Dixon v. State

425 N.E.2d 673, 1981 Ind. App. LEXIS 1659

• Court: Indiana Court of Appeals
• Decided: September 16, 1981
• Docket: 1-181A19
• Status: Published

Opinions

CHIPMAN, Presiding Judge.

Donald B. Dixon was found guilty of attempted child molesting, a class C felony, as proscribed by Ind.Code 35 — 42—4r-3(c).¹ On appeal Dixon challenges the sufficiency of the evidence to sustain his conviction. He also argues the trial court erred in instructing the jury and in admitting evidence of uncharged crimes.

We affirm.

I. Sufficiency of the Evidence

When considering sufficiency challenges on appeal, we will not invade the province of the jury by weighing the evidence or judging witnesses’ credibility. Miller v. State, (1981) Ind., 417 N.E.2d 339; Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239. Our review is confined to considering only the evidence most favorable to the State, together with all reasonable and logical inferences which may be drawn therefrom, in order to determine whether each element of the alleged offense has been proved beyond a reasonable doubt. Johnson v. State, (1980) Ind., 400 N.E.2d 132. The verdict will not be disturbed on the basis of insufficient evidence unless there is an absence of substantial probative evidence upon a material element of the offense, or the evidence is without conflict and leads to but one reasonable conclusion, which is contrary to the conclusion reached by the trier of fact. Carpenter v. State, (1974) 159 Ind.App. 373, 307 N.E.2d 109.

Utilizing this standard of review, the record discloses that on September 21, 1979, Dixon reported for work at a construction site about 7:30 a. m. but was sent home because of rain. At home, Dixon took two Allerest tablets to relieve sinus congestion. By 9:00 a. m. he had also consumed a couple beers and three shots of vodka, but Dixon indicated he did not consume any more alcoholic beverages later in the day.

According to Dixon’s testimony, at approximately 1:30 that afternoon he went to St. Joseph Catholic Elementary School, ostensibly to determine whether his sister’s two children, Joy Marie Hunter and Jolynn Hunter, were enrolled. The scenario of events, as disclosed by the respective witnesses’ testimony, however, conflicts with Dixon’s avowed purpose. A teacher from St. Joseph’s testified Dixon wandered into her classroom and said he was looking for his niece, a third grader named Tracy Dixon. The school’s custodian testified Dixon told him he was there to see his little girl, who was in the third grade and whose last name was Dixon. The record is devoid of any evidence indicating Dixon had either a niece or daughter enrolled at this school.

The testimony also showed Dixon was asked to leave St. Joseph’s, which he did, but that shortly thereafter he reentered the building, only to again be escorted from the school. Following this ejection Dixon crossed St. Joseph’s playground, scaled the eight foot fence encircling it, and walked directly across the street into Delaware School.

Dixon was found meandering throughout the Delaware School building, and when approached by school personnel he gave inconsistent explanations for his presence. On one occasion Dixon stated he was looking for his sister, a junior high pupil whose last name was Dixon. On two other occasions he stated he was looking for his daughter, a kindergarten student. Again, there was no evidence Dixon had either a sister or daughter enrolled in this school.

Dixon was also requested to leave Delaware School. Twice he was escorted from the building by the school’s principal; however, he persisted in reentering the school a third time, and on this occasion, he also entered a second floor restroom designated for “girls.” Apparently not long thereafter a twelve-year-old coed entered this restroom. As she was preparing to exit from a stall, Dixon jumped over the stall wall, landing on her shoulder and knocking her to the floor.

The young girl indicated she tried to escape by crawling under the stall, but Dixon grabbed her by the shoulders, pulled her back into the stall, forced her to stand, and then sought to unzip her pants. The victim further testified Dixon told her if she screamed or tried to get away he would kill her; nevertheless, she screamed, and a teacher soon entered the restroom to investigate. This teacher testified that upon seeing a man’s boots behind one of the stall doors, she left to obtain assistance. At this point, Dixon unlocked the stall door and ran from the restroom, through the school, and out of the building. He was pursued across the school yard and throughout the neighboring area by school personnel who ultimately found Dixon lying under a parked car. They then detained him until the police arrived.

According to an Evansville police officer, when he questioned Dixon, appellant stated he had been at the school looking for his niece and nephew, Jolynn and Joy Hunter. He denied any incident in the girls’ restroom or involvement with the twelve-year-old victim. Dixon also claimed he walked from the school and did not run until several people started yelling at him, and he saw police cars in the area. At trial Dixon admitted entering the girls’ restroom but said he had just entered to use one of the stalls, and a girl screamed when he opened the door. He denied ever touching the coed.

