State v. Gibson
| Decision Date | 12 July 1968 |
| Docket Number | No. 1704,1704 |
| Citation | 103 Ariz. 428,443 P.2d 424 |
| Parties | STATE of Arizona, Appellee, v. Edward Francis GIBSON, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Darrell F. Smith, former Atty. Gen., Anthony H. Mason, Asst. Atty. Gen., for appellee.
Anne Kappes, Phoenix, for appellant.
The appellant, Edward Francis Gibson, was convicted on July 27, 1960, of the crime of rape, a violation of A.R.S. § 13--611, and sentenced to 20 to 25 years in the state penitentiary. He filed a timely notice of appeal but before the matter was docketed in this Court his counsel presented to the lower court a motion to dismiss upon which an order of dismissal was entered. Gibson was incarcerated in the state penitentiary at Florence, Arizona, from August, 1960, to April, 1966, when present counsel succeeded in vacating the order of dismissal, whereupon this appeal has progressed to its conclusion here.
The facts established at the trial show that the complaining witness, on January 29, 1960, at approximately 6:30 a.m., was at home in bed after her husband had gone to work. Her two boys were asleep in the rear bedroom. A man entered her bedroom while she slept, placed the point of a knife against her back and threatened to kill her or her children if she did not cooperate in an act of sexual intercourse. He was there about 20 to 25 minutes but because of the complete lack of light she never had an opportunity to see him sufficiently well to make a visual identification. The complaining witness testified he was quite bony, very thin and didn't say much, and that he had on a sweet-smelling after shave lotion or cologne. There is evidence that he had an unusual or distinctive voice.
Gibson was arrested and arrangements were made at the police station for the complaining witness to listen while two policemen interrogated him. She identified his voice as that of the individual who had assaulted her. Of this identification she was positive, adhering to it through both the preliminary hearing and trial. She also identified the scent of cologne found in Gibson's apartment as that of the assailant.
During the course of approximately ten days while being held in jail, the defendant had numerous conversations with police officers, including Officer John Field who subsequently testified, over objections, at Gibson's trial concerning these conversations. In substance, Field testified that Gibson had admitted he was a 'peeping Tom' and had, at different times, walked around the neighborhood looking into windows. While Gibson lived about three blocks from the complaining witness, he never acknowledged looking into her window. He did, however, tell the police officers that if he, Gibson, received medical treatment he would admit to the offense charged against him.
Gibson urges that he was deprived of a fair trial when the court, over objections, admitted evidence characterizing him as 'sex offender' when no evidence was offered establishing that he had ever been convicted of such offense. Officer John Field testified:
'Q What else was said in the conversation, Officer?
'A I asked him as to his activities that morning, and he had explained that he had left and gone down to the unemployment office.
'Also, he told me he had gone back to the apartment and packed and waited around his apartment to be picked up for questioning.
'(DEFENSE COUNSEL): I am going to object to this entire line of testimony. * * *'
It is argued the use of the words 'sex offenders' suggested that Gibson had a prior record of similar conduct, and we agree. However, we do not think it constitutes error. The testimony is an admission that Gibson was aware that a sexual offense had been committed. From this admission the jury could infer guilty knowledge--knowledge of which only the offender and the complaining witness could have been aware.
Gibson complains of...
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State v. Kelly
...because the evidence could only be described as 'peeping-Tom' acts and as such are inadmissible in a rape prosecution. State v. Gibson, 103 Ariz. 428, 443 P.2d 424 (1968). At the trial the defendant was willing to concede that the knife was his. In State v. Gibson, supra, we held that the t......
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