Pieper v. State

• Decision Date: 03 January 1975
• Docket Number: No. 774S147,774S147
• Parties: Henry Carl PIEPER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 196

321 N.E.2d 196

262 Ind. 580

Henry Carl PIEPER, Appellant, v. STATE of Indiana, Appellee.

No. 774S147.

Supreme Court of Indiana.

Jan. 3, 1975.

Rehearing Denied Feb. 26, 1975.

Ronald V. Aungst, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Henry Carl Pieper, was charged with sodomy, I.C.1971, 35--1--89--1, being Burns § 10--4221, and kidnapping, I.C. 1971, 35--1--55--1, being Burns § 10--2901. He was found guilty of both charges after a trial by jury in the Lake Superior Court, Special Judge Nick Thiros presiding.

On December 13, 1973, the date set for sentencing, appellant's counsel filed a petition requesting the court to appoint three physicians to examine appellant and determine if he was a possible criminal sexual deviant. I.C.1971, 35--11--3.1--3, being Burns § 9--4003 (1974 Supp.). The court sentenced appellant to two to fourteen years for sodomy and to life imprisonment for kidnapping and ordered the State and the defense to submit briefs with respect to the criminal sexual deviancy petition. On December 20th, the court ordered the sodomy sentence expunged from the record so that the court might appoint physicians to examine appellant. However, the court retained the life sentence for kidnapping and ordered that the commencement of the execution of the life sentence be temporarily abated, pending determination of possible criminal sexual deviancy. Appellant took exception to the court's ruling that the petition for sexual deviancy did not apply to the kidnapping sentence. The court noted the exception and overruled it.

On January 18, 1974, the court, having examined the reports of the physicians and finding that neither the State nor the defense had further evidence to present, found appellant to be a probable criminal sexual deviant. The court sentenced him to be committed to the Department of Mental Health (hereinafter the Department) for confinement to a state institution for observation, evaluation and diagnosis, for a period not to exceed 120 days.

On February 8th, appellant filed a motion to correct errors. On May 3rd, the court denied that motion. On the same day, the court found appellant to be a criminal sexual deviant, based on the April 3rd report of the supervisor of the Norman Beatty Hospital. The court ordered that appellant be committed to the Department to be confined in an appropriate institution for treatment. The court further ordered that, insofar as possible and practical, appellant be confined in the maximum security division of any institution to which he was assigned and that a detainer, indicating his life sentence for kidnapping, accompany him and take precedence over any orders of the Department in regard to week-end passes, overnight stays, etc. Finally, the court ordered that when the Department determined that appellant had sufficiently recovered from the criminal sexual deviancy to be released from treatment, he was to be transferred directly to the appropriate penal institution to begin serving the unexpired term of the life sentence for kidnapping. Under no circumstances was he to be released without prior approval of the court, unless he was transported directly to the penal institution to commence the life sentence.

On June 3rd, appellant filed a petition for leave to file a belated motion to correct errors. Leave to file was granted. This belated motion included errors related to the criminal sexual deviancy procedure, which could not be raised in his first motion to correct errors, because of the time requirement for filing. On June 20th, the court denied the motion, but instructed appellant to include in his appeal to this Court the additional grounds relied on in his belated motion.

Two of the issues raised in appellant's brief were not argued in the brief, so that this Court must consider them waived. AP. 8.3(7)(a). However, this appeal does present three basic issues: (1) whether the evidence was sufficient to support the jury's verdict on both counts; (2) whether the court erred in admitting evidence of a prior act of forced sodomy with another woman; (3) whether the court erred in refusing to find that the kidnapping was a part of the sexual offense for the purpose of treatment as a criminal sexual deviant.

The evidence was sufficient to support the jury's findings. The prosecuting witness testified that appellant forced her into his car and would not let her get out when she tried to open the door. Although this testimony was not corroborated and conflicting testimony was given, the jury could have credited the testimony of the prosecuting witness, and it adequately described the elements that the State must prove in a prosecution for kidnapping: a forcible carrying off of a person from a place within the state.

In regard to the sodomy conviction, appellant's primary claim is that, within the confines of his small foreign car, it would have been impossible to commit sodomy in the manner described by the prosecuting witness. The jury was presented with testimony of the car's dimensions. We do not believe the jury was mistaken as a matter of law in finding that the sodomy did take place.

Appellant next objects to the admission of testimony concerning a prior act of forced sodomy. A witness for the State testified that she was walking in the direction of her home about 7:00 a.m., April 8, 1973. Appellant honked and waved, and she waved back because she recognized him as a customer whom she had seen three or four times in the store where she worked. He stopped and offered her a ride, which she accepted. He drove her toward her house but then continued about six houses beyond it and down a gravel drive. There, he talked to her and forced her to commit an act of oral sex. When a neighbor came out in his yard, appellant told the witness to get out of the car and leave.

In Lamar v. State (1964), 245 Ind. 104, 195 N.E.2d 98, we held that evidence of prior acts of sodomy was admissible in a prosecution for sodomy, because the evidence would lend support to the testimony of the prosecuting witness which otherwise might be disbelieved. In Meeks v. State (1968), 249 Ind. 659, 234 N.E.2d 629, we determined that evidence of prior sexual acts should not be admitted when the only issue was whether the woman had consented to what, without consent, would have been rape. However, the Court noted that evidence of prior similar acts was admissible in cases of assault with intent to commit rape and crimes involving a so-called depraved sexual instinct. In Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299, a prosecution for sodomy and rape, the court allowed a rebuttal witness to testify to an act of forced sodomy, which occurred nineteen days before the acts alleged by the prosecuting witness. And, in Austin v. State (1974), Ind., 319 N.E.2d 130, a witness was permitted to testify to acts of forced sodomy and rape on the morning of the sodomy and rape of the prosecuting witness. The trial court correctly followed these cases when it allowed into evidence the testimony of a prior act of sodomy.

In the present case, forty-five days intervened between the two acts. We have admitted evidence of prior acts of sodomy with another person because prior similar acts are believed to show a disposition to commit the kind of act charged, and there is a belief that this emotional disposition or passion will continue to the time of the act charged. Bracey v. U.S., 79 U.S.App.D.C. 23, 142 F.2d 85 (1944) (Dictum) (This was the only case cited in Meeks for the proposition that evidence of similar acts is ...