Simcox v. State

• Decision Date: 09 July 1975
• Docket Number: No. 2--974A219,2--974A219
• Citation: 330 N.E.2d 391,165 Ind.App. 16
• Parties: Gale G. SIMCOX, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 391

330 N.E.2d 391

165 Ind.App. 16

Gale G. SIMCOX, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--974A219.

Court of Appeals of Indiana, Third District.

July 9, 1975.

Donald G. Fern, Peru, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Harry John Watson, III, Deputy Atty. Gen, Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Gale G. Simcox (Simcox) was convicted of the crime of assault and battery with intent to commit a felony following a trial before a jury. His motion to correct errors was overruled, and this appeal was perfected.

The statements of fact and inferences therefrom most favorable to the State in the record of this cause establish that on the night of January 23, 1974, appellant-Simcox approached the intersection of Second and Miami Streets in Peru, Indiana, in his 'Van' type vehicle, and stopped for a red light. At this time, a 17-year old girl was walking near the intersection. After inquiring if she desired a ride and receiving a negative response, Simcox turned onto the street the girl was following, proceeded a short distance ahead, and parked his vehicle.

As the girl passed Simcox's automobile, he emerged from it and stated, 'I was gonna get you anyway.' He then grabbed her by the shoulders and propelled her 'a couple of steps into the alley, two or three, into the alley itself, right behind the buildings.' She then screamed and Simcox ran down the alley and away from her.

This incident was immediately reported to the police, and Simcox was apprehended shortly thereafter as he pushed his stalled vehicle near the scene of the attack.

Simcox was charged by information with the crimes of assault and battery with intent to commit a felony, to-wit: rape, and assault and battery with intent to commit a felony, to-wit: aggravated assault and battery. ¹ Following trial, the jury returned a general verdict finding Simcox guilty of 'Assault and Battery with Intent to Commit a Felony.'

On appeal Simcox challenges the propriety of the admission in evidence in the trial court of facts relating to another crime committed by him eight to nine months prior to the crime in the instant case. While such crime was sexual in nature, it did not involve actual or attempted rape.

In the case of Duvose, et al. v. State (1971), 257 Ind. 450, 275 N.E.2d 536, our Supreme Court ruled evidence of other rapes inadmissible in a rape prosecution unless such other crimes were shown to fall within one of several general exceptions. Therein, at 452 of 257 Ind., at 537 of 275 N.E.2d, the court stated:

'The general rule in Indiana is that evidence of separate and distinct crimes is inadmissible except to show intent, motive, identification or a common scheme or plan. Hennings v. State (1971) (256 Ind. 115), 267 N.E.2d 172, 24 Ind.Dec. 674.

'There was no attempt on the part of the state in this case to bring the evidence of the rapes alleged to have occurred in Pennsylvania within the above exceptions to the rule. It is difficult to see how such a statement made by the officer could be anything but prejudicial to the appellants. There is no showing of any relevance of the alleged acts in Pennsylvania to any point in issue to the case at bar.'

In the case at bar, there likewise was no showing by the State that the evidence of the prior crime was within one of the exceptions stated hereinabove. The admission of such evidence, over appellant's objection, was error.

Simcox also questions the sufficiency of the evidence adduced at trial to support his conviction.

The pertinent part of the statutes relevant to the charges against appellant are as follows:

'Whoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery, and on conviction, shall be fined not more than one thousand dollars ($1,000), to which may be added imprisonment in the county jail not exceeding six (6) months: * * *.'

IC 1971, 35--1--54--4, Ind.Ann.Stat. s10--403 (Burns Supp.1974).

'Whoever perpetrates an assault or assault and battery upon any human being with intent to commit any felony other than a felonious homicide, shall, on conviction, be imprisoned in the state prison for not less than one (1) nor more than ten (10) years.'

IC 1971, 35--1--54--3, Ind.Ann.Stat. § 10--401 (Burns Supp.1974).

'Whoever has carnal knowledge of a woman forcibly against her will, or of a female child under the age of sixteen (16) years; or whoever being over eighteen (18) years of age, has carnal knowledge of a women, other than his wife, who is insane, idiotic or feebleminded, he knowing of such condition; (,) is guilty of rape, and on conviction shall be imprisoned for a determinate period of not less than two (2) years nor more than twenty-one (21) years: * * *.'

IC 1971, 35--13--4--3, Ind.Ann.Stat. § 10--4201 (Burns Supp.1974).

'Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery and upon conviction shall be imprisoned in the state prison for not less than one (1) year nor more than five (5) years, to which may be added a fine in any amount not to exceed one thousand dollars ($1,000).'

IC 1971, 35--13--3--1, Ind.Ann.Stat. § 10--410 (Burns Supp.1974).

The gist of the charges against appellant was that he had committed an assault and battery upon the girl he accosted while possessing the intent to either rape her, or to inflict 'great bodily harm or disfigurement' upon her.

In determining appellant's intent at the time of the incident described...