APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION TWO, The Honorable Webster L. Brewer, Judge, Cause No. CR86-025B.
Buchanan, J., Sullivan, J. Concurs. Conover, J. Concurs.
Appellant-defendant Mitchell D. Bozarth (Bozarth) appeals his jury conviction of rape, a class B felony,[Footnote 1] challenging the constitutionality of the rape statute, the sufficiency of the evidence, claiming his sentence was manifestly unreasonable, and that the trial court erred in sustaining the State's objection to defense counsel's comments during closing argument.
The facts most favorable to the judgment reveal that on the evening of January 30, 1986, Bozarth went to the Goodwill Industries dormitory in Indianapolis and was introduced to A.N., the victim. A.N. was born deaf and legally blind. Although she was 21 years of age, she was mildly retarded with a mental age of approximately 10 years old and an I.Q. of between 50 to 70.
Bozarth was deaf, 24 years old and known to be a quick learner. The Goodwill Vocational Counselor assigned him to the commercial baking training program because he demonstrated the higher functioning capabilities that the program required. The training program exposed him to other students with varying degrees of disabilities and he often explained lessons to those students.
After visiting with another acquaintance at the dormitory, Bozarth went to A.N.'s room and was invited in by A.N. Bozarth communicated with A.N. by sign language and by writing notes. They viewed photographs together, exchanged addresses, and began kissing. Bozarth indicated he wanted sex and asked A.N. to go into her restroom with him. Bozarth took their clothes off. They engaged in sexual intercourse on the floor and while seated on the toilet seat. As Bozarth was leaving, he told a resident of the dormitory that he had sex with A.N. and that her virginity was now gone.
At trial, Mary Stewart, a social worker and employee of Midtown Mental Health Center, testified that A.N. was unable to give consent to sexual intercourse at the time of the incident. A.N.'s understanding of physiology and reproduction was rudimentary and her ability to interpret that knowledge and make choices was the same as a child of 6 or 7 years of age. Even though she had two sex education Discussions previous to the incident, A.N.'s evaluation indicated she did not understand the ramifications and nature of sexual conduct. Evidence of A.N.'s inability to consent to sexual intercourse was corroborated by Dr. Alan Schetzer.
The jury returned a verdict of guilty on the rape charge and Bozarth received the presumptive sentence of ten years. His sentence, however was later reduced to six years, upon Bozarth's motion for a modification of sentence.
Bozarth presents four issues for review:
1. Is I.C. 35-42-4-1(a)(3) unconstitutionally vague?
2. Was there sufficient evidence to support Bozarth's conviction of rape?
3. Did the trial court err in sustaining the State's objection to defense counsel's comments during closing argument regarding the ...