Woods v. State, 250 Ind. 132, 235 N.E.2d 479 (1968)

HUNTER, J.:

This was a criminal prosecution brought by indictment against appellant, Herman Woods, charging him in two counts with rape of and incest with his fifteen-year-old daughter, Sandra Woods.

The indictment filed in this case in the Gibson Circuit Court, on the 8th day of October, 1965, omitting caption and formal parts, reads as follows:

COUNT ONE

"The Grand Jury of Gibson County, State of Indiana, on their oaths present and charge that Herman Woods, on or about the 1st day of May, 1965, in said county and state, did then and there unlawfully and feloniously make an assault in and upon one Sandra Woods, then and there being a female child under the age of sixteen (16) years, to-wit: of the age of fifteen years, and did then and there unlawfully and feloniously ravish and carnally know her, the said Sandra Woods, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana."

COUNT TWO

"The Grand Jury of Gibson County, State of Indiana, on their oaths present and charge that Herman Woods on or about the 1st day of May, 1965, in said county and state, did then and there unlawfully, feloniously, incestuously and knowingly have sexual intercourse with one Sandra Woods, a daughter of the said Herman Woods. He the said Herman Woods then and there well knowing the said Sandra Woods to be his daughter, contrary to the form of the statute in such cases made and provided against the peace and dignity of the State of Indiana."

Following trial, the jury returned verdicts of guilty on both counts. Judgment was entered on the verdicts and appellant was sentenced on each count to be imprisoned in the Indiana State Prison for two (2) to twenty-one (21) years, the sentences on the two counts to run concurrently. Appellant's motion for new trial was overruled and he brings this appeal on the basis of four main contentions, all of which are redundantly set out in such motion:

1. That the trial court erred in refusing to sustain appellant's plea in abatement which challenged the propriety of the selection of the grand jury from which the indictment against appellant emanated.

2. That the trial court erred in refusing to sustain appellant's motion to quash the indictment.

3. That the trial court erred in allowing certain testimony by the prosecuting witness to be admitted into evidence, which substantially prejudiced appellant's right to a fair trial.

4. That the evidence was insufficient to support the jury's verdict.

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Appellant's third allegation of error is that the trial court erred in admitting into evidence testimony of the prosecuting witness to the effect that she and appellant had engaged in acts of sexual intercourse several times prior to the act charged in the indictment. Appellant contends that he was gravely prejudiced by the introduction of such testimony, and the failure of the trial court to grant him a continuance when such testimony was sought, for the reason that appellant was relying on his ability to establish an alibi defense to the specific act charged. He argues that such defense was effectively nullified by the introduction of prior criminal acts, even though the alibi itself was, he contends, established.

The relevant alibi statutes provide: "§ 9-1631. Alibi -- Notice to prosecuting attorney when evidence to be offered -- Exception. -- Whenever a defendant in a criminal case in a court other than that of a justice of the peace shall propose to offer in his defense evidence of alibi, the defendant shall, not less than ten (10) days before the trial of such cause, file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to offer such defense. The notice shall include specific information in regard to the exact place at which the defendant claims to have been at the time stated in the indictment or affidavit as the time of such offense. The provisions of this statute shall not apply in case the court sets the trial for a date less than fourteen (14) days ahead." Ind. Anno. Stat. § 9-1631 (Repl. 1956).

"§ 9-1632. Alibi -- Notice by prosecuting attorney -- Second notice by defendant. -- In the defendant's notice, as provided in the next preceding section, the defendant may also expressly require the prosecuting attorney to file and to serve upon the defendant or upon his counsel a specific statement in regard to the exact date which the prosecution proposes to present at the trial as the date when, and the exact place which the prosecution proposes to present at the trial as the place where, the defendant was alleged to have committed or to have participated in the offense. If the defendant's notice requires such statement by the prosecuting attorney, or if the prosecuting attorney proposes to present at the trial as the specific date when the defendant committed or participated in the offense a date other than the date stated in the defendant's notice, the prosecuting attorney shall file and serve such statement upon the defendant or upon his counsel not later than eight (8) days before the trial. If the prosecuting attorney's statement to the defendant names a specific date other than the date which is stated in the indictment or affidavit and in the defendant's notice, the defendant shall not later than four (4) days after the filing of the prosecuting attorney's statement file and serve upon the prosecuting attorney defendant's second notice presenting for such changed date the same details required for the original notice." Ind. Anno. Stat. § 9-1632. (Repl. 1956).

