Dixon v. State

• Decision Date: 16 September 1981
• Docket Number: No. 1-181A19,1-181A19
• Parties: Donald B. DIXON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 673

425 N.E.2d 673

Donald B. DIXON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-181A19.

Court of Appeals of Indiana, Fourth District.

Sept. 16, 1981.

John D. Clouse, Michael C. Keating, Laurie A. Baiden, Evansville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Carolyn M. Brawner, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

CHIPMAN, Presiding Judge.

Donald B. Dixon was found guilty of attempted child molesting, a class C felony, as proscribed by Ind.Code 35-42-4-3(c). ¹ On appeal Dixon challenges the sufficiency of the evidence to sustain his conviction. He also argues the trial court erred in instructing the jury and in admitting evidence of uncharged crimes.

We affirm.

I. Sufficiency of the Evidence

When considering sufficiency challenges on appeal, we will not invade the province of the jury by weighing the evidence or judging witnesses' credibility. Miller v. State, (1981) Ind., 417 N.E.2d 339; Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239. Our review is confined to considering only the evidence most favorable to the State, together with all reasonable and logical inferences which may be drawn therefrom in order to determine whether each element of the alleged offense has been proved beyond a reasonable doubt. Johnson v. State, (1980) Ind., 400 N.E.2d 132. The verdict will not be disturbed on the basis of insufficient evidence unless there is an absence of substantial probative evidence upon a material element of the offense, or the evidence is without conflict and leads to but one reasonable conclusion, which is contrary to the conclusion reached by the trier of fact. Carpenter v. State, (1974) 159 Ind.App. 373, 307 N.E.2d 109.

Utilizing this standard of review, the record discloses that on September 21, 1979, Dixon reported for work at a construction site about 7:30 a. m. but was sent home because of rain. At home, Dixon took two Allerest tablets to relieve sinus congestion. By 9:00 a. m. he had also consumed a couple beers and three shots of vodka, but Dixon indicated he did not consume any more alcoholic beverages later in the day.

According to Dixon's testimony, at approximately 1:30 that afternoon he went to St. Joseph Catholic Elementary School, ostensibly to determine whether his sister's two children, Joy Marie Hunter and Jolynn Hunter, were enrolled. The scenario of events, as disclosed by the respective witnesses' testimony, however, conflicts with Dixon's avowed purpose. A teacher from St. Joseph's testified Dixon wandered into her classroom and said he was looking for his niece, a third grader named Tracy Dixon. The school's custodian testified Dixon told him he was there to see his little girl, who was in the third grade and whose last name was Dixon. The record is devoid of any evidence indicating Dixon had either a niece or daughter enrolled at this school.

The testimony also showed Dixon was asked to leave St. Joseph's, which he did, but that shortly thereafter he reentered the building, only to again be escorted from the school. Following this ejection Dixon crossed St. Joseph's playground, scaled the eight foot fence encircling it, and walked directly across the street into Delaware School.

Dixon was found meandering throughout the Delaware School building, and when approached by school personnel he gave inconsistent explanations for his presence. On one occasion Dixon stated he was looking for his sister, a junior high pupil whose last name was Dixon. On two other occasions he stated he was looking for his daughter, a kindergarten student. Again, there was no evidence Dixon had either a sister or daughter enrolled in this school.

Dixon was also requested to leave Delaware School. Twice he was escorted from the building by the school's principal; however, he persisted in reentering the school a third time, and on this occasion, he also entered a second floor restroom designated for "girls." Apparently not long thereafter a twelve-year-old coed entered this restroom. As she was preparing to exit from a stall, Dixon jumped over the stall wall, landing on her shoulder and knocking her to the floor.

The young girl indicated she tried to escape by crawling under the stall, but Dixon grabbed her by the shoulders, pulled her back into the stall, forced her to stand, and then sought to unzip her pants. The victim further testified Dixon told her if she screamed or tried to get away he would kill her; nevertheless, she screamed, and a teacher soon entered the restroom to investigate. This teacher testified that upon seeing a man's boots behind one of the stall doors, she left to obtain assistance. At this point, Dixon unlocked the stall door and ran from the restroom, through the school, and out of the building. He was pursued across the school yard and throughout the neighboring area by school personnel who ultimately found Dixon lying under a parked car. They then detained him until the police arrived.

