Howell v. State
| Decision Date | 01 December 1980 |
| Docket Number | No. 380S71,380S71 |
| Citation | 274 Ind. 490,413 N.E.2d 225 |
| Parties | George HOWELL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
William G. Smock, Terre Haute, for appellant.
Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst.Atty.Gen., Indianapolis, for appellee.
The defendant, George Howell, was convicted by a jury of child molesting, a class B felony, Ind.Code § 35-42-4-3(a) (Burns 1979 Repl.), and criminal confinement, a class C felony, Ind.Code § 35-42-3-3(2) (Burns 1979 Repl.) (amended 1979). He was sentenced to twenty years for the class B felony and five years for the class C felony, the sentences to run concurrently. He now raises three issues in this direct appeal:
1. Whether the trial court erred in permitting the state to elicit testimony from witnesses concerning the fact that defendant had been accused of child molesting in the past;
2. Whether the trial court erred in allowing two witnesses for the state to testify that defendant told them he "thought" he had committed the crimes in question; and
3. Whether the trial court erred in giving certain instructions.
The evidence most favorable to the state reveals that on the evening of August 17, 1978, the eight year old victim and her parents attended a CB club meeting in Terre Haute. The defendant and his family also attended. After the meeting, the defendant asked the victim's father if the victim could stay all night with defendant's daughter. It was agreed, and the victim went home with defendant and his family. Later that night, defendant told the victim that they had to go to her house and pick up some clothes. The two of them left in defendant's truck but instead of going to the victim's house, they went to a liquor store where defendant purchased some beer. They then proceeded down some back roads along the Wabash River and stopped next to an isolated field.
Defendant removed his clothes and those of the victim. They went into the field and lay on the ground where defendant placed his penis between the victim's legs and started "wiggling." They returned to the cab of the truck and defendant fell asleep. Out of fear, the victim remained in the truck with him. When defendant awoke the next morning, he forced the victim to perform oral sex. Afterwards, they drove back to defendant's house. Defendant told the victim not to tell anyone what had happened or else he would kill her. Eventually, the victim told her mother the truth, and defendant was arrested.
Defendant first contends that the trial court erred in allowing two police officers to testify on direct examination during the state's case in chief that in the course of their investigation, defendant informed them that on several previous occasions he had been "accused" of child molesting in other communities and had been asked to leave those areas which he did. Although evidence of separate and distinct crimes is generally inadmissible as proof of a defendant's guilt, such evidence is admissible for the purpose of showing intent, motive, purpose, identification, or common scheme or plan. Henderson v. State, (1980) --- Ind. ---, 403 N.E.2d 1088; O'Conner v. State, (1980 ) --- Ind. ---, 399 N.E.2d 364. It is also competent to establish a depraved sexual instinct when sodomy or incest is charged. Daniels v. State, (1980) --- Ind. ---, 408 N.E.2d 1244; Cobbs v. State, (1975) 264 Ind. 60, 338 N.E.2d 632. See also Grey v. State, (1980) --- Ind. ---, 404 N.E.2d 1348 (). The state maintains that the testimony was admissible under the intent or depraved sexual instinct exceptions. We disagree.
The state has overlooked a threshold problem involved in the introduction of these statements. In permitting the state to use evidence of separate criminal acts on the part of the accused, we have not required proof of a conviction. See, e. g., Worthington v. State, (1980) --- Ind. ---, 405 N.E.2d 913; Porter v. State, (1979) --- Ind. ---, 397 N.E.2d 269. However, it goes without saying that there must be evidence of probative value showing that the defendant actually engaged in those acts.
Here, there was only evidence of vague accusations. Defendant never admitted committing these other acts nor did the state introduce additional evidence proving that he had indeed committed them. We are not aware of any other basis for the admission of this testimony. Even assuming that the testimony could be considered as evidence of defendant's community reputation for bad character, it would not be admissible as defendant had not tendered any evidence of his good character concerning this trait. Bond v. State, (1980) --- Ind. ---, 403 N.E.2d 812; Robertson v. State, (1974) 262 Ind. 562, 319 N.E.2d 833. Nor was the testimony being used for impeachment purposes. The evidence was irrelevant and, therefore, inadmissible.
However, we are constrained to hold, under the circumstances of this case, that the error was harmless inasmuch as the evidence supporting the guilty finding was not only substantial, it was overwhelming. Stevens v. State, (1976) 265 Ind. 396, 354 N.E.2d 727; Moore v. State, (1972) 258 Ind. 200, 280 N.E.2d 57. Besides the victim's testimony of the assault, two police officers testified that defendant admitted to them that he thought he had committed the crime and informed them that when he drank, he had abnormal sexual feelings towards smaller children. He told them that he could show them the area where he had taken the victim. He proceeded to do so without hesitation and said he was positive of the location. He even identified some tire tracks as having been made by his truck. He also pointed out to the police the spot in the field where he had led the victim. This location was the same spot to which the victim directed her parents several days after the attack. She also identified the area from several photographs during her testimony in court.
While at the scene of the crime, defendant appeared "sorrowful" and told police that he needed professional help and wanted to be taken off the streets. The victim's parents testified that when the victim returned home after the assault, she was crying and acted scared, was so hoarse that she could hardly talk and had chigger bites all over her body. A police officer who saw the victim that same day made similar observations and stated...
To continue reading
Request your trial
-
Davis v. State
...where a determination of guilt is supported by overwhelming independent evidence. Staton, 524 N.E.2d 6, 9; Howell v. State (1981), 274 Ind. 490, 493, 413 N.E.2d 225, 226; Stevens v. State (1976), 265 Ind. 396, 408, 354 N.E.2d 727, As outlined in our discussion in Issue 1, the other evidence......
-
Camm v. State
...is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor."); Howell v. State, 274 Ind. 490, 413 N.E.2d 225, 226 (1980) ("[I]t goes without saying that there must be evidence of probative value showing that the defendant actually engaged......
-
Lehiy v. State
... ... Therefore we hold the evidence of prior criminal sexual conduct was not admissible to show depraved sexual instinct in a case where only rape was being prosecuted ... The State argues that even if the evidence was erroneously admitted, the error was harmless, relying on Howell v. State (1980), 274 Ind. 490, 413 N.E.2d 225. However, the present case is not comparable to Howell. In Howell the evidence admitted was an admission by the defendant to police as to prior accusations against him of conduct similar to what was charged. Thus there was no evidence presented by ... ...
-
Hurst v. State
...guilt presented at trial, we cannot say that error in the admission of this evidence was anything but harmless. See Howell v. State, (1980) Ind., 413 N.E.2d 225; Bricker v. State, (1976) 264 Ind. 186, 341 N.E.2d Number of Offenses Hurst's most compelling argument (which also includes his ch......