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02/17/88 ANTHONY THOMAS v. STATE INDIANA

Filed: February 17, 1988.

ANTHONY THOMAS, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



Appeal from the Marion County Superior Court, Criminal Division, Room One, The Honorable John W. Tranberg, Cause No. CR 85-220A

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

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Anthony Thomas was found guilty by a jury in the Marion County Superior Court of attempted rape, a class B felony, and confinement, a class D felony. The trial court sentenced Thomas to a term of two (2) years for the confinement conviction and fifteen (15) years for the attempted rape conviction, the sentences to run concurrently. Two issues are presented for our consideration in this direct appeal:

1. sufficiency of the evidence; and

2. error in sentencing.

The facts show that during the early evening hours of November 18, 1985, E.F., and her two-year old daughter were traveling north on Meridian Street in Indianapolis, when her car overheated. She pulled in at a United Oil station at 24th and Meridian and put oil and water into her automobile. Thomas approached E.F. while she was servicing her car and asked her about her car trouble.

She explained the car had overheated and Thomas told her he had a liquid sealant that would seal the radiator at his home, a couple of blocks away. He stated if she would take him there he would help her. E.F. agreed and they proceeded in the direction Thomas instructed.

Thomas directed E.F. to a vacant lot adjacent to School 66 on 38th Street. He then told her to turn off the engine, exited the car, and walked around to the driver's side of the car and ordered E.F. out of the car. When she refused to comply, Thomas grabbed her and attempted to pull her out of the vehicle. E.F. clung to the steering wheel to prevent Thomas from forcing her out of the automobile and pleaded with him to leave her alone. She offered her purse to him but he replied, "Who said I wanted your money." Thomas struggled with E.F. for a short time then pushed her back into the vehicle to the passenger side and attempted to climb on top of her. She then began screaming that she was being raped and for someone to help her. Thomas told her it would do no good for her to scream because the people in that area would not help her. E.F.'s two-year old daughter was asleep in the back seat and awoke because of the altercation and moved to the front seat between Thomas and E.F. E.F. grabbed her, opened the passenger door, and exited the vehicle from the passenger side. She then ran screaming for help, shouting that a man was trying to rape her. There was an iron fence surrounding the parking lot at that area and a gate in the fence was padlocked. Approximately eight to ten people in the area heard E.F.'s screams and came to her aid. Police were notified of the incident, arrived within moments and arrested Thomas at the scene.

I

Thomas claims the evidence presented at trial was insufficient to support his conviction for attempted rape and confinement. He also claims the verdicts were contrary to law in that the State did not prove all of the elements of either crime beyond a reasonable doubt. He makes the same argument for both contentions. He does not point out any particular way in which the evidence was insufficient nor does he point out which element or elements of either crime was lacking in the evidence. Thomas only generally claims there was insufficient evidence to convict him and that not all the elements of the crimes were proven.

In reviewing a challenge to the sufficiency of the evidence we neither reweigh the evidence nor Judge credibility. We examine only the circumstantial and direct evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the Conclusion the defendant is guilty beyond a reasonable doubt, the verdict will not be set aside on appeal. Gatewood v. State (1982), Ind., 430 N.E.2d 781, 782-83; Harris v. State (1981), Ind., 425 N.E.2d 112, 116.

The crime of rape as described in Ind. Code Ann. § 35-42-4-1(a)(1) (Burns 1985) is the act of a person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when the other person is compelled by force or imminent threat of force. Ind. Code Ann. § 35-41-5-1(a) (Burns 1985) defines attempt, in pertinent part, as:

A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a ...


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