Kimmel v. State

• Decision Date: 07 April 1981
• Docket Number: No. 879S213,879S213
• Citation: 275 Ind. 575,418 N.E.2d 1152
• Parties: David George KIMMEL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1152

418 N.E.2d 1152

275 Ind. 575

David George KIMMEL, Appellant, v.STATE of Indiana, Appellee.

No. 879S213.

Supreme Court of Indiana.

April 7, 1981.

John D. Clouse, Michael C. Keating, Evansville, James Lowenthal, Coleman, Lowenthal & Lofton, Bloomington, for appellant.

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

PIVARNIK, Justice.

After a trial by jury the appellant was sentenced on February 20, 1979, to imprisonment for an indeterminate period of not less than ten (10) nor more than twenty (20) years for burglary, and to imprisonment for fifteen (15) years for the offense of sodomy while armed with a dangerous weapon.He appeals.

Appellant raises five issues for our review.These concern the admission of evidence, the overruling of his Motion to Permit the Production of Evidence of Jury Impropriety, the denial of his Motion for Serology Examination, the trial court's refusal to admit polygraph test results, and the sufficiency of the evidence.

On the evening of June 12, 1977, the victim and her roommate were in their residence at the Ardmore Apartments in Bloomington, Indiana.Both went upstairs to their bedrooms around 10:00 p. m. K. G. went to her bedroom, closed the door, turned out the light and went to bed.The victim, D. C., went to her room, read for a while, and then turned out the light and went to sleep.She awoke around 2:00 a. m. on the morning of June 13, 1977, with someone's hand over her mouth and nose.She struggled briefly.She was told repeatedly not to scream.She said that she would not scream and the person took his hand away.He leaned over her, said he was lonely and wanted to talk, and sat down on the bed.He told her his name was John and that he had come from the train yard.He told her that if she wouldn't scream he would take the knife away from her neck.After taking the knife away, he continued to hold it while he talked.D. C. described this knife as a Bowie knife about ten inches long.The man smoked a cigarette and extinguished it in the wastebasket.He began touching her and she asked him to stop.He put the knife against her neck and told her to be quiet.He removed her gown and asked her if she had any baby oil.She said she did not, but that she had some lotion on the dresser.He put lotion on her, made her turn over and get on her knees.He had anal intercourse with her, zipped his pants, told her not to tell anyone, and left.She heard him stand outside her room for a while, and then heard him going down the stairs.She heard the front door open and the chain catch.She heard him take off the chain and open the door.She got up, locked the door and went to her roommate's room.She told her roommate that she had been raped.They checked the apartment and called the police.They went downstairs and noticed that the kitchen window was open.

Three police officers arrived and searched the area.A gumball and a Vantage regular cigarette butt were found on the sidewalk.Fingerprints were lifted from the inside door knob of the living room door.A Vantage regular cigarette butt was recovered from the wastebasket in D. C.'s room.

The victim gave a description of her assailant to police and she was taken to the Bloomington Hospital.Dr. Bill Adamson examined her and determined that she had scratches or cuts on her face, neck, and rectal area.It was his opinion that she had had anal intercourse.

The victim later gave a statement and helped to construct a composite picture of her attacker.In August, 1977, she viewed a photographic lineup of eight individuals and picked one out of that lineup.Two or three weeks later she viewed a live lineup with this person in it and failed to pick him out.This person was not the appellant.In January of 1978, she viewed a second live lineup in which the individuals spoke certain phrases.At that lineup she picked out the appellant.At trial she testified that this person's voice, hair and facial features were the same as her attacker's although she admitted that she was not absolutely positive about the identification.

I.

Appellant first claims that the trial court erred in admitting evidence that he had committed another crime which was unrelated to the one for which he was being tried.Christean Eznor was permitted to testify, and she related that on December 23, 1977, a man rang the doorbell of her apartment at approximately 2:00 a. m. He asked if Lisa Cunningham lived there.She responded, "No" and the man said, "Well, she's supposed to live in Beau Trace Apartments."Those apartments were located on the other side of Bloomington.Eznor said she was sorry but she did not know Lisa Cunningham and had never heard of Beau Trace Apartments.She shut the door and locked it.She was frightened and looked in the Bloomington directory and the I. U. student directory but could find no listing for a Lisa Cunningham.She went upstairs and then returned downstairs to find the front door open as far as possible with the chain attached.She walked into the dining room and saw a man peering in her window.He ducked beneath the window.She pounded on the window and he stood up.She then called the police.

