Newbill v. State

884 N.E.2d 383, 2008 Ind. App. LEXIS 727, 2008 WL 1734897
CourtIndiana Court of Appeals
DecidedApril 16, 2008
Docket79A02-0705-CR-433
StatusPublished
Cited by21 cases

This text of 884 N.E.2d 383 (Newbill v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newbill v. State, 884 N.E.2d 383, 2008 Ind. App. LEXIS 727, 2008 WL 1734897 (Ind. Ct. App. 2008).

Opinions

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Lawrence E. Newbill appeals his conviction, after a jury trial, on one count of rape, as a class B felony.1

We affirm.

ISSUES

1. Whether insufficient evidence of force supports the jury’s conclusion that Newbill committed rape.

2. Whether the trial court committed reversible error in its instruction of the jury.

[387]*3873. Whether the prosecutor committed misconduct.

4. Whether the trial court committed reversible error in the admission of evidence.

5. Whether the trial court’s admission of some testimony by a sexual forensic nurse examiner constituted fundamental error.

6. Whether cumulative trial error combined to deny Newbill a fair trial.

FACTS

On the afternoon of January 18, 2006, Lori Johnson picked up H.R. and H.R.’s 15-month-old son M. and took them to Lori’s two-bedroom duplex. M.’s father was Keenan Lowe, Lori’s son, but Keenan and H.R. were no longer together, and H.R. was living with her current boyfriend. Lori wanted to visit with her grandson, M., and H.R. wanted to use Lori’s laundry facilities. Lori and H.R. had maintained a close relationship, talking daily, and the plan that afternoon was for Lori to take H.R. home when she finished her laundry. Lori left the residence about 4:30 p.m. to run some errands, leaving H.R. and M. there alone.

At approximately 8:30 p.m., H.R. answered the telephone; Newbill, Lori’s brother, informed her that he was coming to the residence to watch a television program. Newbill considered H.R. his niece. Newbill arrived at Lori’s residence at approximately 9:30 p.m., bringing some pornographic magazines with him. H.R. proceeded to put M. to bed in the bedroom. While H.R. was in the bedroom, she heard Lori come in, but then Lori left before she could talk to her.

Newbill told H.R. that Lori was coming back. Newbill was drinking wine and offered some to H.R.; she took “a sip to taste” it. (Tr. 97). Newbill also found some marijuana belonging to Lori. He smoked a marijuana blunt; H.R. had “two puffs” of it but felt no effect. (Tr. 52, 96). H.R. went back to the bedroom, as M. had awakened, and Newbill came in and spent a few minutes playing with the boy. After talking in the bedroom for awhile, both went back to the living room and continued to talk. Lyndon Semple, Lori’s boyfriend, called to say he would be arriving late.2

H.R. went back to the bedroom, where she lay on the bed next to her sleeping son and watched television. Lyndon arrived home between 10:30 and 11:00 p.m. H.R. heard him come in and shower in the bathroom (which is between the two bedrooms), and then she fell asleep.

H.R. felt the bedcovers move, and then Newbill was “rubbing [her] leg, kissing on [her], trying to pull [her] shirt up, kissing on [her] stomach.” (Tr. 58). Newbill had “a scary look” on his face and “was breathing heavily.” (Tr. 62). H.R. “said, what are you doing, please don’t,” and “pushed him away.” Id. Newbill said, “trust me, I could show you what a real man can do instead of these punks.” Id. H.R. “said, no” and “told him [he was] making [her] feel really uncomfortable.” Id. Newbill then “stood up” and “said we can do this the hard way, we can do it the easy way ... you better have those pants off when I get back in this room.” Id. at 58, 59. H.R. “said no, I’m not doing it Larry, I’m not doing it.” (Tr. 59).

Newbill left the room, but then came back and “said, didn’t I tell you to have those clothes off.” Id. H.R. “said I’m not doing it.” Id. H.R. testified that at this point, she “realized [Newbill] had a knife in his hand,” and that he “had it up to [her] neck.” Id.

[388]*388H.R. was backed against the bed’s headboard. Newbill ordered her “to scoot down” and “take those pants off.” Id. H.R. again “said, I’m not doing it Larry, I’m not doing it.” Id. Newbill pulled her toward him on the bed, “pried [her] legs open and pulled [her] pants off.” Id. H.R. “kept trying to talk to him” — reminding him that his nephew was there asleep on the bed next to her, and mentioning Lori and Lyndon. Id. Newbill told her that Lori had come back and that she and Lyndon had left. Newbill “said, aren’t you going to insert my penis,” and she “said, no, I don’t want to do this.” Id. Despite H.R.’s protestations, Newbill proceeded to insert his penis in her vagina and had sexual intercourse with her.

H.R. testified that afterward, Newbill asked her to promise that she would not tell his family, and she agreed — in fear “he would try to hurt her [her] again.” (Tr. 72). Newbill then had a “smirk on his face” and said he “was going to tell Keenan that [he] just [had] a free piece of ass.” Id.

H.R. went to the bathroom and cried. When she looked in the mirror, she saw a fresh red mark on her neck. In the meantime, Newbill had left the bedroom. H.R. went back to the bedroom, curled up in the bed and “rocked [her]self.” (Tr. 65). She heard the microwave, which indicated to her that Newbill had prepared some food, and later she heard him snoring. There was no telephone in the bedroom; it was too late for a bus; and she was too far away to walk home with her son at that late hour.

Shortly after 5:00 a.m., H.R. realized that she, M. and Newbill were not the only persons in the residence when she heard Lyndon get up. She went to the other bedroom, and when she tried to talk, she “just broke down crying.” (Tr. 67). Lyndon testified that H.R. kept saying “please take me home, please take me home, please take me home.” (Tr. 133). Lyndon “keep [sic] on askin’ her why” and H.R. “told [him] that Larry rape [sic] her.”3 (Tr. 134). Lyndon told her that he absolutely had to leave right then to take a friend to work, but that he would come back for her. Lyndon handed her Lori’s cordless telephone and told her to lock herself in the bedroom with M. and that he would call her to check on her until he returned. Lyndon called her twice before arriving to take her home.

Lyndon told H.R. to get her things and M. and get in his vehicle. Just as they were leaving, Lori arrived. Lyndon did not stop “because [H.R.] keep [sic] on saying she’s scared.” (Tr. 136). When H.R. got home, she put M. to bed, and then Lori called. H.R. told her that Newbill had raped her. Lori told H.R. to call the police and proceeded to call the police herself. As H.R. “was about to” call the police, she received a call from them. (Tr. 77). The call was recorded, and reflects that the 9-1-1 dispatcher advised her that an officer was on the way, inquired about whether she was injured, and listened to H.R.’s account of what happened to her. Over Newbill’s hearsay objection, the recording was “received in evidence,” (Tr. 78), and played for the jury. The jury was also given a transcript “as an aid,” to “assist” them as they listened but not to be taken to the jury room during deliberation. (Tr. 78, 79).

Officer Brian Baker was immediately dispatched to H.R.’s home the morning of January 19th. He testified that he found [389]*389her “extremely distraught.” (Tr. 178). Baker further testified that when telling him what had happened, he “had to stop her” several times because he “couldn’t understand what she was saying.

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Newbill v. State
884 N.E.2d 383 (Indiana Court of Appeals, 2008)

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Bluebook (online)
884 N.E.2d 383, 2008 Ind. App. LEXIS 727, 2008 WL 1734897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newbill-v-state-indctapp-2008.