of her and trying to take off her clothes. By the light coming from the television set, the victim could see appellant's face. The victim screamed and appellant told her to shut up and put his hand on her throat and over her nose and mouth. He told her to take off her clothes, which she did because he said if she did not, he would do it for her.

Appellant kissed and fondled the victim's body, performed cunnilingus and attempted to have intercourse with her. At that time, the victim kicked him in the head and he struck her in the jaw. He then wrapped a blanket around the victim's head and told her that if she kicked him again he would kill her. The victim did not try to escape because she feared that he would kill the baby. She cried throughout the attack, which lasted about one to two hours.

The baby began to cry and appellant told her to put clothes on and tend to the baby. The father, who was an acquaintance of appellant, returned to find him on the couch with the victim and the baby. He asked appellant what he was doing there and told him to leave. As appellant was leaving, he told the father that he wanted to date the victim.

The father's testimony corroborated that of the victim. He said that she cried as she described the assault. According to him, his apartment door could be opened by sliding a credit card through the lock. He took the victim to the Richmond Police Station where she gave a statement and had photographs taken. The victim was shown a photographic array and identified appellant as her attacker. Later she was taken to the hospital where she was treated for abrasions and broken blood vessels on her jaw and collarbone.

An expert witness testified he believed the stain found in the underpants of the victim was saliva. The nurse who treated the victim testified as to the type and extent of her injuries. Also, the statement made by the victim in which she gave a detailed account of the attack to police was submitted into evidence without objection.

Appellant maintains that the evidence was insufficient to sustain his convictions. In appellant's view, the victim's testimony was conflicting and contained unsure statements, thus her testimony was inherently unreliable.

Appellant recognizes the fact that this Court will not weigh the evidence nor Judge the credibility of the witnesses, Jenkins v. State (1978), 267 Ind. 543, 372 N.E.2d 166, but he contends that this case is an exception because of the inherent unreliability of the victim's testimony.

A conviction can be sustained on a victim's testimony alone. Neal v. State (1983), Ind., 451 N.E.2d 657. Here, the testimony of the victim, the father, the expert witness and the nurse produced sufficient evidence from which the jury could find appellant guilty beyond a reasonable doubt.

The statute under which appellant was charged states that the offender must be sixteen years of age or older to commit child molestation. Ind. Code ยง 35-42-4-3(c). Appellant argues that the evidence is ...


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