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Docket Number

No. 30,757.

Attorney(S)

Lewis Davis, of Indianapolis, for appellant. John J. Dillon, Attorney General, and David S. Wedding, Deputy Attorney General, for appellee.

Judges

LEWIS, J.

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Smart Summary

Summary of Opinion: Montgomery v. State of Indiana, No. 30,757 (Ind. Sept. 11, 1967; rehearing denied Nov. 14, 1967)

Factual and Procedural Background

This is an appeal from a conviction for rape tried in the Criminal Court of Marion County, Division One, before Judge Eugene M. Fife. The defendant, Norman Montgomery (appellant), was indicted under Burns' Indiana Statutes, § 10-4201, which defines rape and prescribes imprisonment of not less than two years nor more than twenty-one years. The jury convicted the appellant and he was sentenced to two to twenty-one years in the Indiana State Prison. The appellant filed a motion for a new trial, which was overruled; he appealed from the conviction.

On the merits, the prosecutrix testified she was fourteen years old at the time of the alleged crime. According to her testimony, she had been in a cocktail lounge with a girl friend for more than two hours, met the appellant there, and the appellant subsequently took the prosecutrix and her companion to a hotel adjoining the lounge and obtained a room. The companion became ill and went to sleep; the prosecutrix then testified that she had sexual intercourse with the appellant. The prosecutrix admitted on cross-examination that she had engaged in prostitution in Louisville, Kentucky, and in Indianapolis. Police officers testified that when they arrested the appellant about three days after the event, he admitted to having sexual intercourse with the prosecutrix and with her female companion.

The appellant's motion for new trial alleged (1) the jury verdict was not sustained by sufficient evidence and (2) the jury verdict was contrary to law. In his appeal the appellant additionally asserted that the State failed to prove (a) the age of the prosecutrix, (b) that the prosecutrix had a proper understanding of the facts to which she testified, and (c) that the appellant actually had carnal knowledge of the prosecutrix. The appellant argued, in substance, that because the prosecutrix was an immoral person (by reason of admitted prostitution) she was not a credible witness.

Legal Issues Presented

Was the jury's verdict supported by sufficient evidence such that the conviction for rape should be sustained?
Was the verdict contrary to law?
Did the State prove the elements the appellant challenged: (a) the prosecutrix's age, (b) that the prosecutrix had a proper understanding of the facts to which she testified, and (c) that the appellant actually had carnal knowledge of the prosecutrix?
Was the credibility of the prosecutrix — despite her admission of prior prostitution — so undermined that the conviction could not stand?

Arguments of the Parties

Appellant's Arguments

The appellant argued the trial court erred in overruling his motion for a new trial because the verdict was not sustained by sufficient evidence and was contrary to law.
The appellant contended the State failed to prove essential elements: the prosecutrix's age, that the prosecutrix had a proper understanding of the facts of sexual intercourse, and that the appellant actually had carnal knowledge of the prosecutrix.
The appellant urged that the prosecutrix's admitted prostitution rendered her an immoral person and therefore not a credible witness, undermining her testimony.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's (State's) legal arguments beyond the factual presentation and the use of witness testimony cited by the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649	Affirmance of a rape conviction may rest solely on the testimony of the prosecuting witness; appellate courts do not determine witness credibility.	The court relied on Wedmore to support the proposition that it could not reweigh credibility and that the jury was entitled to believe the prosecutrix's testimony, as the jury apparently did here.
Yessen v. State (1955), 234 Ind. 311, 126 N.E.2d 760	General principle that appellate courts do not determine credibility or decide when a witness is telling the truth.	Yessen was cited to reinforce the limitation on appellate review regarding witness credibility and to justify deferring to the jury's determination.
Ritter v. State (1946), 224 Ind. 426, 67 N.E.2d 530	The weight of the evidence, witness credibility, and guilt or innocence are questions for the trial jury.	The court cited Ritter to emphasize that the issues raised by appellant (credibility and weight) are for jury determination, not for appellate reweighing.
Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575	Reversal is appropriate where a victim of tender age lacks the vocabulary or knowledge necessary to testify about sexual intercourse, creating evidentiary problems.	The court distinguished the present case from Ritchie, noting that cross-examination showed the prosecutrix here had sufficient vocabulary and understanding, so Ritchie’s basis for reversal did not apply.

Court's Reasoning and Analysis

The court began by identifying the statutory standard for rape under Burns' Indiana Statutes, § 10-4201 (defining rape, including carnal knowledge of a female child under sixteen). It then reviewed the evidence presented at trial: the prosecutrix's testimony she was fourteen; the circumstances of meeting the appellant in a cocktail lounge, being taken with a companion to a hotel room, the companion becoming ill and falling asleep, and the prosecutrix's account of sexual intercourse with the appellant. The court also noted the prosecutrix admitted prior prostitution and that police officers testified the appellant admitted intercourse with the prosecutrix and her companion when arrested.

The court framed the appellant's challenges as attacking the sufficiency of proof on age, the prosecutrix's understanding of the testimony (competency/ability to describe sexual intercourse), and actual carnal knowledge. The court characterized these issues as going to the prosecutrix's credibility and the weight of the evidence.

