Foncannon v. State

• Decision Date: 26 December 1974
• Docket Number: No. 2--174A50,2--174A50
• Citation: Foncannon v. State, 320 N.E.2d 793, 162 Ind.App. 600 (Ind. App. 1974)
• Parties: Stephen R. FONCANNON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 793

320 N.E.2d 793

162 Ind.App. 600

Stephen R. FONCANNON, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 2--174A50.

Court of Appeals of Indiana, Second District.

Dec. 26, 1974.

Larry R. Champion, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

The Defendant-AppellantStephen R. Foncannon(Foncannon) appeals the trial court judgment convicting him of Assault and Battery with Intent to Rape, claiming insufficient evidence.

We affirm.

FACTS

The facts most favorable to the State are as follows:

At approximately 12:30 P.M. on March 30, 1973, Ellen drove into the Michigan Meadows apartment complex in Indianapolis, Indiana, where she resided.As she parked her car near her apartment building she observed Foncannon sitting in an auto nearby.

Walking toward her second story apartment she further observed Foncannon drive his car to the back of her apartment building and park it, leaving the engine running and a car door open.

After placing a large box she was carrying in her apartment, Ellen was about to and locked her apartment door as she and locked her apartment door as she heard someone approaching via the rear stairway.

As she started down the stairs Foncannon, laughing and grinning, seized her 'with force' and 'reached his hand up my dress and grabbed my female organs', and touched her breast.

She screamed and began pushing and kicking, and finally managed to break away.

Once outside, she told two maintenance men that 'a guy grabbed' her, and they immediately pursued Foncannon, apprehending him after a chase in a nearby apartment building.

Foncannon admitted being in Ward's apartment building, but stated he was merely passing through to get assistance for his stalled car when he tripped on his shoestring causing him to bump into Ellen.

Foncannon was convicted of Assault and Battery with Intent to Rape and sentenced to one to ten years imprisonment.

ISSUE

Was there sufficient evidence to support Foncannon's conviction of Assault and Battery with Intent to Rape?

Foncannon contends that there is no substantial evidence, either of a direct or circumstantial nature, from which an intent to rape could be reasonably inferred.

The State replies that the mere fact that foncannon did not consummate a rape does not negate his obvious intent to rape as shown by the evidence most favorable to the State.

DECISION

CONCLUSION--It is our opinion that there was sufficient evidence of Foncannon's intent to rape.

Recognizing that we will not weigh the evidence nor determine credibility but will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom to determine if there was substantial evidence of Foncannon's intent to rape, it is apparent there was sufficient evidence of such intent.Washington v. State(1971), 257 Ind. 40, 271 N.E.2d 888;McIntosh v. State(1970), 254 Ind. 484, 260 N.E.2d 775;Byassee v. State(1968), 251 Ind. 114, 239 N.E.2d 586;Sampson v. State(1968), 251 Ind. 72, 238 N.E.2d 661;Arnett v. State (1973), Ind.Ct.App., 291 N.E.2d 376;Hendley v. State (1974), Ind.Ct.App., 311 N.E.2d 849.

In Washington v. State, supra, our Supreme Court observed:

'To prove the offense of Assault and Battery with Intent to Rape, the intended act (rape) need not be shown to have been consummated, it needs only to be shown that there was...