Johnson v. State, 180S21

Decision Date10 July 1980
Docket NumberNo. 180S21,180S21
PartiesJoseph W. JOHNSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Harriette Bailey Conn, Public Defender, Robert H. Hendren, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The petitioner is before this Court appealing from the denial of his petition for post-conviction relief. He was found guilty of kidnapping and assault and battery with intent to gratify sexual desires at a bench trial in April, 1973, and was sentenced to life imprisonment and two to twenty-one years respectively. His direct appeal to this Court resulted in an affirmance. Johnson v. State, (1974) 262 Ind. 516, 319 N.E.2d 126. He now raises the issue of the sufficiency of the evidence on the element of force necessary to sustain the charges.

The complaining witness was a young girl who was only eight years old at the time of the incident. She testified that one day while she was playing outside petitioner told her to come with him and when she refused he "drug" her with him. He told her he had a knife and that he would kill her if she cried. Then he picked her up and carried her to a small shack in a weeded area under a railroad embankment where he started to sexually abuse her. A witness saw petitioner carrying the victim into the weeded area and became suspicious. He yelled for petitioner to come out and had his wife call the police.

At the post-conviction relief hearing, defendant put two relatives and a friend on the stand. These three witnesses all testified that they had seen the victim's mother making signs to her during the trial apparently prompting several of her responses during her testimony. One witness stated that the victim's mother was shaking her head "yes" or "no" in communication with her daughter. The witnesses stated that they had told petitioner's attorney about these apparent signals but he didn't do anything about it.

It is petitioner's contention that, considering the age of the victim, the testimony concerning her mother's signals completely destroyed the victim's credibility and that, therefore, there was insufficient evidence to support the element of force as a part of the crimes. We are first constrained to note that in post-conviction proceedings the burden of proof rests with the petitioner to establish his grounds to relief by a preponderance of the evidence. Ind.R.P.C. 1 § 5; Laird v. State, (1979) Ind., 385 N.E.2d 452. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of...

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10 cases
  • Roberts v. State
    • United States
    • Indiana Appellate Court
    • April 27, 1981
    ...the evidence is without conflict and leads unerringly to a result other than the one reached by the trial court judge. Johnson v. State (1980), Ind., 406 N.E.2d 1170; Fuller v. State (1979), Ind., 391 N.E.2d Failure to Instruct Roberts first alleges fundamental error occurred since the tria......
  • Henson v. State
    • United States
    • Indiana Supreme Court
    • June 17, 1982
    ...be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Johnson v. State, (1980) Ind., 406 N.E.2d 1170; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d Regarding competency of counsel, it has been more than frequently sta......
  • Talley v. State
    • United States
    • Indiana Appellate Court
    • November 30, 1982
    ...the evidence is not conflicting and leads unerringly to a contrary result. Henson v. State (1982), Ind., 436 N.E.2d 79; Johnson v. State (1980), Ind., 406 N.E.2d 1170. I. Adequate Legal Talley contends that his attorney provided inadequate representation both at trial and on appeal. The sta......
  • Lindley v. State
    • United States
    • Indiana Supreme Court
    • October 7, 1981
    ...be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Johnson v. State, (1980) Ind., 406 N.E.2d 1170; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984; Davis v. State, (1975) 263 Ind. 327, 330 N.E.2d 738. It is clear......
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