Umbaugh v. Hutto

• Decision Date: 29 October 1973
• Docket Number: No. 73-1113.,73-1113.
• Citation: 486 F.2d 904
• Parties: Cleveland UMBAUGH, Appellant, v. Terrell Don HUTTO, Commissioner of Corrections, State of Arkansas, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

486 F.2d 904 (1973)

Cleveland UMBAUGH, Appellant, v. Terrell Don HUTTO, Commissioner of Corrections, State of Arkansas, Appellee.

No. 73-1113.

United States Court of Appeals, Eighth Circuit.

Submitted June 12, 1973.

Decided October 29, 1973.

John G. Lile, III, Pine Bluff, Ark., for appellant.

James W. Atkins, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before MR. JUSTICE CLARK,^* and HEANEY and BRIGHT, Circuit Judges.

CLARK, Associate Justice.

Cleveland Umbaugh, appellant, stands convicted in the Circuit Court of Arkansas of the offense of kidnapping Joselyn Howard for the purpose of committing a felony. The evidence showed that Miss Howard had been kidnapped and transported to a secluded spot for the purpose of raping or otherwise physically assaulting her. At appellant's trial, Birtie Smith, Umbaugh's relative by marriage, testified that he had driven her to the same secluded spot some fifteen months earlier and had forced her to have sexual relations by threatening the life of her child who was accompanying them. Umbaugh claimed on direct appeal, as he claims in the present petition for federal habeas relief, that this testimony was highly inflammatory and prejudicial to him and that the error in admitting it reached constitutional proportions. However, the Supreme Court of Arkansas found no merit in the claim; it held that the testimony was admissible for the limited purpose of showing Umbaugh's motive and intent in kidnapping and taking Miss Howard to the same area for the same purpose, which proof of intent was necessary to the charge of kidnapping with intent to commit a felony. We agree and affirm.

1. The Facts:

Umbaugh, a 22 year old married white man and his 19 year old white companion, Darrell Hurley, were sitting in Umbaugh's parked automobile as Joselyn Howard, a 17 year old black high school girl, came by on her way home from school. Umbaugh asked Miss Howard if she wanted a ride, and when she refused, he got out of the car, seized her, forced her into the car, gagged her and locked the door. Meanwhile Hurley got in the back seat and Umbaugh drove to Wildcat Mountain near the Arkansas River. There he forced her to disrobe and raped her while she was in the front seat of the car. She lost consciousness for awhile, but after regaining it she found Umbaugh pulling her from the car. He blindfolded her and pushed her down a hill, threatening to throw her into the river. She escaped as both men chased her, throwing rocks at her and attempting to force her into the river. She eluded them and got help from the first house she reached.

Hurley testified against Umbaugh, corroborating Miss Howard's story and admitting that he too had raped her. At trial Umbaugh admitted that he picked Miss Howard up and that he and Hurley took her to Wildcat Mountain where they both had sexual relations with her. He testified, however, that she willingly entered his car and drove with them to the mountain location and affirmatively consented to the sexual relations.

To prove the charge of kidnapping with intent to commit a felony, the State offered the testimony of Miss Howard, Hurley and Mrs. Birtie Smith, Umbaugh's relative by marriage. Mrs. Smith testified that she was visiting her brother (the husband of Umbaugh's sister) in Barling, Arkansas, in December 1968. Umbaugh offered to drive her and her three year old child to their home in Arkoma, Oklahoma. On the pretext of using a shorter route, Umbaugh drove them to Wildcat Mountain and there threatened to kill Mrs. Smith's child unless Mrs. Smith had intercourse with him. When he actually began choking the child, Mrs. Smith submitted.

Umbaugh testified that in both instances, the women willingly accompanied him to Wildcat Mountain and willingly engaged in sexual relations with him. He admitted blindfolding Miss Howard and telling her that he was going to throw her in the Arkansas River and drown her and that he threw rocks at her and ran after her. This was all in fun, he said, and was just to torment, tease and scare her.

2. Evidence of Similar Offenses Closely Related in Time and Place

It is, of course, axiomatic that evidence of other crimes may not be introduced merely for the purpose of showing the accused to be a man of bad character likely to commit the crime charged: Lovely v. United States, 169 F.2d 386, 388 (4 Cir. 1948). However, in the present case the evidence was admitted for the limited purpose of showing Umbaugh's motive and intent in committing the offense charged, i. e., kidnapping with intent to commit a felony. As Judge Parker said in Lovely, supra, at 388, 390:

"It is true, of course, that evidence which has a reasonable tendency to establish the crime charged in the indictment is not rendered inadmissible merely because it establishes another crime; . . . Evidence of the commission of similar offenses closely related in time and place may, however, be relevant on such matters as identity, guilty knowledge, motive or intent where these are in issue . . . . * * *

"While evidence of other similar offenses is held admissible for the purpose of establishing intent in cases of assault with intent to commit rape (Wigmore on Evidence, 2d Ed. Sec. 357), and evidence of other offenses of like character is admissible in prosecutions for crime involving a depraved sexual instinct (See Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85), the overwhelming weight of authority is that such evidence is not admissible in prosecutions for rape. The reason for the difference in the rule applicable is obvious. Other attempts to ravish have a tendency to show that an assault under investigation was made with like intent. Acts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of that character. The fact that one woman was raped, however, has no tendency to prove that another woman did not consent." (Footnote omitted.)

It is well to bear in mind that Umbaugh was not charged with rape but with kidnapping for the purpose of committing a felony.

Wigmore teaches us that proof of other offenses is permissible for the purpose of establishing intent, citing as examples cases of...