ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY BOWES KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
J. T. WHITEHEAD
Deputy Attorney General
COURT OF APPEALS OF INDIANA
WAYNE CURRY, )
vs. ) No. 49A02-9910-CR-732
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9810-CF-169246
December 28, 2000
OPINION - FOR PUBLICATION
Facts & Procedural History
Wayne Curry appeals his convictions after trial by jury of criminal deviate conduct,
attempted rape,See footnote and burglary,See footnote each as Class A felonies, and battery,See footnote as a
Class C felony. He raises three issues for our review we restate
1. Whether Currys convictions violate the Indiana constitutional prohibition against double jeopardy;
2. Whether the trial court erred in its instruction on reasonable doubt; and
3. Whether the evidence presented at trial was sufficient to support the jurys verdict.
We affirm in part and reverse and remand in part.
While asleep in her Indianapolis apartment in the early morning of August 8,
1999, Michelle Pounders was awakened by a large white male with brown hair
and a tattoo on his forearm, who climbed on top of her and
began to choke her. Rendered briefly unconscious by her attacker, Pounders regained
consciousness only to be struck and dragged to the floor. Once on
the floor, the attacker pinned Pounders face down. He then proceeded to
rape her anally and attempted to rape her vaginally. Before fleeing, the
attacker put a pillow over Pounders face and told her he would kill
her if she tried to look up.
Pounders suffered numerous injuries. She was found bleeding from her ears and
nose. Her body was badly bruised, particularly around her neck where she
had been strangled. Her knees and elbows were bruised and swollen.
She suffered petechia, a hemorrhaging of blood cells under the skin of her
face. She also had an eight millimeter external hematoma near her vagina
Wayne Curry first fell under suspicion as the attacker after he was found
by a police deputy one month after the rape walking around the apartment
complex grounds at 3:30 a.m. When confronted by the deputy, Curry explained
he was walking around the apartment complex to warn the public of the
danger in the complex due to the rapist. A computer fingerprint check
revealed that Currys prints matched those found on the victims sliding glass door.
He was not immediately brought in for questioning. Sometime later, in
September or October 1998, the investigating officer again encountered Currythis time in a
group of onlookers who had gathered after another rape in the complex.
Upon seeing and recognizing the officer, Curry stated, Darrell, I didnt do this
one, a black man did. (R. at 244.) Curry was finally
brought in for questioning on October 27, 1998.
Curry was read his rights, and he agreed to be interviewed and to
give a statement. During this interview, Curry made several incriminating admissions.
He explained that his fingerprints were on Pounders glass door because he had
been invited inside. Additionally, when advised the police could possibly link Curry
to the crime with DNA evidence, Curry explained he had consensual sex with
Pounders. On March 29, 1999, Curry was tried by jury and convicted
of all four counts.
Discussion & Decision
Curry was subjected to double jeopardy when he was charged with and convicted
of criminal deviate conduct, attempted rape, and burglary as Class A felonies, as
there was a reasonable possibility the jury based its guilty verdicts for the
three counts on the same act by Curry.
Charging Curry with elevated counts of attempted rape, criminal deviate conduct, and burglary
required the State to prove an additional element for each. For attempted
rape and criminal deviate conduct as Class A felonies, the State was required
to prove the attempt resulted in serious bodily injury.
See footnote (R. at 24.)
On the burglary count as a Class A felony, the State was
required to prove either bodily injury or serious bodily injurySee footnote (
Our supreme court recently explained the double jeopardy protection provided under the Indiana
Constitution. In Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999), the
court explained two or more offenses are the same offense in violation of
the Indiana Constitutions double jeopardy protections where, with respect to either the statutory
elements of the challenged crimes or the actual evidence used to convict, the
essential elements of one challenged offense also establish the essential elements of another
challenged offense. Id. Where, as here, a criminal statute provides for
the elevation of a charge to a more serious crime based upon an
additional element, the Richardson double jeopardy analysis applies. See Chapman v. State,
719 N.E.2d 1232, 1234 (Ind. 1999), rehg denied (reducing an elevated sentence when
the same force used to convict of murder was used to elevate the
Under the actual evidence test, the test applicable here, we examine the actual
evidence presented at trial to determine whether each challenged offense was established by
separate and distinct facts. Richardson, 717 N.E.2d at 53. To prove
a double jeopardy violation under the actual evidence test, a defendant must demonstrate
a reasonable possibility that the evidentiary facts used by the fact-finder to establish
the essential elements of one offense may also have been used to establish
the essential elements of a second challenged offense. Id. The reasonable
possibility standard permits convictions of multiple offenses committed as part of a protracted
criminal episode provided the case is prosecuted in a manner that insures the
same evidence is not used to support multiple verdicts. Id. at 53
Currys case was not so prosecuted. The States charging informations for the
attempted rape and sexual deviate conduct counts both refer to Currys actions while
using deadly force (R. at 23) and while Pounders was compelled to submit
by force or the imminent threat of force. (Id.) The burglary
information alleges Curry broke and entered Pounders dwelling with the intent to engage
in sexual intercourse with her while she was compelled to submit by force
or the imminent threat of force. (Id. at 24.) Only the
information for the battery count identifies the act that resulted in bodily injury
to Pounders: strangl[ing] her around the neck, which resulted in serious bodily
injury . . . , that is: unconsciousness. (Id.)
