Preston v. State

• Court: Indiana Supreme Court
• Writing for the Court: HUNTER; ARTERBURN; DeBRULER; DeBRULER
• Citation: Preston v. State, 259 Ind. 353, 287 N.E.2d 347 (Ind. 1972)
• Decision Date: 27 September 1972
• Docket Number: No. 971S283,971S283
• Parties: James A. PRESTON, Appellant, v. STATE of Indiana, Appellee.

Page 347

287 N.E.2d 347

259 Ind. 353

James A. PRESTON, Appellant, v. STATE of Indiana, Appellee.

No. 971S283.

Supreme Court of Indiana.

Sept. 27, 1972.

Wendell L. Ham, Huntington, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Schaefer, Depty. Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by James A. Preston from a judgment in the Wabash Circuit Court ^*. Appellant was charged by affidavit with two counts of Public Indecency. Upon conviction, he was fined in the sum of $100 and sentenced to the Indiana State Farm fox six (6) months. Appellant's Motion to Correct Errors was overruled and this appeal followed.

The issues presented for review on appeal are as follows:

1. Was the appellant properly identified at trial as being the person who committed the alleged offense?

2. Is voluntary intoxication a valid defense to a charge of public indecency?

3. Was the admission in evidence of certain testimony describing the mental and physical after-effects suffered by three minor females as a result of the alleged crime prejudicial error?

On January 24, 1971, one Richard Butzin drove to the Wabash Village Shopping Center in Wabash, Indiana, to see his wife who was employed there. Mr. Butzin parked his car in front of the store where his wife worked and went inside. He left his three daughters, ages eight, seven and five, in the car. While inside the store, Mr. Butzin looked out the window where he noticed the appellant standing by the side of the car which contained his three daughters. When Mr. Butzin further observed that the appellant had exposed himself and was masturbating in front of his daughters, he ran outside and apprehended him.

While waiting for the police to arrive, the appellant made the following statements: 'Can you guys prove it?'; 'You'd better be able to prove it.' The appellant also stated that he 'wouldn't do it again.' Witnesses testified that the appellant smelled of alcohol and that he appeared to be intoxicated.

When the police arrived, the appellant was arrested and the next day he pleaded guilty to a charge of public intoxication. A few days later, he was re-arrested and charged with public indecency.

Appellant's first contention is that the State failed to have the witnesses identify the appellant at trial as being the person who committed the offense. It is true that no witness pointed to the appellant at trial and said, 'that is the man.' However, at least three witnesses referred to the 'defendant' as being the person at the shopping center who committed the crime. A similar question was presented in State v. Schroeppel (1959), 240 Ind. 185, 187, 162 N.E.2d 683, 684, where we stated:

'The evidence further shows that at various times Fred Schroeppel, the appellee (defendant below), was referred to . . . as 'the defendant's during the trial. We may assume the defendant was present in court since the law requires his presence during the trial and no issue is made on that point. It is well settled that a defendant may be identified by name.'

For the reasons stated in Schroeppel, we conclude that the appellant was sufficiently identified and that no error occurred in regard to this matter.

It is next contended that appellant was too intoxicated to form the necessary intent to commit the crime. Almost all of the evidence indicates that appellant appeared to be either intoxicated or at least, to some extent, under the influence of alcohol. Appellant testified that he had no recollection of the incident whatsoever. Donald Hall, who was called as a witness for the appellant, testified that he and the appellant had consumed a considerable amount of liquor immediately prior to the incident, and that, in his opinion, the appellant was seriously intoxicated. Other witnesses, however, testified that although the appellant may have been drinking, it did not appear to them that he was so intoxicated that he was unable to comprehend the nature of his actions. Furthermore, the evidence indicates that the appellant was able to understand and respond to questions which were put to him by Mr. Butzin at the scene of the crime.

As a general rule, voluntary intoxication is not a defense to a criminal charge. See, Daniels v. State (1971), Ind., 274 N.E.2d 702; Dobbs v. State (1957), 237 Ind. 119, 143 N.E.2d 99. An exception to this rule exists for crimes involving specific intent, but this is a question of fact for the jury. Daniels v. State, supra; New v. State (1970), Ind., 259 N.E.2d 696; Cotton v. State (1965), 247 Ind. 56, 211 N.E.2d 158. In Boatman v. State (1956), 235 Ind. 623, 628, 137 N.E.2d 28, 30, we stated:

'It is a well settled rule that where an offense charged is the violation of a statute, the only intent necessary to the commission of the offense is the intent to do the prohibited thing.'

We are of the opinion that there is substantial evidence of probative value sufficient to support the finding by the jury that the appellant intended his actions, and such a determination will not be disturbed on appeal.

Appellant's final argument is that it was prejudicial error to permit the parents of the three minor children to testify in regard to the effect the appellant's act had on the three children. Appellant relies on our decision in Rowe v. State (1968), 250 Ind. 547, 237 N.E.2d 576, to support his position. In Rowe, the State was allowed to show, over objection, that a murder victim left a wife and two children surviving him. In regard to that issue, we recognized that when such evidence...