On appeal Dixon maintains the foregoing evidence is insufficient to sustain his conviction of attempted child molesting by means of sexual intercourse because the State failed to show he intended to perform sexual intercourse. We disagree.

Our attempt statute, Ind.Code 35-41-5-1, provides in pertinent part:

“(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.”

Thus, pursuant to this statute, in order to find an attempt to commit a crime, the State must prove the defendant was: (1) acting with the required culpability, and (2) engaging in conduct which constituted a substantial step toward commission of the offense. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507.

Dixon does not assert the State failed to show his actions were knowingly made, and he concedes the testimony was sufficient to show he had gone beyond mere preparation and in fact, had engaged in an overt act which constituted a substantial step toward some prohibited conduct, but he insists it was not possible to positively determine what prohibited conduct he intended; therefore, it was erroneous to permit the jury to conclude he intended to engage in sexual intercourse. We find the crucial question is not, however, whether it was possible Dixon intended to commit a sexual act other than intercourse, but rather, whether it was reasonable for the jury to conclude he intended to commit sexual intercourse. Under the circumstances of this case, we find such a conclusion was reasonable.

Clearly there is no absolute certainty which accompanies the determination of a criminal defendant’s intent when he entered into a particular course of conduct. We can only endeavor to glean the defendant’s intent by examining his actions.

“ ‘Intent is a mental function, and, where not consummated, (and indeed even then), it is impossible to know with absolute certainty, what was operating in the actor’s mind; and in such cases it must be arrived at by courts and juries from a consideration of the conduct and natural and usual sequence to which such conduct logically and reasonably points.’ ”

Byassee v. State, (1968) 251 Ind. 114, 239 N.E.2d 586, 588, quoting Hanes v. State, (1900) 155 Ind. 112, 116, 57 N.E. 704, 705. Thus, a criminal defendant’s liability will ultimately turn on his purpose as manifested through his conduct. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507.

After reviewing Dixon’s course of conduct we are convinced the evidence was sufficient to permit the jury to reasonably conclude Dixon was guilty of attempted child molesting by means of sexual intercourse. Byassee v. State, supra; see Himes v. State, (1980) Ind., 403 N.E.2d 1377. While it is possible Dixon intended to commit some act other than intercourse, it was reasonable for the jury to conclude he intended to have sexual intercourse with the child and had taken a substantial step toward this end when he physically restrained the young girl in a restroom stall, at a time when the two were alone, and sought to unzip the child’s pants.

II. Instructions to Jury

Count I of the Information charging Dixon with attempted child molesting alleged in pertinent part:

“[T]hat DONALD B. DIXON _ _ on or about the 21 day of September A.D., 1979 . ... being over the age of sixteen (16) years did attempt to commit the crime of performing sexual intercourse with Pamela B. Jackson, a child twelve (12) years of age or older, but under the age of sixteen (16) by threatening the use of deadly force on the said Pamela B. Jackson in that the said Donald B. Dixon did knowingly confine the said Pamela B. Jackson in the Girl’s Restroom of the Delaware School located at 700 N. Garvin Street, in the City of Evansville, County of Vander-burgh, State of Indiana, by the use of force and the imminent threat of force on the said Pamela B. Jackson, by knowingly attempting to unzip the pants of the said Pamela B. Jackson while she was so confined and by knowingly threatening to kill the said Pamela B. Jackson if she resisted his attempts to undress her, all of which conduct constituted a substantial step toward the crime of Child Molesting, all in violation of I.C. 35-41-5-1 and I.C. 35-42-4-3.”

It is clear this Information charged Dixon with attempted child molesting by attempting to perform sexual intercourse and did not charge him with attempting to perform deviate sexual conduct.²

On appeal Dixon questions the propriety of giving Instruction No. 4 which read:

“The court instructs you that the statute of our State defines Child Molesting Class A as charged in Count I of the Information as follows:

(c) A person sixteen (16) years of age or older who, with a child twelve (12) years of age or older but under sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class C felony. However, the offense is a Class A felony if it is committed by using or threatening the use of deadly force, or while armed with a deadly weapon.”