Pounders sustained multiple injuries during the beating she suffered after she regained consciousness,
but the beating that apparently supported the enhancement of the charges of criminal
deviate conduct, attempted rape, and burglary consisted of a single episode of brutality
and cannot be classified as separate and distinct incidents. Furthermore, the State
presented no evidence at trial that would have indicated to the jury that
the force elements of the three charges were to be satisfied by distinct
acts of violence. Rather, the States case and Currys defense were both
premised almost entirely upon the identification of Curry as the perpetrator. There
was a reasonable possibility the jury used the same facts to establish the
essential elements of force or injury that were used to enhance all three
charges to Class A felonies and Curry was therefore subjected to double jeopardy.
As a result, we affirm Currys convictions of battery as a Class
C felony and attempted rape as a Class A felony. We reduce
his convictions of burglary and criminal deviate conduct to Class B feloniesSee footnote and
remand to the trial court.
When deciding whether a particular jury instruction was proper, we consider 1) whether
the instruction correctly stated the law; 2) whether there was evidence in the
record to support giving the instruction; and 3) whether the substance of the
instruction was covered by other instructions. Fields v. State, 679 N.E.2d 1315,
1322 (Ind. 1997). Instructing the jury lies within the sound discretion of
the trial court, and we will disturb a jurys verdict and reverse a
judgment only if the trial court has abused this discretion. Edgecomb v.
State, 673 N.E.2d 1185, 1186 (Ind. 1996).
Curry first argues the courts instruction on reasonable doubt was improper, despite being
a correct statement of law expressly approved by our supreme court in Winegeart
v. State, 665 N.E.2d 893 (Ind. 1996). He asks that we reexamine
the Winegeart instruction with the benefit of analysis derived from other jurisdictions that
have been confronted with objections or criticisms of the instruction on appeal.
(Br. of Appellant at 11.) We decline Currys invitation, as our supreme
court recently reaffirmed the Winegeart instruction in Wright v. State, 730 N.E.2d 713,
716 (Ind. 2000). In light of this precedent, we do not find
error in the trial courts reasonable doubt instruction.
Next Curry argues the courts instruction on victim testimony was improper. The
trial court instructed:
It is not essential to a conviction that the testimony of the victim
be corroborated by other evidence. It is sufficient if, from all the
evidence, you believe beyond a reasonable doubt that the crimes charged were committed
by the defendant.
(R. at 119.) This instruction is a correct statement of law,
v. State, 549 N.E.2d 1030 (Ind. 1990), and Curry acknowledges as much.
(Br. of Appellant at 12.) Curry, however, posits the evidence did not
support the use of this instruction and its use unfairly highlighted and vouched
for the testimony of the victim. (Id.) We disagree.
When considering whether the evidence supports an instruction, we examine the jury instructions
as a whole and in reference to each other. An error in
a single instruction will not require reversal unless the entire charge misleads the
jury as to the law in the case. Edgecomb, 673 N.E.2d at
1186. In this case, the fact that the victims testimony was corroborated
by Currys admissions and other physical evidence does not make the instruction erroneous.
The jury was instructed how to use witness testimony, including the victims,
and that it could not convict absent evidence beyond a reasonable doubt.
We find no error.
3. Sufficiency of the Evidence
When reviewing the sufficiency of evidence presented to support conviction, we neither reweigh
the evidence nor judge the credibility of the witnesses. Perry v. State,
638 N.E.2d 1236, 1242 (Ind. 1994); Byrd v. State, 707 N.E.2d 308, 312
(Ind. Ct. App. 1999). Rather, we look to the evidence that supports
the verdict and all reasonable inferences which can be drawn therefrom. Taylor
v. State, 681 N.E.2d 1105, 1110 (Ind. 1997); Chissell v. State, 705 N.E.2d
501, 505 (Ind. Ct. App. 1999), trans. denied, 714 N.E.2d 170 (Ind. 1999).
