Durbin v. State

Citations: 547 N.E.2d 1096; 1989 Ind. App. LEXIS 1287; 1989 WL 154164Docket: 45A03-8902-CR-60

Court: Indiana Court of Appeals; December 18, 1989; Indiana; State Appellate Court

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Keith A. Durbin was convicted of criminal deviate conduct, a class B felony, and sentenced to eight years in prison. On appeal, Durbin raised four issues, which were consolidated into three: the sufficiency of evidence supporting the verdict, whether the trial court erred by not instructing the jury on battery as a lesser-included offense, and whether the sentence was manifestly unreasonable. The Court of Appeals of Indiana affirmed the conviction.

Evidence presented at trial indicated that on July 28, 1987, K.W. and her friends were at a Shell Station in Merrillville, Indiana, when Durbin and three other men on motorcycles approached. K.W. accepted a ride from a man named Kevin, with the condition that she be returned within five minutes. They ended up in a secluded area where Kevin attempted to engage in sexual activity with K.W., who initially consented to kissing but later withdrew her consent. 

As K.W. tried to leave, she was approached by Kalberer and Sanchez, who forcibly restrained her and made threatening comments. Despite her distress, K.W. felt pressured to comply with their demands, leading to an act of oral sex with Durbin while the other men were present. K.W. eventually escaped and sought help from a truck driver, who took her to a motel to report the incident to the police. Durbin was later identified as Kevin.

Durbin argued that the trial court erred by denying his motion for a directed verdict, claiming the State failed to prove he used force or threatened force to compel K.W. to perform fellatio, a necessary element of criminal deviate conduct under I.C. XX-XX-X-X. The court stated that a denial of such a motion is valid if sufficient evidence supports the conviction, adhering to the principle that evidence is viewed in favor of the judgment without reassessing credibility. Durbin contended he did not personally use or threaten force, citing his non-involvement in the initial coercive acts and asserting that no premeditated plan existed among him and the other two men involved. He argued that K.W. consensually engaged in the act to escape a threatening situation created solely by Kalberer and Sanchez.

The court disagreed, clarifying that the State is not required to prove a defendant personally committed every crime element. When individuals conspire to commit a crime, each is liable for their associates' actions. Evidence indicated Durbin ignored K.W.'s refusals and pleas for help, and he was seen conferring with Kalberer and Sanchez before soliciting sexual acts from K.W. This behavior allowed the jury to infer that Durbin acted in concert with the others, making him criminally responsible for their actions. The statement by Sanchez suggesting cooperation would ease the situation constituted a sufficient threat of force to satisfy the statute. Additionally, K.W.'s lack of expressed resistance did not negate the criminality of Durbin's actions, as resistance is not a required element of deviate sexual conduct, especially under circumstances where a victim fears harm.

The level of resistance required from a victim during an attack varies based on the situation. It is the responsibility of the trier of fact to evaluate whether the victim's response was reasonable and in good faith. In this case, a young woman was confronted by three men who attempted to coerce her into sexual activity. The victim, K.W., expressed her distress by crying and pleading to be let go, which can be interpreted as a reasonable form of resistance. The circumstances indicated that further resistance might have been unreasonable or impossible, as no law mandates a victim engage in physical confrontation to demonstrate non-consent in such a scenario. Additionally, the jury could conclude that K.W. faced the choice between sexual assault or offering sex to escape, supporting the notion that consent was not given.

The evidence was sufficient for the jury to find beyond a reasonable doubt that Durbin committed criminal deviate conduct, justifying the trial court's denial of Durbin's motion for a directed verdict. Regarding the lesser-included offense of battery, Durbin challenged the trial court's refusal to instruct the jury on this matter, arguing that evidence suggested the touching might have been non-consensual but not forceful. The criteria for such an instruction require that the lesser offense be inherently included in the greater and that there be substantial, undisputed evidence supporting the lesser offense. Battery is a lesser-included offense of criminal deviate conduct, as the latter requires proof of specific sexual acts. Although Durbin acknowledged that fellatio occurred, he contended it was consensual, creating no genuine dispute about the critical act differentiating the two charges.

The evidence did not support the interpretation that a lesser offense occurred without the greater offense, meaning if the jury found K.W.'s actions voluntary, Durbin would also be not guilty of battery. Thus, instructing the jury on battery as a lesser-included offense could lead to a compromise verdict, contrary to the legal standards set forth in McNary v. State and Roddy v. State. The court found no error in refusing the battery instruction.

Regarding sentencing, Durbin argued that an eight-year sentence was unreasonable, claiming his crime involved "only a few seconds of oral sex" that was unforced. Though he received a sentence below the ten-year presumptive for a class B felony, he contended the trial judge imposed a sentence influenced by personal irritation over his language and subsequent actions. Sentencing discretion rests with the trial court, which must consider aggravating and mitigating circumstances, as established in Duvall v. State and Brown v. State. 

The trial court cited Durbin's extensive criminal history as an aggravating factor, supported by the pre-sentence report, while noting his potential for positive response to short-term imprisonment as a mitigating factor. The trial judge’s decision was not shown to be influenced by personal bias, especially since the sentence was below the presumptive term. The court found no manifest unreasonableness in the sentence given the legitimate aggravating factors considered.

Additionally, Durbin briefly claimed the jury should have received instructions on consent; however, he did not formally tender such an instruction. Thus, he could not object to the omission. The trial court had sufficiently covered the consent issue in the instructions concerning the elements of criminal deviate conduct, which inherently require proof of force, negating consent. Lastly, Durbin argued against the admission of K.W.'s out-of-court statements as hearsay, but since he did not object during the trial, this issue was waived for appeal.