Johnson v. State

• Decision Date: 26 November 1974
• Docket Number: No. 1173S241,1173S241
• Parties: Joseph JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 126

319 N.E.2d 126

262 Ind. 516

Joseph JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 1173S241.

Supreme Court of Indiana.

Nov. 26, 1974.

Rehearing Denied Feb. 4, 1975.

Robert J. Fink, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Joseph Johnson, was indicted and convicted of Kidnapping, I.C.1971, 35--1--55--1, being Burns § 10--2901, and of Assault and Battery with Intent to Gratify Sexual Desires, I.C.1971, 35--1--54--4, being Burns § 10--403 (1974 Supp.). After waiver of jury trial, appellant was tried before Judge Harold Kohlmeyer in the Marion Criminal Court. He was sentenced to life imprisonment for Kidnapping and to two to twenty-one years for Assault and Battery with Intent to Gratify Sexual Desires. He has now perfected an appeal to this Court on the following grounds: (1) The trial court erred in overruling appellant's motion for psychiatric examination prior to pronouncement of judgment; (2) The trial court abused its discretion in not requiring the prosecution to produce appellant's clothes at trial; (3) The evidence was not sufficient to support the conviction for Kidnapping.

Melinda Newberry, age 8, testified that, on June 26, 1972, appellant picked her up and carried her across the street and along the railroad tracks about a city block away from home. She did not know him and refused to go with him. She struggled, but he 'drug' her. He had a knife which he took out of his pocket, and he told her he would kill her if she cried. He carried her into a small room under the railroad embankment, where he took off her pants and rubbed his penis against her.

David Mort testified that he was looking out his office window and saw appellant carry Melinda along the railroad tracks, put her down, leave for a moment, and then return and carry her along a pathway. Suspicious, Mort and his wife drove around the area. When he saw the two doors in the embankment, he went over to check them. Hearing noises behind one of them, he yelled for appellant to come out. Though it was dark inside, he could see appellant stand up. When appellant emerged, his fly was open, and his penis was exposed and erect. He denied that the girl was inside, but she began to cry and came out. As she stood up, her dress fell down. Appellant told Mort that he was her father. Mort's wife called the police.

Clifford Adams, an Indianapolis Police Officer, testified on cross-examination, that when he saw appellant the morning after his arrest, he was still wearing his street clothes. Adams did not remember seeing mud on appellant's trousers or shirt.

Appellant's first contention is that the evidence is insufficient to support the conviction for Kidnapping. The relevant statute reads:

'Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this state, or arrests or imprisons any person . . . unless it be in pursuance of the laws of this state or of the United States, is guilty of kidnapping. . . .' Burns § 10--2901, supra.

We believe that the evidence sustains a finding of forcibly carrying the child off from a place within the State.

Appellant's principal argument is that he employed no force. State's witness Mort did not testify that Melinda was struggling. He saw appellant put her down, go away a moment and then return. Melinda testified that she was less than a block from home. tAppellant introduced no evidence.

The use of force is not limited to occasions when the victim physically struggles to get away and attempts to escape at each moment. Clearly, a baby could sleep peacefully as the kidnapper carried him away. The evidence must support the victim's avowal of non-consent, but the reasonableness of his response must be judged individually, based on his strength, intelligence, and maturity and the character of his alleged kidnapper.

In this case, the eight-year-old child said 'no' when appellant asked her to come with him. He then, in her words, 'drug' her. She did not know him. He had a knife with him and threatened to kill her if she cried. When he carried her into the small room, she asked to be let down. Under strict cross-examination, Melinda testified that appellant took his knife out of his pocket and showed it to her. She testified that she struggled to get away, but could not run away because he was carrying her. She said that she had never been to the shack before. We believe that the judge could have found that there was adequate evidence of force against an eight-year-old child.

Appellant argues that kidnapping is not indicated when he carried the child only a city block away. In Cox v. State (1932), 203 Ind. 544, 177 N.E. 898, 181 N.E. 469, defendant had carried a child ninety feet before he put her down. The Court held that defendant had kidnapped the child within the terms of the statute. 'A place is any portion of space regarded as distinct from all other space.' We see no reason to limit the kidnapping statute to certain distances. It attempts to reach the crime of removing a person from a place where he should be, without his consent.

Appellant also presents the argument that there was no showing that he was not acting 'in pursuance of the laws of this state or of the United States.' In Lewis v. State (1969), 252 Ind. 454, 250 N.E.2d 358, the Court explained the meaning of that phrase:

'A close reading of the statute would indicate that such language has been inserted to protect a person who has the legal authority to forcibly carry off an individual, as for example with a parent and his child or a police officer and a suspected criminal. It would therefore not be necessary to show that the defendant was in fact breaking a law of this state as appellee seems to be arguing, but rather that the defendant was not in such a relationship to the victim as to afford him immunity under this statute.' 252 Ind. at 458, 250 N.E.2d at 360.

Here, since appellant was not Melinda's parent or an officer of the government, the court could reasonably infer that appellant had no relationship to her which would afford him immunity under the statute.

We consider next the trial court's ruling on appellant's motion for psychiatric examination after the verdict and prior to pronouncement of sentence. When appellant made the motion in 1973, a statute provided:

'When the defendant in a criminal cause appears for judgment, and the court, either from his own knowledge, or upon the suggestion of any person, has reasonable ground for believing the defendant to be insane, the question of his insanity shall be determined by a jury of twelve (12) qualified jurors . . ..' I.C.1971, 35--5--3--3, being Burns § 9--2217a.

The test of competence to stand trial is whether defendant has 'sufficient present ability to consult his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as a factual understanding of the proceedings against him.' Dusky v. United States, (1960), 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824; Tinsley v. State (1973), Ind., 298 N.E.2d 429, 433. If he does not understand, any criminal trial denies him due process. The trial court must hold a hearing on sanity if the matter before the court raises a bona...