We will affirm a conviction if there is probative evidence from which
a reasonable jury could find the defendant guilty beyond a reasonable doubt.
Taylor, 681 N.E.2d at 1110.
Curry does not dispute there was overwhelming evidence that Ms. Pounders suffered a
horrifying attack, (Br. of Appellant at 17), and challenges only the sufficiency of
evidence linking him to the crimes. There was ample evidence to support
the finding he was the attacker.
Evidence that Curry was the attacker came from three sourcesphysical evidence, admissions, and
victim identification. Currys fingerprints were found on the sliding glass door to
the victims apartment, thereby placing him at the scene of the crime.
He attempted to explain this to the investigating detective. During his questioning,
the investigating detective informed Curry of his intention to match Currys DNA and
fingerprints with any found at the crime scene. The detective asked Curry
if he wanted to tell him anything before they took blood, hair, and
saliva samples from him. The detective also asked Do you think theyre
going to believe that you dont know how your fingerprints and your DNA
got in that apartment? (R. at 324.) To this, Curry responded
I know exactly how my fingerprints got in that apartment . . .
. [b]ecause I was welcomed into the home. (Id.)
Curry went on to admit having consensual intercourse with the victim.
See footnote He
stated Yeah, I had sex with her, but not forcefully. (
When asked if they had anal sex, he told the detective Yeah, she
told me shed like that. (Id. at 329.) When asked about
whether she liked rough sex, Curry responded The way she acted, she did
cause shes weird. (Id.)
Beyond the fingerprints on the door of the victims apartment and Currys admissions,
the victim was able to give a general description of her assailant.
While the description was somewhat vague and she admitted to not being able
to identify Curry as her assailant, her general description was not inconsistent with
Currys appearanceincluding a tattoo on his forearm. This description in connection with
the physical evidence and admissions provides sufficient evidence to permit the jury to
have concluded Curry was the attacker.
We affirm Currys convictions of battery as a Class C felony and attempted
rape as a Class A felony and reduce his convictions of burglary and
criminal deviate conduct to Class B felonies. We remand to the trial
court for proceedings consistent with this opinion.
BROOK, J., concurs.
DARDEN, J., concurring in part and dissenting in part with opinion.
COURT OF APPEALS OF INDIANA
WAYNE CURRY, )
vs. ) No. 49A02-9910-CR-732
STATE OF INDIANA, )
DARDEN, Judge, concurring in part and dissenting in part.
I fully concur with the majority as to Issues II and III of
the opinion. However, as to Issue I, I would respectfully affirm in
part, dissent in part and, accordingly, remand to the trial court.
Referring to Issue I and as to Count I of the charging information,
I fully concur with the majority to affirm Currys conviction for the crime
of attempted rape as a class A felony. As to Count II
of the charging information, I would also concur with the majority to reduce
Curry's conviction for criminal deviate conduct to a class B felony. As
to Count III of the information, I would dissent with the majority which
ruled to reduce Currys conviction for burglary as a class A felony to
burglary as a class B felony;
and, instead, I would dismiss the burglary charge in its entirety.
Lastly, as to Count IV of the information, I would dissent from the
majority and would rule to vacate defendants conviction for battery as a class
My reading of the facts and interpretation thereof differs somewhat from that of
the majority. The evidence reveals that while Pounders was asleep on her
bed, which consisted of a box spring and a mattress on the floor,
Curry jumped on her back and placed his forearm around her neck.
The parties struggled on the bed and the more Pounders struggled, the more
Curry tightened his grip around her neck. During the struggle and as
Pounders moved along her bed, she fell off onto the floor. Still
in the midst of the struggle, she was pulled back onto the bed
and passed out momentarily. She recalls being pushed off the opposite side
of the bed onto the floor where she was pinned on her stomach
and sexually assaulted.
Her exact testimony regarding the attack was as follows:
I remember waking up to somebody had jumped on my back and had
put a forearm around my neck like he was choking me. . .
. I tried to get up to struggle to try to get
loose, but it seemed like every time I struggled, it would get tighter
around my neck. . . . I was moving along my bed
and I had somehow fallen to the right side of my bed and
I remember getting pulled back up to my bed and at that time
I had passed out. . . .
I passed out and when I woke up, I was getting pushed off
of my bed onto the other side of the floor. . . .