Dixon alleges it was erroneous to give this instruction because he was not charged with attempting to commit child molesting by engaging in deviate sexual conduct, yet the jury was instructed that engaging in deviate sexual conduct was a form of child molesting.³

Generally it is not erroneous to give an instruction in the language of the applicable statute, Musick v. State, (1972) 258 Ind. 295, 280 N.E.2d 602; Zarnik v. State, (1977) 172 Ind.App. 593, 361 N.E.2d 202, but within Instruction No. 4, the jury was advised this statutory section which they were being given defined “Child Molesting Class A as charged in Count I of the Information.” (emphasis added) Our examination of Instruction No. 4 reveals, however, that although it did set forth the statutory section which Count I charged Dixon with violating, the instruction was not limited to defining child molesting as charged in the Information since it defined child molesting as engaging in either deviate sexual conduct or sexual intercourse. While it would have been proper to instruct the jury as to the statutory section which Dixon was charged with violating, it was improper to state this instruction defined the crime “as charged.” We, therefore, find the court erred in giving Instruction No. 4; however, we do not believe reversal is warranted.

“ ‘A violation of the rule that the instructions must not be broader than the indictment or information will not cause ' a reversal, where it appears from the record that the jury were not misled to the prejudice of the defendant,

Campbell v. State, (1925) 197 Ind. 112, 149 N.E. 903, 905, quoting 1 Randall’s Instructions to Juries, § 134. Clearly, not every infirmity which appears in an instruction necessitates reversal since the erroneous language may not vitiate the whole charge of which it forms a part. Our concern is that the jury was not permitted to find the appellant guilty of an offense defined by statute but which was not charged.

Before we will declare an erroneous instruction to be reversible error, we must be convinced it has been harmful to the appellant. Campbell v. State, supra. In making this determination, we will consider all the instructions with reference to each other and as an entirety, and error in one instruction will not result in reversal unless the error is such that the whole charge of which it forms a part injures the appellant by misleading the jury as to the law of the case. Porter v. State, (1979) Ind., 391 N.E.2d 801; Ferrier v. State, (1977) 266 Ind. 117, 361 N.E.2d 150.

In the case at bar the jury was advised to consider all the instructions as a whole and to construe them in harmony with each other. In addition to Instruction No. 4, the jurors were given an instruction which expressly set forth Count I of the Information and were told the State had to establish the material allegations of this Information beyond a reasonable doubt before they could find Dixon was guilty. We also note that unlike Shelton v. State, (1936) 209 Ind. 534, 199 N.E. 148, which Dixon relies upon to support his assertion that giving Instruction No. 4 was reversible error, proof was not tendered in this case to support the charge set forth in the erroneous instruction.

In Shelton, the appellant was charged with committing manslaughter while driving under the influence of intoxicants and while driving at a speed greater than was reasonable and prudent. There was sharp conflict in the evidence regarding the appellant’s intoxication and driving speed, but there was undisputed evidence indicating Shelton had been operating his truck recklessly. Under the instructions, the jury was permitted to find Shelton guilty if they concluded he had been driving while under the influence or at an unlawful speed or in a reckless manner. Our Supreme Court reversed Shelton’s conviction because the Court was concerned he might have been found guilty of manslaughter based upon proof of an uncharged unlawful act (reckless driving). This is not, however, the situation herein; Dixon was not found guilty of the alleged child molesting based upon proof showing he had attempted to engage in deviate sexual conduct. As Dixon candidly admitted in his objection to Instruction No. 4, there was not “any proof in the record, that there was any deviate sexual conduct committed by this defendant.”⁴ The evidence herein was sufficient to sustain Dixon’s conviction for attempted child molesting by attempting to engage in sexual intercourse, but the record is virtually devoid of evidence to support a charge of attempted deviate sexual conduct; ⁵ therefore, in light of the proof rendered at trial as well as the other instructions tendered, we find any error in giving Instruction No. 4 to have been harmless.⁶

Dixon also urges the court erred in giving Instruction No. 12 which provided:

“Culpability is defined by statute as follows:

A person who engages in conduct “intentionally” if, when he engages in the conduct, it is his conscious objective to do so.

A person engages in conduct “knowingly” if, when he engages in the conduct, he is aware of a high probability that he is doing so.

Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct.”

Dixon’s argument assailing the propriety of giving instruction is much the same as that asserted against Instruction No. 4 in that Dixon contends since the Information charged him with acting “knowingly,” the court should not have instructed the jury on the definition of “intentionally.”

