Guffey v. State, 386 N.E.2d 692 (Ind. Ct. App., First District 1979)

ROBERTSON, Judge.

Kenneth A. Guffey, Sr. was found guilty in a trial by jury of assault and battery with intent to gratify sexual desires1 and brings this appeal raising three issues: sufficiency of the evidence; the trial court’s refusal to grant a new trial on the basis of newly discovered evidence; and the giving of an “Allen” type charge to break a jury deadlock.

We affirm.

The facts most favorable to the State are that on the morning of May 30, 1975, D. Melton,- the prosecutrix, M. Davis (Davis) and Kenneth Guffey, Jr. (Guffey, Jr.) decided to skip school. The youths were twelve or thirteen years of age. The defendant, Kenneth Guffey, Sr. (Guffey, Sr.) agreed to take Guffey, Jr. and his friends out to the country in his automobile for a party. The youths got into the automobile, and Guffey, Sr. told them to get down so they would be unobserved until they were out of town. Guffey, Sr. drove them to a partially built cabin in the woods near a lake in Bartholomew County. Upon reaching the cabin, he provided the youths with beer and whiskey to drink.

The day was spent drinking, swimming and fishing. At one point Guffey, Sr. was nude after swimming. Guffey, Sr. left by himself once in the day to bring back lunch for the youths and more beer. The prosecu-trix overindulged and became sick after lunch.

At one point during the day Guffey, Sr. was alone in the woods with the prosecutrix where he made lewd suggestions to her, which she rebuffed. There is evidence that Guffey, Sr. made a similar lewd comment to the prosecutrix several days earlier when he first met her.

Sometime in the early evening, Guffey, Sr. told the two boys to go to the automobile parked near the cabin, leaving him alone with the prosecutrix. Guffey, Sr. again made lewd advances toward the pros-ecutrix, telling her he was going to make love with her whether she wanted him to or not. Guffey, Sr. pushed her back on a board on the floor and told her to take off her clothes. Upon her refusal, he laid on her chest with his body and took off her pants and underwear. The prosecutrix attempted to resist but to no avail. Guffey, Sr. had a pistol nearby which he threatened to use if she resisted. Guffey, Sr. then allegedly raped the prosecutrix.

The boys outside in the car during this time heard the prosecutrix scream and, when Guffey, Sr. and she came out, noticed her crying. Guffey, Sr. drove the youths back to town.

Upon inquiry by her mother in the morning, the prosecutrix revealed that she had been raped. The prosecutrix was examined by a doctor and Guffey, Sr. was later arrested for rape and commission of a crime while armed with a deadly weapon.

Guffey, Sr.’s first contention on appeal is that the verdict is not supported by sufficient evidence. His basic argument is that the prosecutrix’s testimony is contradictory and not worthy of belief and since her testimony alone establishes the crime, the conviction must be overturned.

It is fundamental that when determining the sufficiency of the evidence, the appellate court will not weigh the evidence nor resolve questions of witness credibility. This court will consider only that evidence most favorable to the State, together with all reasonable inferences to be drawn therefrom. When there is substantial evidence of probative value supporting the jury’s verdict, the conviction will not be set aside. Poindexter v. State, (1978) Ind., 374 N.E.2d 509, 514.

We do not accept the appellant’s invitation to reweigh the prosecutrix’s credibility. Her testimony more than establishes the elements of the crime of which Guffey, Sr. was found guilty. A conviction of assault and battery with intent to gratify sexual desires may be sustained on uncorroborated testimony of the prosecuting witness even when such witness is a minor. Smith v. State, (1978) Ind.App., 372 N.E.2d 511; Scales v. State, (1975) Ind.App., 333 N.E.2d 814.

The second issue on appeal is whether the trial court erred by not granting his motion for a new trial based on alleged newly discovered evidence. This evidence consists of an affidavit by Guffey, Sr. and his wife that unknown friends of the prosecutrix called by telephone and informed them that prosecutrix’s involvement as a witness was only due to her concern over a pending criminal juvenile action and the prosecutrix in fact did not know of or remember sexual

activity due to her drunkenness. The trial court did not conduct a hearing on this matter and denied the motion.

The granting of a new trial on the basis of newly discovered evidence is a matter which rests in the sound discretion of the trial court and that decision will be overturned on appeal only for an abuse of that discretion. Sanders v. State, (1977) Ind.App., 370 N.E.2d 966, 968. The trial court did not abuse its discretion since at best, the hearsay evidence is merely impeaching of the prosecutrix’s testimony.2

The third issue on appeal is the propriety of the giving of the following supplementary charge to the jury when it informed the court it was deadlocked after approximately six hours of deliberation:

This is a modification of the so-called “Allen Charge” derived from the case of Allen v. United States, (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, in which the Supreme Court approved the use of the charge to break or “dynamite” a verdict out of a deadlocked jury.3

There is no Indiana precedent on the propriety of the charge,4 and we must turn for guidance to other jurisdictions. There have been a host of cases on the charge, but it is hard to generalize since trial court judges vary the charge and because of diverse factual situations. We can state from our research that the Allen charge and its close variants have never been ruled unconstitutional per se as a violation of the right to an impartial trial.5 The main concern of appellate review is rather the coercive effect on the jury; in other words, to what extent does the charge invade the province of the jury or impress upon the jury extraneous factors in their decision-making process.6

It has been stated that the Allen charge is “tolerated” by appellate courts.7 And there does seem to be a trend for appellate courts in their supervisory capacity to either abolish or to dictate the wording of the instruction to the trial courts.8 The federal case of Powell v. United States, (5th Cir. 1962) 297 F.2d 318, 322, states the standard of review:

As to the exact words of the charge, it has been stated that the original Allen charge sets the “ultimate permissible limits” to be contained in the charge. Brasfield v. United States, (1926) 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345; Powell v. United States, supra. It is when trial court judges embellish the thrust of the charge that the potential for reversible error occurs.