Both sides closely complied with Indiana's "alibi statutes" in this case. Ind. Anno. Stat. § 9-1631, supra. After notice of appellant's intention to offer an alibi defense was filed, the State produced a statement that the alleged offense in this case occurred on the first day of May, 1965, between the hours of 1:00 P.M. and 4:00 P.M., off a gravel road approximately 6 miles northwest of the City of Princeton, in Gibson County, Indiana. At trial, appellant introduced evidence tending to show that he was busy working all day on May 1, 1965, always in the presence of other persons, and that the vehicle in which the prosecuting witness testified the act was done never was driven by anyone on that day.

There are two seemingly conflicting bodies of case law that bear upon the problem presented by appellant's contention.

It has been recognized at least twice by this Court that where time is not of the essence of the offense, even though the allegation specifies the crime to have occurred on a specific date, the State may prove that the crime occurred at any time prior to the filing of the affidavit or indictment and within the statutory period of limitations. However, these same cases recognize that this general rule yields to a requirement of specific proof where the "alibi statutes", supra, are invoked. Stallings v. State (1953), 232 Ind. 646, 114 N. E. 2d 771; Evans v. State (1946), 224 Ind. 428, 68 N. E. 2d 546. Where there is a substantial variation between the time of the crime charged in the indictment or affidavit, and the time of the crime as shown by the State's evidence, and defendant is relying upon an alibi, it appears that upon timely motion by defendant a continuance should be granted. Stallings v. State, supra; Note, Criminal Law: Statutory Regulation of Alibi Defense Through Notice Requirements, 30 Ind. L. J. 106 (1954-55).

The other relevant body of law involves the admissibility at trial of evidence of prior criminal acts.

The general rule in Indiana is that evidence of separate, independent and distinct crimes is inadmissible to establish the defendant's guilt of the crime charged except to show intent, motive, purpose, identification, or a common scheme or plan. Meeks v. State (1968), 249 Ind. 659, 234 N. E. 2d 629, opinion filed March 1, 1968, cause number 30910; Watts v. State (1950), 229 Ind. 80, 95 N. E. 2d 570.

In Meeks v. State, supra, it was also recognized that evidence of prior crimes is inadmissible in rape cases where the act charged has been proved or admitted and the only issue concerns the consent of the prosecutrix.

In Lovely v. United States, 169 F. 2d 386 (4th Cir. 1948), which was cited and quoted with approval in Meeks v. State, supra, it was noted that while evidence of similar offenses closely related in time and place may be relevant on such matters as identity, guilty knowledge, motive or intent, where these are in issue, or may tend to establish a criminal plan or design out of which the crime charged has originated, it is well settled, that such evidence is not admissible where it has no other relevance or probative force other than to show a tendency or likelihood on the part of the accused to commit the crime except in prosecutions for crime involving a depraved sexual instinct or for the purpose of proving intent in cases of assault with intent to commit rape.

In this case, there is obviously no issue as to identity, guilty knowledge, motive or intent or common scheme. But the testimony of the prosecuting witness in the case at bar that her father had engaged in sexual intercourse with her on several occasions previous to that charged in the indictment falls squarely within the exception to the general rule as to the admissibility of prior criminal acts in cases involving a "depraved sexual instinct."

This view is in accordance with long-standing Indiana case law to the effect that evidence of prior similar acts is admissible in prosecutions for incest. Lefforge v. State (1891), 129 Ind. 551; State v. Markins (1884), 95 Ind. 464. Neither was such evidence required to be excluded, nor was the court under a duty to grant a continuance because of appellant's reliance upon an alibi defense since the only purpose for which the testimony as to the prior similar acts could have been considered by the jury was to determine whether such evidence increased the probability of appellant's guilt by connecting him with other crimes of the character charged. Lovely v. United States, supra.

The jury was instructed as follows by the trial court:

"The Court instructs the Jury that it is the law of this State that a defendant may never be proven guilty of one offense by proving the commission of other crimes. Evidence has been introduced in the trial of this cause as to certain other similar offenses which the State claims to have been committed by the defendant Herman Woods, with the prosecuting witness, Sandra Woods, and other female persons.

