Simmons v. State

• Citation: 324 N.E.2d 513,163 Ind.App. 437
• Decision Date: 20 March 1975
• Docket Number: No. 2--174A36,2--174A36
• Parties: Robert SIMMONS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 513

324 N.E.2d 513

163 Ind.App. 437

Robert SIMMONS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2--174A36.

Court of Appeals of Indiana, Second District.

March 20, 1975.

Rehearing Denied April 22, 1975.

[163 Ind.App. 438] George A. Purvis, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Defendant-Appellant Robert Simmons (Simmons) appeals from a conviction of Sodomy and Assault and Battery with Intent to Gratify Sexual Desires claiming insufficient evidence and error in denying his Motion for Discharge due to delay of trial.

We affirm.

FACTS

The evidence and facts most favorable to the State are as follows:

On the afternoon of Saturday, October 7, 1972, an eleven-year-old male child was returning home from the store. As he passed by the residence of Simmons at 119 West 22nd Street, Indianapolis, Indiana, Simmons, a male thirty-five years of age, beckoned him and invited the boy into the house.

Inside, Simmons told the child to disrobe and lie on the bed. After removing his own clothes, Simmons began kissing the boy on the face and chest, and performed fellatio on him. Simmons then attempted anal intercourse which the boy testified frightened him. Finally, Simmons forced the victim to perform fellatio on him while Simmons was doing the same to the child.

After these acts were committed, Simmons paid the child two dollars and sent him on his way. Upon returning home, the boy's mother found the two dollars, questioned him, and punished him for taking the money from Simmons--with whom she had told him not to associate. He did not, however, divulge to his mother at this time the sexual acts committed by Simmons.

The same evening the child apparently ran away from home, but returned the following evening. At this time the child's mother again questioned him about the events of the previous day . . . and he related them to her. She then informed the police.

Simmons' version of the episode was that the child appeared at his door as a runaway who feared parental punishment because of committing sexual acts with his brother . . . and that he sent him away after five minutes without committing any of the acts charged.

Simmons was arrested on November 18, 1972. An indictment was filed by the Grand Jury on February 8, 1973, and the defendant was arraigned in Criminal Court on April 4, 1973, an attorney being appointed for him at this time. Trial was set for May 10, 1973.

On May 8, 1973, Simmons, by his attorney, filed a motion for continuance which was granted by the court, and the trial was reset for May 25, 1973. On that date, Simmons filed a pro as Motion for Discharge, claiming that he had been incarcerated for a period exceeding six months from the time of his arrest without trial in contravention of Criminal Rule 4(A). The motion was denied at a subsequent hearing.

After further continuances Simmons was convicted in a court trial of Sodomy and Assault and Battery with Intent to Gratify Sexual Desires and sentenced on the Sodomy conviction only to imprisonment for a period of not less than two (2) nor more than fourteen (14) years. He appeals.

ISSUES

ISSUE ONE Did the trial court err by denying Simmons' Motion for Discharge for delay of trial beyond the six-month period in violation of Criminal Rule 4?

ISSUE TWO Is there sufficient evidence to sustain the trial court's conviction of Simmons for Sodomy and Assault and Battery with Intent to Gratify Sexual Desires?

As to ISSUE ONE, Simmons contends that because he was incarcerated for a period exceeding six months from the time of his arrest on November 18, 1972, to the date set for trial, May 25, 1973, he is entitled to be discharged pursuant to C.R. 4.

The State argues that Simmons, by his attorney, filed a Motion for Continuance which resulted in the delay of trial and was not entitled to discharge.

As to ISSUE TWO, Simmons contends that the boy is without credibility due to his age, his failure to complain immediately to his mother, and because his story was motivated by fear of parental reprisal.

The State contends that it is not within the prerogative of this Court to disbelieve witnesses or redetermine the credibility of their testimony where there is sufficient evidence of probative value to sustain the conviction.

In his Motion to Correct Errors and his brief Simmons states counsel should have been appointed for him earlier in the proceedings but he makes no argument nor cites any authority relative thereto. Therefore any such error is waived. Hitch v. State (1972), Ind., 284 N.E.2d 783, 786; Johnson v. State (1972), Ind., 278 N.E.2d 577, 580; Williams v. State (1973), Ind.,297 N.E.2d 805; Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489.

DECISION

ISSUE ONE

CONCLUSION--It is our opinion that the trial court did not err by failing to grant Simmons' Motion for Discharge.

Criminal Rule 4(A) reads, in pertinent part, as following:

'Defendant in jail. No defendant shall be detained in jail on a charge, without a trial, for a (continuous) period in aggregate embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later); except where a continuance was had on his motion, or the delay was caused by his act . . ..' (Emphasis added.)

Neither party takes cognizance of the wording of the rule, which states that the six-month period commences either from the time of the defendant's arrest, or from the time of his indictment--'whichever is later'.

The record indicates that, although Simmons was arrested on November 18, 1972, the indictment was not filed by the Grand Jury until February 8, 1973. Trial was set on May 10 and again on May 25, 1973, . . . well within the six-month period required by Criminal Rule 4(A). In each instance the trial setting was continued as a result of action taken by Simmons himself or by counsel.

Holt v. State (1974), Ind., 316 N.E.2d 362, 363, establishes the governing rule:

'appellant was arrested on February 25, 1972. He was indicted on March 24, 1972. The six-months period of the rule (C.R.4) begins on the latter date.' (Emphasis added.)

See also, Utterback v. State (1974), Ind., 310 N.E.2d 552; Layton v. State (1973), Ind., 301 N.E.2d 633; Bryant v. State (1973), Ind., 301 N.E.2d 179; State v. Henry (1975), Ind.Ct.App., 323 N.E.2d 258; Collins v. State (1975), Ind.App., 321 N.E.2d 868, 45 Ind.Dec. 427; Johnson v. State (1...