The person had laid me on my stomach on the other side
of the bed that I was laying on when I was sleeping and
he had me pinned - - I dont know how - - he
had me pinned where I couldn't see anything. My hair was flipped
to my face where I couldn't see anything. And he pulled my
shorts down to my knees or to my ankles, I don't remember how
far, and he had started to rape me anally. . . .
He had tried to go into my vagina [the attempted rape], but it
didn't go in. And he had gone into my anus and he
was in there for a little bit [the criminal deviate sexual conduct], I
don't know how long it was, and he had stopped and he had
gone back into my vagina for a couple of times [attempted rape], and
then he went out.
(R. 175) (emphasis added).
Additional state's evidence was presented by Suzanne Young, a nurse practitioner, who treated
Pounders shortly after the attack and testified to the following:
Question: Okay. And did she give you details of the actual
Young: She stated that there was vaginal penetration and that there was
Question: Okay. And did she say whether or not either of
those caused her any pain or any discomfort?
Young: Well, the vaginal, as I recall, was brief. She didn't
think that there was ejaculation in the vagina. The anal penetration was
Question: And after she gave you the details of the assault, then
did you actually move her into the examining room to actually perform the
Question: And the results of your examination as far as the pelvic
examination, what were those?
Young: The pelvic examination, abdominally she was normal. She was a
little tender, but it didn't appear that there was any internal damage.
Externally, she had about an eight millimeter hematoma, which is a little blood-filled
soft tissue area, by the anus, which I don't know if I'm
supposed to say that which would be consistent with blunt force trauma
to that area.
Question: Okay. And any other injuries that you noted in her
Young: The only other interesting finding was that there was fecal debris
not only around the anus, but up into the lower area of the
I believe that the actual evidence test as outlined in Richardson v. State,
717 N.E.2d 32 (Ind. 1999) provides us with all the guidance needed to
resolve this case. When considering a double jeopardy claim under the "actual
evidence test," "the actual evidence presented at trial is examined to determine whether
each challenged offense was established by separate and distinct facts." Id. at
52. The two challenged offense are the "same offense" when the defendant
shows "a reasonable possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have been used to
establish the essential elements of a second challenged offense." Id. at 53.
On the other hand, Curry's convictions for attempted rape, as a class A
felony, and criminal deviate conduct, as a class A felony, do not violate
Indiana's double jeopardy clause. The actual evidence presented at trial establishes each
offense by separate and distinct facts. For example, the essential elements of
attempted rape as charged are as follows: (1) Curry; (2) knowingly or intentionally;
(3) while using deadly force;
See footnote (4) took a substantial step toward having sexual
intercourse with Pounders; (5) when Pounders was compelled to submit by force or
imminent threat of force.
Ind. Code § 35-41-5-1; 35-35-42-4-1. The essential
elements of criminal deviate conduct as charged are: (1) Curry; (2) knowingly or
intentionally; (3) while using deadly force; (4) caused Pounders to perform or submit
to deviate sexual conduct; (5) when Pounders was compelled by such force or
imminent threat of such force. Ind. Code § 35-42-4-2.
These offenses are distinguished by the elements requiring "sexual intercourse" and "deviate sexual
conduct." "'Sexual intercourse' means an act that includes any penetration of the
female sex organ by the male sex organ." Ind. Code § 35-41-1-26.
"'Deviate sexual conduct' means an act involving: (1) a sex organ of
one person and the mouth or anus of another person; . . .
." Ind. Code § 35-41-1-9. The statutes show that attempted rape
cannot occur without taking a substantial step towards penetration of the female sex
organ by the male sex organ, and criminal deviate conduct cannot occur without
the performance of an act involving a sex organ and another's mouth or
anus. See Riggs v. State, 508 N.E.2d 1271 (Ind. 1987) ("A defendant
may be charged with multiple acts of rape and deviate sexual conduct committed
upon the same victim when each act requires proof of a specific fact
which the others do not.") Pounders testified that Curry attempted both anal
and vaginal penetration. However, anal penetration is not "sexual intercourse" under Indiana's
rape statute, and vaginal penetration is not "deviate sexual conduct" under the criminal
deviate conduct statute. Therefore, other than the use of deadly force, no
reasonable possibility exists that the same evidentiary facts used by the jury to
establish the essential elements of attempted rape could also have been used to
establish the essential elements of criminal deviate conduct. Therefore, Curry's conviction for
attempted rape as a class A felony should be affirmed and a conviction
for criminal deviate sexual conduct as a class B felony should be imposed.
