A jury trial resulted in the conviction of appellant of Attempted Child Molesting, a Class A felony, for which he received a sentence of twenty (20) years, and Child Molesting, a Class A felony, for which he received a sentence of twenty (20) years, the sentences to run concurrently.
The facts are: On August 28, 1987, the eleven-year-old victim was in the home of her parents watching television with her older sister who was asleep on the floor. Appellant came to the front door and stated that he was confused, and he thought another family lived there. He left but in a few seconds returned and rang the doorbell a second time. He then told the vietim that he needed to use the telephone. She protested that her parents were not at home; he said, however, that he would not be long and she permitted him to enter the house.
Shortly after entering, he grabbed the victim, held his hand over her mouth, and took her into a bedroom. He took off her underwear and shorts and placed her on the bed. He then attempted to penetrate her vagina with his penis but was unable to do so. At that time, the victim told him to "Stop, it hurts," to which appellant replied, "Be quiet or I'll kill you." Appellant then inserted his penis in the victim's anus.
When appellant had completed the anal intercourse, he left. The victim then notified her sister as to what had happened. When returning to the bedroom, the victim found that appellant had left his Magnavox employee identification card laying on the bed. The card contained both the picture and the name of appellant. It was entered in evidence as State's Exhibit No. 1.
The victim was taken to the hospital where she was examined.
Appellant claims there is insufficient evidence to support the verdict of the jury. He contends the evidence is insufficient to show that he used or threatened to use any deadly force which was necessary to raise the crimes to a Class A status. It is true that appellant did not state that he had any weapons nor did the victim see any weapons during the course of the attack.
However, when one considers the victim was a child of eleven years of age and appellant was an adult who grabbed the child, took her to a bedroom, undressed her, placed her on a bed, and when she protested, told her to be quiet or he would kill her, appellant was threatening to use deadly force which is sufficient under Ind. Code § 85-42-4-8. Pennington v. State (1988), Ind., 523 N.E.2d 414; Lambert v. State (1987), Ind., 516 N.E.2d 16. The evidence in this case is sufficient to sustain the verdict of the jury.
The trial court is affirmed.
PIVARNIK and DICKSON, JJ., concur. DeBRULER, J., concurs and dissents with separate opinion in which SHEPARD, C.J., concurs.