"You are instructed that you are to bear in mind, gentlemen of the jury, that the offenses charged in the indictment herein are the sole and only crimes with which the defendant is charged in this case, and in arriving at a verdict in this case you are in no wise to determine or consider the guilt or innocence of the defendant with reference to any evidence of other similar offenses that have been offered in evidence in this cause by the State of Indiana.

"The Court instructs you, gentlemen of the Jury, that you are only permitted to consider the evidence with reference to any other similar offenses, if shown by the evidence, in the event you first find as a fact beyond every reasonable doubt from the other evidence given in the trial of this cause that the said Herman Woods did at the place, date and time as set forth in these instructions commit the offenses as charged in either or both counts of the indictment herein, then and only then are you permitted to consider the evidence with reference to other similar offenses if any, offered in evidence; and in the consideration of them you are instructed that the evidence of such other offenses, as shown by the evidence, is to be weighed by you only for the purpose of determining the guilty knowledge, intent, motive or purpose of the defendant in the commission of the offense or offenses as charged in the two counts of indictment in this cause, if you find he did commit the offenses as charged in either or both counts of the indictment beyond every reasonable doubt."

This instruction, in view of the actual state of the law in Indiana, was far more favorable to appellant than it was required to be. Therefore, appellant's claim of prejudicial error in regard to the evidence of prior criminal acts is not well founded.

Furthermore, it should be noted that there would be dire side effects were we to accept appellant's contention that evidence of prior criminal acts nullifies the effect of any alibi defense put forth by appellant, even though such evidence would be admissible in the absence of an alibi defense. If appellant's position were adopted and a defendant has ever in the past committed another criminal act similar to the one with which he is charged, the most prudent course for him to take would be to invoke the alibi defense statutes, automatically, without regard to whether or not his alibi is valid, in order to exclude any possible evidence of such prior acts. Indiana's alibi statutes cannot have been intended to have such an effect, and we will not engraft such an effect upon them.

Appellant's final contention is that the evidence produced by the State is insufficient to support the verdict of the jury. In this regard, appellant emphasizes that several witnesses testified in support of his alibi defense, and that there was no direct corroboration of the testimony of Sandra Woods. On appeal from a conviction in a criminal case, the presumptions are in favor of the trial court and this Court, in determining the sufficiency of the evidence, will only consider the evidence most favorable to the State and all reasonable and logical inferences that may be adduced therefrom. Epps v. State (1963), 244 Ind. 515, 192 N. E. 2d 549.

The rule has been well-settled in Indiana that a conviction for rape may be sustained upon the uncorroborated testimony of a prosecuting witness, if such was sufficient to convince the trier of facts beyond a reasonable doubt of defendant's guilt. Wedmore v. State (1957), 237 Ind. 212, 143 N. E. 2d 649 and cases cited therein. This rule is also applicable to cases where incest is charged.

The evidence, viewed most favorably to the State, reveals the following: Sandra Woods, the prosecuting witness, testified that on the day in question her father, appellant, picked her up in the business district of Princeton, Indiana. She said they then drove outside the city and turned onto a country road. After driving down that road for about 2 miles, her father stopped the car, and according to her testimony, she and her father there had sexual intercourse. She testified that appellant's penis was inside her during that time.

Sandra testified that such episodes of sexual intercourse with her father had occurred several times prior to May 1, 1965. On one such occasion, her sister, Mary Kay had been in the car at the time. Mary Kay corroborated this testimony. Several of Sandra's sisters and step-sisters testified that they also had had sexual intercourse with appellant living in his house.

Without delving into further detail, we hold that the record, when viewed most favorably to the State, as outlined above, discloses sufficient substantial evidence of probative value and reasonable inferences to be drawn therefrom to justify the finding and judgment of the trial court. Reno v. State (1967), 248 Ind. 334, 228 N. E. 2d 14.

Even though several witnesses gave testimony tending to establish appellant's alibi defense, that factor is of no aid to appellant in this Court under the circumstances, since the credibility and weight to be given the testimony is within the province of the trier of the facts. Reno v. State, supra.

For all of the foregoing reasons, no prejudicial error has been presented by appellant and the judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

Lewis, C. J., Arterburn, Jackson and Mote, JJ. concur.

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