Johnson v. State, No. 681S173

Docket NºNo. 681S173
Citation432 N.E.2d 1358
Case DateMarch 26, 1982
CourtSupreme Court of Indiana

Page 1358

432 N.E.2d 1358
Gary Lee JOHNSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 681S173.
Supreme Court of Indiana.
March 26, 1982.

Page 1359

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On January 26, 1981, Gary Lee Johnson was found guilty of Confinement, a Class B Felony; Rape, a Class A Felony; and Criminal Deviate Conduct, a Class A Felony. He was also found to be an Habitual Offender. He was sentenced to imprisonment for twenty (20) years on Count I, Confinement; fifty (50) years on Count II, Rape; fifty (50) years on Count III, Criminal Deviate Conduct, and thirty (30) years for being an habitual criminal. All sentences are to run consecutively. Johnson appeals.

Appellant Johnson alleges that the court erred in overruling his Motion for Mistrial and in denying his motion for continuance. He also claims that the verdicts were based on insufficient evidence and that the sentencing is in error.

The ten-year-old victim, C. C., lived with her mother, brothers and sisters, and her mother's boyfriend. On August 25, 1980, they had gone to a drive-in. After coming home at 1:00 a. m., August 26, C. C., went to bed alone in her brother's room. She was awakened by a white man wearing green pants. He had her mother's boyfriend's watch, five dollars and a knife in his hand. He put the knife to her throat and told her to get up. They walked out the front door of the apartment to the rear of the building and went into the basement. C. C., observed that the sun was coming up and that they went downstairs to the basement which was dark. The basement room was in back of and on the other side of the building from where she lived. There was a mattress in the room. She was told to take off her clothes and to lie on the mattress. The man took of his pants and laid on the mattress, placing the knife beside the mattress. He then put his penis in her vagina and in her anus. She was then told to put her clothes on and taken to another room in the basement after the man dressed

Page 1360

and picked up the knife. He told her that his name was Ray and said, "What if I'm Joe's son?" C. C., testified that she hurt and bled as she got dressed. She then laid on another mattress in another room of the basement. The man told her that if she told anyone what had happened he was going to kill all of her family. She guessed that they were in the basement for about an hour and a half. After she left the second mattress, she went back to her home. She saw the man get in a dark green car and take off down the alley. When C. C., went back to her apartment about 7:00 o'clock she awakened her mother and asked her mother if she could bathe. She was still bleeding and told her mother's boyfriend that she had cut her foot. She admitted that she did not tell her mother immediately what had happened as she was scared. She went to the hospital that night and stayed there for ten (10) days. While she was in the hospital she told her mother what had happened and also told Detective Deal.

Detective Deal showed C. C., approximately twelve (12) photographs. C. C., identified State's Exhibit # 1 as being the photograph she picked out, and stated that this was a photograph of the man who had put his penis in her vagina, "butt", and mouth. She had seen him on one or two previous occasions with a woman in a blue Cadillac behind her apartment. She also identified the defendant in court as being her attacker.

I.

Appellant first claims that the court erred in overruling his motion for mistrial. A written Motion in Limine was granted by the trial court which simply requested that "the state and any of their witnesses be instructed not to mention or refer in any way to any other alleged crime of the defendant, Gary Lee Johnson...." The following exchange took place on direct examination between the prosecutor and the victim:

"Q. Did he tell you anything else about anything else he had done?

A. Killed another girl."

Record at 167.

Defense counsel objected and moved for mistrial. The court sustained the objection and admonished the jury to disregard the statement. The motion for mistrial was denied. Appellant contends that allowing the trial to continue denied him his right to a fair trial.

Johnson's objection came after the question had already been asked and answered. The court promptly admonished the jury. As a general rule, a party must make his objection to a question before the answer is given in order to preserve the issue for appeal. See Tinnin v. State, (1981) Ind., 416 N.E.2d 116, 118. Here it appears that the question was not objectionable; rather the answer was objectionable. In such circumstances, an exception is recognized. See State v. Sovich, (1969) 253 Ind. 224, 252 N.E.2d 582; M. Seidman, The Law of Evidence in Indiana, p. 50 (1977). Because the objectionable answer could not have been anticipated, the requirement of an objection prior to an answer being given is not imposed.