According to an Evansville police officer, when he questioned Dixon, appellant stated he had been at the school looking for his niece and nephew, Jolynn and Joy Hunter. He denied any incident in the girls' restroom or involvement with the twelve-year-old victim. Dixon also claimed he walked from the school and did not run until several people started yelling at him, and he saw police cars in the area. At trial Dixon admitted entering the girls' restroom but said he had just entered to use one of the stalls, and a girl screamed when he opened the door. He denied ever touching the coed.

On appeal Dixon maintains the foregoing evidence is insufficient to sustain his conviction of attempted child molesting by means of sexual intercourse because the State failed to show he intended to perform sexual intercourse. We disagree.

Our attempt statute, Ind.Code 35-41-5-1, provides in pertinent part:

"(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime."

Thus, pursuant to this statute, in order to find an attempt to commit a crime, the State must prove the defendant was: (1) acting with the required culpability, and (2) engaging in conduct which constituted a substantial step toward commission of the offense. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507.

Dixon does not assert the State failed to show his actions were knowingly made, and he concedes the testimony was sufficient to show he had gone beyond mere preparation and in fact, had engaged in an overt act which constituted a substantial step toward some prohibited conduct, but he insists it was not possible to positively determine what prohibited conduct he intended; therefore, it was erroneous to permit the jury to conclude he intended to engage in sexual intercourse. We find the crucial question is not, however, whether it was possible Dixon intended to commit a sexual act other than intercourse, but rather, whether it was reasonable for the jury to conclude he intended to commit sexual intercourse. Under the circumstances of this case, we find such a conclusion was reasonable.

Clearly there is no absolute certainty which accompanies the determination of a criminal defendant's intent when he entered into a particular course of conduct. We can only endeavor to glean the defendant's intent by examining his actions.

" 'Intent is a mental function, and, where not consummated, (and indeed even then), it is impossible to know with absolute certainty, what was operating in the actor's mind; and in such cases it must be arrived at by courts and juries from a consideration of the conduct and natural and usual sequence to which such conduct logically and reasonably points.' "

Byassee v. State, (1968) 251 Ind. 114, 239 N.E.2d 586, 588, quoting Hanes v. State, (1900) 155 Ind. 112, 116, 57 N.E. 704, 705. Thus, a criminal defendant's liability will ultimately turn on his purpose as manifested through his conduct. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507.

After reviewing Dixon's course of conduct we are convinced the evidence was sufficient to permit the jury to reasonably conclude Dixon was guilty of attempted child molesting by means of sexual intercourse. Byassee v. State, supra; see Himes v. State, (1980) Ind., 403 N.E.2d 1377. While it is possible Dixon intended to commit some act other than intercourse, it was reasonable for the jury to conclude he intended to have sexual intercourse with the child and had taken a substantial step toward this end when he physically restrained the young girl in a restroom stall, at a time when the two were alone, and sought to unzip the child's pants.

II. Instructions to Jury

Count I of the Information charging Dixon with attempted child molesting alleged in pertinent part:

"(T)hat DONALD B. DIXON ____________________ on or about the 21 day of September A.D., 1979 , ... being over the age of sixteen (16) years did attempt to commit the crime of performing sexual intercourse with Pamela B. Jackson, a child twelve (12) years of age or older, but under the age of sixteen (16) by threatening the use of deadly force on the said Pamela B. Jackson in that the said Donald B. Dixon did knowingly confine the said Pamela B. Jackson in the Girl's Restroom of the Delaware School located at 700 N. Garvin Street, in the City of Evansville, County of Vanderburgh, State of Indiana, by the use of force and the imminent threat of force on the said Pamela B. Jackson, by knowingly attempting to unzip the pants of the said Pamela B. Jackson while she was so confined and by knowingly threatening to kill the said Pamela B. Jackson if she resisted his attempts to undress her, all of which conduct constituted a substantial step toward the crime of Child Molesting, all in violation of I.C. 35-41-5-1 and I.C. 35-42-4-3."

It is clear this Information charged Dixon with attempted child molesting by attempting...