Johnson v. State, No. 671S187

• Docket Nº: No. 671S187
• Citation: 277 N.E.2d 791, 257 Ind. 634
• Case Date: January 28, 1972
• Court: Supreme Court of Indiana

Page 791

277 N.E.2d 791 257 Ind. 634 Stanley Leroy JOHNSON, Appellant,
v.
STATE of Indiana, Appellee. No. 671S187. Supreme Court of Indiana. Jan. 28, 1972.

[257 Ind. 635]

Page 792

John R. Brant, II, Public Defender, Richmond, for appellant; Harlan, Schussler & Keller, Richmond, of counsel.

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

[257 Ind. 636] HUNTER, Judge.

This is an appeal by Stanley Leroy Johnson, appellant (defendant below), from a conviction for Assault and Battery with Intent to Gratify Sexual Desires, pursuant to IC 1971, 35--1--54--4 (Ind.Ann.Stat. § 10--403 (1971 Supp.)), which reads in part as follows:

'Whoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery . . . (W)henever in the commission of the offense any person removes, tears, unbuttons, unfastens, or attempts to remove, tear, unbutton or unfasten any clothing of any child who has attained his or her twelfth (12) birthday but has not attained his or her seventeenth (17) birthday, or fondles or caresses the body or any part thereof of such child with the intent to gratify sexual desires of appetites of the offending person or, under circumstances which frighten, excite, or tend to frighten or excite such child, the punishment shall be imprisonment in the Indiana state prison for a period of time of not less than one (1) year nor more than five (5) years . . .'

Appellant was charged by affidavit to which he pleaded not guilty and trial by jury commenced on January 11, 1971. The jury returned a verdict of guilty and on January 21, 1971, appellant was sentenced to the Indiana Reformatory for not less than one (1) nor more than five (5) years. A motion to correct errors was filed which was overruled and this appeal followed.

Appellant asserts two main contentions of error. First, he claims the extra-judicial pretrial identifications of appellant were so unnecessarily suggestive and conducive to irreparable misidentification that appellant was denied due process of law. In turn he claims these pretrial identifications tainted the in-court identification,

Page 793

contending the latter had no independent source. Secondly, appellant contends the State did not sustain its burden of proving that it was appellant who perpetrated the assault.

The facts in this case are generally as follows. On the evening of September 5, 1970, in Richmond, Indiana, Darla Rosier, a twelve (12) year old girl, was engaged to babysit [257 Ind. 637] for the children of Evelyn Soper. Evelyn Soper was living with appellant's mother and sister whose home was located about a block and a half fromt he Rosier home. Evelyn Soper and appellant were not married but were acquainted to the extent that Evelyn's children called the appellant 'Daddy.'

Darla put the children to bed around 10:00 P.M. and lay down on the bed with two of the little girls. At that time a lamp above the bed and a light in the living room were on. The reason for employing Darla that evening was the Evelyn Soper and appellant's mother and sister were seeking to locate appellant who was A.W.O.L. from the Marine Corps at the time. They located him in a bar in Eaton, Ohio, where he had been drinking beer much of the day, and his sister went in and talked with appellant for a few minutes. He then departed in his car heading west. After driving around a bit in Eaton, Evelyn and appellant's mother and sister headed back toward Richmond at a slow speed. They were delayed twice on their return. Once they doubled back a distance to check on a parked car which they thought might be the appellant's, and then they stopped at a service station for five to ten minutes.

Shortly before the women arrived home, Darla had been awakened when she found a man lying on her, kissing her, and attempting to pull up her blouse and pull down her pants. Darla screamed for Gary, one of the boys sleeping in the next room. The attacker then struck Darla and ran from the room. The bedroom light had been turned off so that Darla had been unable to get a good look at him while he was on top of her but as he went through the door into the light of the living room she was able to get a good look at the side of his face and noted that he had blond hair. As the attacker dashed through the lighted living room, Gary, who had come out of his bedroom, called out 'Daddy.'

Two boys, one of whom was Darla's step-brother, had been in a nearby yard and had seen appellant's car go by at approximately[257 Ind. 638] the time of the assault. They thought it had stopped close to the home where Darla was baby-sitting. A few minutes later the car came back down the street with its headlights off and as it came under a street light the step-brother could see that appellant was drivig.

Darla's parents arrived after being summoned by one of the boys and within a few minutes the three women arrived as well. Evelyn Soper exclaimed that if it was appellant who did it she would kill him. Darla was asked if appellant had been her attacker and she said that she didn't think so because she had remembered appellant as having darker hair....