However, here, the objection was made and sustained and a prompt admonition was given by the trial...

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29 practice notes
  • State v. Edgman, No. 3-680A171
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1983
    ...not have been anticipated (i.e. where an objectionable answer is given to an unobjectionable question) Johnson v. State, (1982) Ind., 432 N.E.2d 1358, here we feel it was apparent that an unfavorable response could have been anticipated. 11 Our examination of the record here reveals the Sta......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...statute does not set forth an offense in and of itself. See, Yager v. State, (1982) Ind., 437 N.E.2d 454; Johnson v. State, (1982) Ind., 432 N.E.2d 1358; Williams v. State, (1982) Ind., 431 N.E.2d 793; Hall, supra. If the habitual offender statute is read to define a separate offense, its a......
  • Golden v. State, No. 19A01-8911-PC-474
    • United States
    • Indiana Court of Appeals of Indiana
    • May 7, 1990
    ...N.E.2d 769; Wagner v. State (1984), Ind., 471 N.E.2d 669; Wilson v. State (1984), Ind., 465 N.E.2d 717; Johnson v. State (1984), Ind., 432 N.E.2d 1358. Accord, Baker v. Duckworth (7th Cir.1985), 752 F.2d 302, cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985) (interpreting I......
  • Crafton v. State, No. 2-880A269
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1983
    ...to the offending question before the answer is given in order to preserve the issue for appeal. See Johnson v. State (1982) Ind., 432 N.E.2d 1358, 1360; State v. Edgman, supra, 447 N.E.2d Moreover, counsel's objection came only after Adams had already testified that "[Smith] said that the n......
  • Request a trial to view additional results
29 cases
  • State v. Edgman, No. 3-680A171
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1983
    ...not have been anticipated (i.e. where an objectionable answer is given to an unobjectionable question) Johnson v. State, (1982) Ind., 432 N.E.2d 1358, here we feel it was apparent that an unfavorable response could have been anticipated. 11 Our examination of the record here reveals the Sta......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...statute does not set forth an offense in and of itself. See, Yager v. State, (1982) Ind., 437 N.E.2d 454; Johnson v. State, (1982) Ind., 432 N.E.2d 1358; Williams v. State, (1982) Ind., 431 N.E.2d 793; Hall, supra. If the habitual offender statute is read to define a separate offense, its a......
  • Golden v. State, No. 19A01-8911-PC-474
    • United States
    • Indiana Court of Appeals of Indiana
    • May 7, 1990
    ...N.E.2d 769; Wagner v. State (1984), Ind., 471 N.E.2d 669; Wilson v. State (1984), Ind., 465 N.E.2d 717; Johnson v. State (1984), Ind., 432 N.E.2d 1358. Accord, Baker v. Duckworth (7th Cir.1985), 752 F.2d 302, cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985) (interpreting I......
  • Crafton v. State, No. 2-880A269
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1983
    ...to the offending question before the answer is given in order to preserve the issue for appeal. See Johnson v. State (1982) Ind., 432 N.E.2d 1358, 1360; State v. Edgman, supra, 447 N.E.2d Moreover, counsel's objection came only after Adams had already testified that "[Smith] said that the n......
  • Request a trial to view additional results
1 books & journal articles
  • Cruel and Unusual Non-Capital Punishments
    • United States
    • American Criminal Law Review Nbr. 58-4, October 2021
    • October 1, 2021
    ...(Ind. 2000); Eubank v. State, 456 N.E.2d 1012, 1017–18 (Ind. 1983); Kelly v. State, 452 N.E.2d 907, 912 (Ind. 1983); Johnson v. State, 432 N.E.2d 1358, 1362 (Ind. 1982); Marts v. State, 432 N.E.2d 18, 22 (Ind. 1982); Stuck v. State, 421 N.E.2d 622, 625 (Ind. 1981); Fryback v. State, 400 N.E......

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