Hendley v. State

• Decision Date: 06 June 1974
• Docket Number: No. 2--773A156,2--773A156
• Citation: 160 Ind.App. 338,311 N.E.2d 849,42 Ind.Dec. 211
• Parties: David Leroy HENDLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 849

311 N.E.2d 849

160 Ind.App. 338

David Leroy HENDLEY, Appellant (Defendant below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 2--773A156.

Court of Appeals of Indiana, Second District.

June 6, 1974.

Robert E. Hughes, Indianapolis, for appellant.

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

BUCHANAN, Judge.

CASE SUMMARY

Defendant-AppellantDavid Hendley(Hendley) appeals from a jury conviction of Assault and Battery with Intent to Commit a Felony (Rape), claiming insufficient evidence as to the requisite intent, and prejudice resulting from improper testimony of prior arrests.

We affirm.

FACTS

The facts and evidence most favorable to the State are:

On July 14, 1971, an 18 year old girl (Karen), was employed as a babysitter at the home of Barry and Sandra Jones in Indianapolis, Indiana.Hendley and a female companion, Diana Gist(Diana), were present when Karen arrived at the Jones' home about 4:00 P.M.The four adults (the Joneses, Hendley and Diana) then departed, leaving Karen in charge of the Jones' two small children.

Later that evening, Hendley and Diana returned to the house with Diana's young daughter and asked Karen if she would agree to watch over her too.Karen agreed, and the couple departed.They then visited various taverns until about 2:00 A.M.

Hendley then returned to the Jones residence, leaving Diana asleep in the car.When Karen answered the door, Hendley informed her that he had come for Diana's daughter who, along with the other two young children, was asleep in a bedroom.

After Hendley gained entrance, Karen resumed watching T.V. in the living room.Hendley followed her, and while both were seated, asked Karen if she was a virgin.After receiving an affirmative reply, Hendley asked her to go with him into the bedroom.She replied, 'No, I don't want to go to bed with you.'

Hendley then went into the kitchen.During his absence, Karen attempted to telephone her parents who lived eight blocks distant.This attempt was thwarted by Hendley who by this time had reentered the room and placed his finger over the phone and advised Karen that she'wasn't going to call anyone.'

This was followed by Hendley's continued insistence that Karen 'go to the bedroom' with him--and Karen's repeated refusals.

Hendley then returned to the kitchen, obtained a knife and began throwing it in front of Karen . . . toward a door.Hendley later obtained a second knife from the kitchen and ran its blade across Karen's throat and legs, while placing his other hand on her breast, all of which was accompanied by additional demands that she go with him into the bedroom.When Karen continued to refuse, Hendley threated to 'split (her) wide open' if she did not comply.

Karen maintained her resistance.

Hendley again withdrew to the kitchen.This time Karen attempted to flee out the front door.Hendley intercepted her on the front porch, seized her by the arm and pushed her back inside against a wall, telling her she was not going to leave.

Later as Hendley investigated a crying child in a bedroom, Karen did escape.She ran to the nearby home of a girlfriend.Hendley pursued her for a short distance, threatening to kill the children if she did not return.

Karen telephoned her parents, who summoned police.Hendley was arrested shortly thereafter at the Jones' home.

At the trial, one of the arresting officers testified as to a conversation he had with Diana informing her of what had transpired since she had last seen Hendley.He testified in part:

'So we advised her of what had happened and the first thing that she said was, she called him a name and said you've done it again, you've done it again, I didn't believe you before but by God, you've done it again, and that's the same exact words that she said.'

No objection was made to this testimony.After the next question, trial counsel objected to the conversation as being hearsay, and the objection was sustained.A few questions later the witness again referred to the fact that Diana said previously, 'he had been arrested before for assault on a baby sitter.'Again trial counsel objected.The Court sustained the objection and admonished the jury to disregard 'reference to any prior arrests which at least at this point has no bearing on his guilt or innocence.'

The jury found Hendley guilty of Assault and Battery with Intent to Rape.He was subsequently sentenced to 1 to 10 years imprisonment under I.C.1971 35--1--54--3, Ind.Ann.Stat. § 10--401(Burns 1973 Suppl.)(Assault and Battery with Intent to Commit a Felony).

