Moss v. State

• Decision Date: 19 April 1982
• Docket Number: No. 4-1081A142,4-1081A142
• Citation: 433 N.E.2d 852
• Parties: Roy L. MOSS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 852

433 N.E.2d 852

Roy L. MOSS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 4-1081A142.

Court of Appeals of Indiana, Fourth District.

April 19, 1982.

John B. Wilson, Jr., Nashville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CONOVER, Judge.

Roy L. Moss appeals his conviction by an Owen Circuit Court jury for Intimidation. Ind.Code 35-45-2-1. He was sentenced to two years probation, 30 days in the Owen County Jail and a fine of $500 plus court costs. Moss contends the evidence was insufficient to convict him, that irrelevant and prejudicial evidence was admitted and that new, exculpatory evidence has been discovered since the trial.

We affirm the conviction.

I. ISSUES

The following specific issues have been presented for our review:

1) Was the evidence sufficient to convict Moss of violating Ind.Code 35-45-2-1, which reads:

"Intimidation.-(a) A person who communicates a threat to another person, with the intent that the other person engage in conduct against his will, commits intimidation, a class A misdemeanor. However, the offense is a class D felony if the threat is to commit a forcible felony.

(b) 'Threat' means an expression of intention to:

(1) unlawfully injure the person threatened or another person or damage property;

(2) Unlawfully subject a person to physical confinement or restraint;

(3) Commit a crime;

(4) Unlawfully withhold official action, or cause such withholding;

(5) Unlawfully withhold testimony or information with respect to another person's legal claim or defense, except for a reasonable claim for witness fees or expenses;

(6) Expose the person threatened to hatred, contempt, disgrace, or ridicule; or

(7) Falsely harm the credit or business reputation of the person threatened."

2) Did the trial court commit reversible error when it allowed evidence Moss was once accused of raping one or more young women?

3) Did the trial court err by not granting Moss another trial based on newly discovered evidence?

II. SUFFICIENCY OF EVIDENCE

In determining the question of sufficiency of evidence we do not weigh the evidence nor resolve questions of credibility but look only to the evidence and reasonable inferences therefrom which support the verdict. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable jury could infer the defendant was guilty beyond a reasonable doubt. Neice v. State, (1981) Ind., 421 N.E.2d 1109, 1111.

The evidence in a light most favorable to the State is as follows:

On January 6, 1980, Kathleen Soares was returning home alone from Sunday service at her church. She stopped her car alongside the road near the top of a hill overlooking her mobile home in rural Owen County. She intended to leave the car parked there, as she often did in bad weather, and walk the remaining distance.

Before she left her car, a neighbor, Roy Moss, approached her. Moss had previously made unwanted sexual advances toward her and on one occasion told her he could rape her and "nobody would do anything about it in town." She was afraid of Moss and had warned him to stay away from her or she would shoot him.

Mrs. Soares was 45, divorced and lived alone. She had moved to Owen County two years earlier from Indianapolis, where she had lived since childhood. Moss, 50, was a former truck driver who lived with his wife on the proceeds of a veteran's disability pension.

When Mrs. Soares saw Moss approach her car, she locked the doors. "Then, he came up and started beating on my door and said he was going to rape me and if I would go in town and tell anybody anything, that he would come in that trailer and kill me." The confrontation continued for several minutes and then he left. Mrs. Soares drove directly to the sheriff's office and reported the incident. The prosecutor prepared the following information:

"Kathleen Mae Soares, being duly sworn, upon oath says that on or about the 6th of January, 1980, at the County of Owen and in the State of Indiana, one ROY L. MOSS did communicate to Kathleen Mae Soares, an expression of intention to commit a forcible felony, to-wit: threatening to rape and kill said Kathleen Mae Soares, with intent that said Kathleen Mae Soares engage in conduct against her will, to-wit: to permit ROY L. MOSS to have a relationship with Kathleen Mae Soares. All of which is contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana, I.C. § 35-45-2-1, Penalty Class D Felony."

Moss contends the prosecution presented no evidence showing he intended to force Mrs. Soares to have a "relationship" with him. He argues the mere proof of a threat of rape and murder was insufficient to prove any intent to force an unwilling "relationship." Without doubt, the only evidence by the State of Moss' intent was Mrs. Soares's testimony. He told her he was going to rape her and he would murder her if she told anyone. To be forced to suffer rape in silence is an exploitive sexual relationship of the most demeaning character. Not only is there a physical and emotional violation of a human being, deep psychological pain is inflicted that festers due to the continuation of fear and injustice. The choice between silent submission or death is a kind of blackmail the Intimidation statute properly makes a crime.

Obviously the jury chose to believe Mrs. Soares' testimony. That testimony was sufficient to show Moss used the threat of forcible felonies with the intention of forcing her to act against her will.

III. ADMISSIBLE EVIDENCE

Moss next contends the trial court erred when it allowed his wife on cross-examination to testify she had inquired at the prosecutor's office about a report accusing her husband of raping several young women. The defense objected on grounds the testimony was irrelevant, highly prejudicial and hearsay. The trial court overruled the objection and admonished the jury to consider the evidence only on the question of the witness's credibility.

Essentially, the line of questioning was as follows: On direct examination, Mrs. Moss testified her husband had been threatened by Mrs. Soares. On cross-examination, the prosecutor asked if anyone else had threatened her husband. Notwithstanding an objection by the defense attorney that the question was irrelevant, the witness replied: "Not to my knowledge." The defense did not ask that her answer be stricken or that the jury be admonished to disregard it.

The prosecution then began a line of questioning to show Mrs. Moss did have knowledge of other threats.

"Q. ... Did you or did you not on September 20th, 1979, report to my office that one Gene Fuller had threatened to blow your husband's head off?

"A. Yes.

"Q. Why was that threat made, what'd you tell us about that?"

The defense again objected and the court admonished the jury:

"The objection well (sic) be overruled and the jury is instructed that the Court's ruling is based upon the right of the Prosecuting Attorney to test the credibility of this witness and you are instructed to receive her testimony solely for the purpose of the evaluating of her testimony-I mean, the credibility of her testimony and for no other purpose at this time."

Mrs. Moss answered:

"A. That I had heard there was a report filed by Gene Fuller; that Gene had threatened to shoot Roy and it all went back to-he owed us money. He'd blowed up a car. We fed his children, we kept them, we bought a TV from them when they were layed off; he didn't have money for food, we took the TV back to the family and told them to pay us the money when they could. We called and asked for the money and one of the older children wanted us to buy her a car, which we refused to do. I heard a rumor...