There is no evidence or serious dispute that the objective of Curry breaking
and entering was to commit the sexual attack on Pounders. In Count
III of the information, the state charged Curry with committing burglary as a
class A felony due to Pounders sustaining bodily injury.
See footnote I recognize that
the basis for the enhancement of the burglary charge to a class A
felony was based on Curry's infliction of bodily injury and that the enhancements
for attempted rape and criminal deviate conduct were based upon Curry's use of
deadly force. However, the actual evidence in this case shows that all
the enhancements are based upon the same injurious consequence: the choking of Pounders
causing bruising and momentary unconsciousness during the tussle.
I am further puzzled that Curry could commit such a brutal attack upon
Pounders by the use of deadly force, which created a substantial risk of
serious bodily injury, without also having committed bodily injury. All the injuries
sustained by Pounders occurred during the struggle on the bed There
is no evidence of a separate and distinct battery resulting in injury.
In essence, and pursuant to
Richardson and the application of the "actual evidence
test," I believe that the "bodily injury" sustained by Pounders was subsumed into
or is a lesser included injury resulting from the same injury inflicted by
Curry's use of "deadly force." Russell v. State, 711 N.E.2d 545 (Ind.
Ct. App. 1999). Because the enhancement of the crime of burglary to
a class A felony was based upon the same injurious consequences that caused
the enhancement of the crimes of attempted rape as a class A felony
and criminal deviate sexual conduct as a class A felony, I would vacate
Curry's conviction for burglary. There is a reasonable possibility that the same
evidentiary facts used by the fact finder to establish the essential elements of
the crimes of attempted rape and criminal deviate sexual conduct, both enhanced to
class A felonies, may also have been used to establish the essential elements
of another challenged offense, i.e., burglary, as a class A felony. Curry
was subject to multiple convictions based upon the same injurious behavior as outlined
and charged in Counts I, II and III of the information. See
also, Campbell v. State, 622 N.E.2d 495 (Ind. 1993).
Finally, based upon the facts in this case, I further believe that Curry's
conviction for battery as a class C felony as charged in Count IV
of the information should be vacated. To convict Curry of battery as
a class C felony, the state was required to prove the following:
(1) Curry; (2) knowingly or intentionally; (3) touched Pounders in a rude, insolvent
or angry manner; (4) which resulted in serious bodily injury
See footnote to Pounders.
Ind. Code § 35-42-2-1.
It is undisputed that Pounders received, by the use of deadly force, multiple
injuries to her neck, knees, eyes, ears, and sustained bruising during the attack.
Smith v. State, 455 N.E.2d 606 (Ind. 1983). However, I am
unable to ascertain where in the record the evidence supports more than a
single episode of brutality to accomplish the sexual assault upon Pounders. After
Pounders was choked and passed out momentarily, she was pinned to the floor
and sexually assaulted. There is no evidence of a separate and distinct
battery after Pounders regained consciousness. It is obvious to me that the
same evidence used in support of the battery causing serious bodily injury is
the same deadly force evidence that was used to enhance the charges of
burglary, attempted rape, and criminal deviate conduct, all to class A felonies.
The actual evidence in this case also demonstrated that there was a reasonable
possibility that the evidentiary facts used by the jury to establish the essential
elements of battery were also used to establish the essential elements of the
enhanced charges for burglary, attempted rape, and criminal deviate conduct, all as class
A felonies. Therefore, the battery conviction should be vacated.
Curry's conviction for attempted rape, as a class A felony, should be affirmed.
Curry's conviction for criminal sexual deviate conduct should also be affirmed; however,
conviction should be only entered as a class B felony. Both of
Curry's convictions for burglary, as a class A felony, and battery, as a
class C felony should be vacated. I would hereby remand the case
to the trial court for resentencing in accordance with this opinion.
Ind. Code § 35-42-4-2.
Footnote: Ind. Code §§ 35-41-5-1, 35-42-4-1.
Footnote: Ind. Code § 35-43-2-1.
Footnote: Ind. Code § 35-42-2-1.
Footnote: Ind. Code § 35-42-4-1(b)(3), 35-42-4-2(b)(3). Serious bodily injury is defined
as bodily injury that creates a substantial risk of death or that causes
serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment
of the function of a bodily member or organ. Ind. Code §
Footnote: Ind. Code § 35-43-2-1. Bodily injury is defined as any
impairment of physical condition, including physical pain. Ind. Code § 35-41-1-4.
Footnote: Currys double jeopardy protections are not implicated by the battery conviction.