The Allen charge has been said to contain three main elements: (1) jurors should candidly deliberate, giving deference to the views of other jurors with a disposition towards being convinced; (2) minority jurors should reconsider the reasonableness of their convictions when concurred in by the majority; and, (3) no juror should abandon a conviction scrupulously held.9 The appellate courts and commentators have found the greatest potential for harm in the second element above: the explicit suggestion or open appeal to the minority to reconsider its view point in light of the majority rule.10 The third element of the charge — the urge not to abandon earnest

convictions — is thought to counterbalance this potential for harm and its omission in the instruction will cause reversible error.11 Apparently not convinced of this safeguard, recent appellate decisions have endorsed the ABA standards which delete any exhortation to the minority.12 We note in the instruction before us that there is no appeal to the minority and thus we need not decide whether or not such an inclusion is proper. The instruction questioned here, however, definitely reflects the trend of the law in this regard.

The instruction at issue does contain elements not found in the original Allen charge and we must therefore carefully examine them. The original Allen charge, as paraphrased, stated that it was the jury’s “duty to decide the case if they could conscientiously do so.” This language has, on occasion, been turned into a mandate by trial court judges to the jury to decide the case or has led to language that the case must be decided sometime.13 These embellishments have been criticized as inaccurate; the case does not have to be decided or retired.14 The case can end in a hung jury and the prosecutor can decline to retry the case. The language used here — that the case must be “disposed of sometime”— has been approved,15 but the trial court here added, “Another trial would be a heavy burden on both sides.” This implication of

another trial does not, in our view, rise to the level of a mandate to decide or a statement that the case will be retried and thus is not a misstatement of the law.

The second paragraph of the instruction dangerously approaches commenting on the evidence and the conduct of the trial and we do not recommend its use. It is however, of such a general nature that we conclude it is not reversible error. We note that in United States v. Brown, (7th Cir. 1969) 411 F.2d 930, the court found such a statement in an Allen charge did not violate sixth amendment constitutional rights.

The third paragraph of the charge is more in the nature of a morale booster than anything else and is thus innocuous. The remainder of the charge follows the Allen charge elements (1) and (3) referred to above.

We turn to the facts of the case to determine if the instruction coerced the jury. According to the affidavit of Guffey, Sr.’s attorney, the jury reported it was deadlocked after six hours of deliberation. The jury reported in open court it was deadlocked as to one of the counts; it is impossible from the record to determine which one. The judge, over objection, gave the supplemental instruction. The jury came back with a verdict in less than one hour — finding the defendant guilty of a lesser included offense of rape and not guilty of the commission of a crime while armed count.

We do not think that the time factor here necessarily suggests coerciveness. There are decisions which found that a much shorter deliberation after the instruction than here was not prima facie coercion.16 And as a theoretical matter, as the Second Circuit points out in United States v. Hynes, (1970) 424 F.2d 754, 758:

Nor do we think that the verdict of the lesser included offense, in itself, mandates a presumption of coercion by the court. We do not wish to second-guess the deliberative processes of the jury.

Guffey, Sr. further contends that the giving of the instruction was fundamental error in that it violated the procedural requirements of IC 35-1-35 — 1 and Criminal Rule 8(B) of the Trial Rules.17

It is true that neither of these rules contemplate supplemental instructions. How

ever, the judge’s right to communicate with the jury in open court during their deliberation, to withdraw erroneous instructions and give additional ones, is undoubted. Hall v. State, (1856) 8 Ind. 439; Purdy v. State, (1977) Ind., 369 N.E.2d 633; Jameison v. State, (1978) Ind., 377 N.E.2d 404. We do not think these provisions were meant to ban any and all supplementary instructions.

Moreover, the recent case of Brannum v. State, (1977) Ind., 366 N.E.2d 1180, does not contradict this view. In that case, the trial court judge gave a supplementary instruction emphasizing a certain aspect of the law mentioned by the defense counsel in closing argument which the judge apparently thought was hindering the jury’s deliberations. The Indiana Supreme Court found this to be reversible error, relying in part on the violation of the IC 35-1-35-1 procedure. It seems to us that Brannum was more concerned with the prejudice raised by emphasizing a particular aspect of evidence or law in giving a supplemental instruction, rather than the procedural violation. We further note that in the instruction before us the judge cautions the jury that the instruction is not more important than the others and should be considered together with and as a part of the other instructions.

The verdict of the jury is affirmed.

LOWDERMILK, J., concurs.

HOFFMAN, J., (sitting by designation) concurs.