Relying on established precedent (including Wedmore and Yessen), the court emphasized that assessment of witness credibility and the weight of evidence are functions of the jury, not the appellate court. The court observed that the jury's verdict demonstrated it believed the prosecutrix's testimony, which it was entitled to do.

The court then examined the competency/understanding issue and noted that cross-examination established the prosecutrix possessed sufficient vocabulary, experience, and understanding of sexual matters to testify adequately about intercourse. On that basis the court distinguished Ritchie (where reversal was required because a very young victim lacked necessary vocabulary/understanding) and concluded those reasons for reversal were inapplicable here.

On the ultimate question of whether there was evidence supporting conviction, the court found evidence from which the jury could find that: (1) the prosecutrix was the age asserted (fourteen), (2) she had a proper understanding of her testimony (competency to describe the sexual act), and (3) the appellant actually had carnal knowledge of her. Because these factual findings were supported by evidence and because credibility was for the jury, the court found no reversible error.

Holding and Implications

HOLDING: The judgment of the trial court was AFFIRMED.

Implications:

The direct effect is that the appellant's conviction for rape and his sentence of two to twenty-one years' imprisonment were affirmed, and the trial court's denial of a new trial was upheld.
The court applied existing precedent to reiterate the principle that assessment of witness credibility, the weight of evidence, and the determination of guilt are questions reserved to the trial jury; the opinion does not announce a new legal rule or broader precedent beyond application and distinction of prior cases (Wedmore, Yessen, Ritter, Ritchie).

Report: 229 N.E.2d 466 (as noted in the opinion).

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MONTGOMERY v. STATE OF INDIANA.

1. CRIMINAL LAW — Evidence — Witness — Jury. — The weight of the evidence, the credibility of the witness, and the ultimate guilt or innocence of the accused present a question for the determination of the trial jury. p. 100.

2. CRIMINAL LAW — Rape — Evidence — Witness. — There was evidence from which a jury could find the appellant guilty of the crime of rape, where prosecuting witness testified as to her age, and the fact that she had a proper understanding of her testimony relative to sexual intercourse. p. 100.

LEWIS, J.

This is an appeal from a conviction for rape. The charge was lodged by indictment and is under Burns' Indiana Statutes, § 10-4201, which reads, in part, as follows:

"Whoever has carnal knowledge of a woman forcibly against her will, or of a female child under the age of sixteen [16] years . . . is guilty of rape, and on conviction shall be imprisoned not less than two [2] years nor more than twenty-one [21] years. . . ."

The trial was by jury and appellant was sentenced to 2-21 years in the Indiana State Prison.

Appellant urges as error the overruling of his motion for a new trial. The motion for new trial contended:

1. The verdict of the jury was not sustained by sufficient evidence.

2. The verdict of the jury was contrary to law.

The prosecutrix testified that she was fourteen years of age at the time of the alleged crime. She met the appellant in a cocktail lounge, where she and a girl friend had been for more than two hours. The appellant took the prosecuting witness and her companion to a hotel, which adjoins the lounge, and obtained a room. The female companion of the prosecuting witness became ill and went to sleep. The prosecutrix then had sexual intercourse with the appellant.

The prosecuting witness admitted she had engaged in prostitution in Louisville, Kentucky, as well as in Indianapolis. Police officers testified when they arrested the appellant some three days after the night in question, that he admitted to the officer he had sexual intercourse with the prosecutrix and also her female companion.

Appellant urges that the State failed to prove:

(a) The age of the prosecuting witness;

(b) That prosecuting witness had a proper understanding of the facts to which she testified; and

The substance of appellant's contention appears to be that the prosecuting witness was an immoral person and was not, therefore, a credible witness.

All of the fact issues urged by the appellant go to the credibility of the prosecutrix. In Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649, a conviction for rape was affirmed solely on the testimony of the prosecuting witness, this Court saying:

"It is not within the power of this court to determine the credibility of a witness or to say when a witness is telling the truth. Yessen v. State (1955), 234 Ind. 311, 315, 126 N.E.2d 760. It is apparent from the verdict that the jury believed the prosecuting witness' testimony given at the trial — this they had a right to do. . . ."

The weight of the evidence, the credibility of the witness, and the ultimate guilt or innocence of the accused present a 1. question for the determination of the trial jury. Ritter v. State (1946), 224 Ind. 426, 67 N.E.2d 530.

The cross-examination of the witness established that she was sufficiently experienced in the delicate and sensitive matter of sex, and that she had no lack of either the vocabulary or understanding of these matters which one might expect from a victim of her tender years. The evidence here is differentiated from the facts found in a case where this Court has reversed convictions because of the evidentiary problems raised by the difficulty involved when a victim of tender age lacked the vocabulary or knowledge concerning the facts necessary for rape or sexual intercourse. Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575.

There was evidence from which the jury could find the appellant was guilty of the crime charged in the indictment, including the age of the prosecuting witness; the fact she had a proper 2. understanding of her testimony; and appellant actually had carnal knowledge of her.

No reversible error has been shown, and the judgment of the trial court is affirmed.

NOTE. — Reported in 229 N.E.2d 466.

MONTGOMERY v. STATE