Curry strangled Pounders to the point of unconsciousness, and the subsequent beating
did not take place until after she had regained consciousness. This act
was clearly separated from the beating by the States charging information and by
Pounders testimony at trial.
Footnote: We do so pursuant to
Ritchie v. State, 243 Ind. 614, 618,
189 N.E.2d 575, 576 (1963). There our supreme court held that when,
under the evidence as found by the court or jury, the accused should
have been adjudged guilty of a lesser included offense, an appellate court may
modify the judgment by reducing the conviction to that of the lesser included
offense and thus avoid a new trial. See also Nuerge v. State,
677 N.E.2d 1043, 1047 (Ind. Ct. App. 1997). The court noted in
Ritchie the general rule that a reviewing court, in a proper case, may
modify a judgment of conviction below and affirm it as a conviction of
a lesser degree of the offense charged, or of a lesser crime included
therein, where the errors do not affect the conviction of the lesser offense.
243 Ind. at 619, 189 N.E.2d at 577, quoting 5 Am. Jur.
2d Appeal and Error § 938.
The Ritchie court found that its discretion to so modify sentences was premised
upon Burns Ann. St. § 9-2321, which provided in pertinent part that [o]n
appeal, the court may reverse, modify, or affirm the judgment appealed from, and
may, if necessary or proper, order a new trial. In any case,
the cause must be at once remanded to the trial court, with proper
instructions . . . . Similar provisions are now included in Ind.
Appellate Rule 15(N). However, the Ritchie court noted that [t]here are a
number of states without any constitutional or statutory authority specifically authorizing modification or
alteration of judgments on appeal in criminal cases; yet the high courts of
those states have found that they have inherent discretion to do so.
243 Ind. at 622, 189 N.E.2d at 578.
We have followed the Ritchie approach in a number of subsequent decisions.
See, e.g, Anderson v. State, 674 N.E.2d 184, 185-86 (Ind. Ct. App. 1996),
where the defendant was found guilty of aggravated battery as a lesser included
offense of attempted murder. On appeal, the aggravated battery conviction was vacated,
and the case was remanded with instructions to enter judgment and sentence on
the offense of battery with a deadly weapon, a class C felony, a
lesser included offense of attempted murder. And see Lane v. State, 175
Ind. App. 543, 548, 372 N.E.2d 1223, 1225-27 (1978); Nunn v. State, 601
N.E.2d 334, 339-40 (Ind. 1992); Johnson v. State, 594 N.E.2d 817, 820-21 (Ind.
Ct. App. 1992); Isom v. State, 589 N.E.2d 245, 248 (Ind. Ct. App.
1992); and Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind. 1987).
Curry additionally argues it was error for the trial court to reject
his tendered reasonable doubt instruction as it too was a correct statement of
law. As the substance of Currys tendered instruction was sufficiently covered by
the instruction actually given the jury, we do not find error.
Footnote: Curry argues he was only admitting to having consensual sex with some
woman who resided at the same apartment complex as Ms. Pounders, (Br. of
Appellant at 17), and not specifically the victim. Despite this argument, we
believe a more reasonable inference to be drawn from his admissions, when viewed
in the light most favorable to the judgment, is that Curry was admitting
to having had consensual sexual intercourse with the victim. Curry was being
questioned about the crime against the victim and was offering an explanation why
his fingerprints and potentially his DNA might be found in the victims apartment.
Additionally, the detective through whom these admissions were presented was cross-examined on
this specific point. Therefore, Curry is merely offering us an opportunity to
reweigh evidencesomething we do not do.
Footnote: "'Deadly force' means force that creates a substantial risk of serious
bodily injury." Ind. Code 35-41-1-7. In
Smith v. State, 455 N.E,2d
606 (Ind. 1983), the victim was thrown down on her back, her assailant
put his hand over her mouth and nose, cutting off her ability to
breathe and almost rendered her unconscious before she was sexually attacked. In
Calbert v. State, 418 N.E.2d 1158 (Ind. 1981), the victim was grabbed, knocked
to the floor, sat upon and repeatedly slapped, bitten and threatened by her
assailant before being sexually assaulted. In both cases, our supreme court held
that the assailants had used "deadly force" to effectuate their felonious intent.
"'Bodily injury' means any impairment of physical condition, including physical pain."
Ind. Code 35-41-1-4.
Footnote: "'Serious bodily injury' means bodily injury that creates a substantial risk
of death or that causes:
. . . . .
(3) extreme pain; . . . "
Ind. Code 35-41-1-25.