Two officers arrived approximately five minutes later.Christean was showing them the window where she had seen the man when officer Pickell saw a person meeting her description walk across Eighth Street.The officers stopped him and on frisking him found a steak knife in his pocket.This knife was approximately seven or eight inches long.This individual was the appellant, Kimmel.He told the officers that he had used the knife to clean rabbits.Kimmel was charged with Public Intoxication and Carrying a Concealed Weapon.He pleaded guilty to Public Intoxication.The charges of Carrying a Concealed Weapon were dismissed.Appellant argues that this incident was not sufficiently similar to the incident of June 13, 1977, to warrant its admission.

The general rule in Indiana concerning the admission of evidence of separate, independent crimes or acts committed by an accused is that such evidence is inadmissible.There are exceptions to this rule recognized by our courts.It is well established that evidence of other crimes may be used to prove intent, purpose, motive, identity or a common scheme or plan.Porter v. State, (1979) Ind., 397 N.E.2d 269;Willis v. State, (1978) Ind., 374 N.E.2d 520, 522;Pierce v. State, (1977)267 Ind. 240, 248, 369 N.E.2d 617, 621.

The incident which occurred on December 23, 1977, which was the subject of Christean Eznor's testimony occurred at 2:00 a. m. in Bloomington.David Kimmel was arrested after he had gone to an apartment and asked for a woman who did not live there.Ms. Eznor had gone upstairs and returned to find the front door open as far as the chain would permit and noticed someone ducking beneath her window.When apprehended, Kimmel was found to have a seven or eight inch knife in his pocket and was intoxicated.He was smoking Vantage cigarettes.

The incident which is the basis for this appeal also occurred in Bloomington at 2:00 a. m. The victim also lived in an apartment.The window was broken in, and Kimmel's fingerprint was found on the living room door.This incident involved burglary, and sodomy while armed with a dangerous weapon, a knife, by an individual who had been drinking.Vantage cigarettes were found outside, and the attacker had extinguished one in the wastebasket.

The State argues that this case is so similar to that of Porter v. State, (1979) Ind., 397 N.E.2d 269, that the evidence of the other crime should be admitted.The argument is also made that here, as in Porter, the only discrepancies are due to the fact that the defendant's efforts were effectively thwarted by the victim.In Porter, the victim was awakened when she heard someone in her apartment.She observed a black man in her room brandishing a knife and ordering her not to move.He removed his trousers, removed the victim's panties, penetrated her and then cut her with the knife several times and threw a plant stand at her.She ran to a window, opened it and screamed for help, whereupon her attacker left.The other incident in Porter, testified to by a State's witness which was allowed into evidence was that of another victim, who knew the defendant personally and lived near the defendant's residence.This victim testified that she was awakened by someone standing in her bedroom doorway.She jumped out of bed and asked who was there.The defendant grabbed her and told her to be quiet or she would get hurt.She screamed and fought her assailant.He finally left, escaping the same way he had entered, by putting a ladder to the window of her brother's bedroom next to hers, and breaking a window.

In Porter, supra, it was apparent that no sex was involved because of the interruption and that no knife was used.Both victims were attacked in their upstairs bedrooms during the early morning hours.Both were threatened to be quiet and to cooperate or they would be harmed.The second attack occurred near the first, both geographically and in time.These facts were considered to be sufficiently similar to support an inference that the appellant was the perpetrator of both attacks and this Court found the testimony of sufficient probative value to make it competent evidence.

Here, it is also apparent that Kimmel was interrupted by Christean Eznor's calling the police.These incidents both occurred around 2:00 a. m., in the city of Bloomington.Both women lived in apartment complexes.In the first incident, entry was made through a window, and Kimmel's fingerprint was found on the inside door knob.In the second incident, the door was opened as far as possible until stopped by the chain and Kimmel was observed under the window.Vantage cigarette butts were left at the scene of the first incident and Appellant Kimmel was smoking Vantage cigarettes when he was...