Hendley appeals.

ISSUES

Issues properly before this court are:

ISSUE ONE--Was the evidence sufficient to prove that Hendley intended to commit Rape?

ISSUE TWO--Was Hendley prejudiced by Trooper Hilzley's testimony relating to prior arrests despite the trial court's admonishment to the jury to disregard the testimony?

As to ISSUE ONE, Hendley admits the evidence was sufficient to prove an assault and battery, but argues that the proof could not support a reasonable inference that he intended to rape Karen.

The State argues that a reasonable inference as to Hendley's intent could be drawn by the jury from the evidence.

As to ISSUE TWO, Hendley contends that the harm caused by Trooper Hilzley's testimony relating to Hendley's prior arrest record was not cured by the trial court's action of sustaining his objection and admonishing the jury.By so arguing, Hendley raises a different basis of objection to the testimony than was advanced by him at trial, when he stated the evidence constituted hearsay.

The State's position is that adequate measures were taken by the trial court to erase any alleged impropriety which attended Hilzley's testimony.

Waiver of Issue

Hendley argues for the first time on appeal that he was charged and sentenced under the wrong statute--an assertion of error not contained in his Motion to Correct Errors.It is therefore waived.Certain v. State, (1974) Ind., 300 N.E.2d 345;Spivey v. State, (1971)257 Ind. 257, 274 N.E.2d 227;Clardy v. State, (1973) Ind.App., 294 N.E.2d 807;Rule TR. 59(G);Rule CR. 16.

Nor need we consider this issue under the doctrine of 'fundamental error.'¹As the record demonstrates, the indictment against Hendley charged him with Assault and Battery with Intent to Commit a Felony (Rape) pursuant to I.C.1971, 35--1--54--3, Ind.Ann.Stat. § 10--401(Burns 1973 Suppl.).In Washington v. State(1971)257 Ind. 40, 271 N.E.2d 888, an identically worded indictment supported a conviction under this particular statute.

DECISION

ISSUE ONE.

CONCLUSION--It is our opinion that the evidence was sufficient to prove Hendley's intent to commit rape.

Chief Justice Arterburn recently summarized the standard of proof of felonious intent in offenses of this kind:

'To prove the offense of Assault and Battery with Intent to Rape, the intended act (rape) need not to be shown to have been consummated, it needs only to be shown that there was conduct by the accused from which the court or jury could logically and reasonably infer the element of intent.This court in Hanes v. State(1900), 155 Ind. 112, 116, 57 N.E. 704, 705, made the following statement on this point.

'Intent is a mental function, and, where not consummated, 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 the natural and usual sequence to which such conduct logically and reasonably points.* * * " (Emphasis supplied.)Washington v. State, (1971)257 Ind. 40, 271 N.E.2d 888, at 889--890.

See also, Arnett v. State, (1973) Ind.App., 291 N.E.2d 376;McIntosh v. State, (1970)254 Ind. 484, 260 N.E.2d 775;Peachee v. State, (1939)216 Ind. 42, 22 N.E.2d 979;White v. State, (1893)136 Ind. 308, 36 N.E. 274;Stearns v. State, (1956)235 Ind. 391, 134 N.E.2d 148.

Our courts have understandably been reluctant to find a basis for reasonably inferring intent to rape if the alleged victim is over the age of consent (as Karen was), and the conduct of an accused points only to urgent sexual solicitation designed to obtain voluntary consent unaccompanied by threats, demonstration of hostility, or other forms of duress.

See, White v. State, supra;Hollister v. State, (1901)156 Ind. 255, 59 N.E. 847;Rahke v. State, (1907)168 Ind. 615, 81 N.E. 584.

However, in each of these cases, the court has recognized justification for such an inference if hostility or duress were injected into the factual setting.Duress or fear of physical violence does form the basis for a rational inference of intent to rape:

'An acquiescence obtained by duress or fear of personal violence will avail nothing; the law regarding such submission as no consent...