After again reviewing the proof rendered at trial as well as the other tendered instructions, we are convinced the error, if any, in giving Instruction No. 12 was not fatal. “Intentionally” requires even greater proof than “knowingly;” therefore, this instruction to Dixon’s advantage and no harm has been demonstrated.

III. Evidence of Other Crimes

In his remaining assertion of error Dixon alleges the testimony by two employees at St. Joseph School regarding his conduct and visit to their school should not have been admitted because it showed his involvement in another crime, namely, criminal trespass. We, however, find this testimony was properly admitted.

Generally evidence showing the commission of another crime by the accused, separate and distinct from the crime charged, will not be admitted to prove the guilt of the accused, Gross v. State, (1977) 267 Ind. 405, 370 N.E.2d 885; Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843; however, when such evidence is otherwise competent and relevant to the facts at issue it is admissible, particularly where the two crimes are related. Woodard v. State, (1977) 267 Ind. 19, 366 N.E.2d 1160; Mack v. State, (1978) Ind.App., 380 N.E.2d 592. Our state has long recognized that happenings near in time and place which complete the story of the crime are admissible under the theory of res gestae, despite the tendency of this evidence to show the accused’s guilt of another crime. Brown v. State, (1981) Ind., 417 N.E.2d 333; Gross v. State, (1977) 267 Ind. 405, 370 N.E.2d 885; Tapp v. State, (1980) Ind.App., 406 N.E.2d 296.

We find no error in admitting the evidence regarding the events which transpired at St. Joseph School since this clearly involved happenings near in time and place and helped to complete the story of the alleged offense. Although the trial court may have been incorrect when it intimated this testimony was admissible because it went to the question of identification, we believe the evidence was, nevertheless, properly admitted.

The judgment of the trial court is affirmed.

MILLER, J., concurs. YOUNG, J., dissents with opinion.

1 . Child molesting under Ind.Code 35 — 12-4-3(c) is defined as:

“A person sixteen [16] years of age or older who, with a child twelve [12] years of age or older but under sixteen [16] years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a class C felony. However, the offense is a class A felony if it is committed by using or threatening the use of deadly force, or while armed with a deadly weapon.”

2 . Pursuant to Ind.Code 35-42 — 4-3(c), a person sixteen years of age or older who performs or submits to sexual intercourse or deviate sexual conduct with a child twelve years of age or older but under age sixteen, commits child molesting. Consequently, under this statutory section a person may be guilty of child molesting by engaging in either sexual intercourse or deviate sexual conduct.

3 . Within appellant’s argument regarding the propriety of giving Instruction No. 4, Dixon also asserts it was erroneous to give this instruction because it improperly instructed “the jury on the offense of Attempted Child Molesting by means of attempted deviant conduct as a lesser included offense.” This assertion is specious.

It is readily apparent Instruction No. 4 neither expressly states nor even alludes that attempted deviate sexual conduct is a lesser included offense of the offense charged. Clearly, deviate sexual conduct and sexual intercourse are two different acts, Ind.Code 35-41-1-2; thus, this section of our child molesting statute, Ind.Code 35-42-4-3(c), embraces two distinct types of child molesting, see Addis v. State, (1980) Ind.App. 404 N.E.2d 59, neither of which would be a lesser included offense of the other.

Since we find no language within Instruction No. 4 intimating deviate sexual conduct is a lesser included offense, we reject Dixon’s argument that the trial court erred by so instructing the jury.

4 . “Deviate sexual conduct” as defined in Ind. Code 35-41-1-2 is limited to “an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person.”

5 . We cannot accept the dissent’s underlying proposition that the evidence is “equally supportive” of an intent to perform sexual intercourse or deviate sexual conduct. While it is true this court cannot be absolutely certain what sexual conduct Dixon intended to commit, we reject the dissent’s assertion that this necessarily makes it just as probable Dixon intended to engage in deviate sexual conduct as opposed to sexual intercourse. As Dixon points out in his brief, “Deviant sexual conduct and sexual intercourse by, definition, are mutually exclusive. The proof necessary to establish the commission of one is far different than that needed to show commission of the other.” We, therefore, do not believe it is “inconsistent” to conclude proof was introduced evidencing an intent to perform sexual intercourse but proof was not introduced showing an intent to engage in deviate sexual conduct.

6 . Our review has been confined to whether it was reversible error to give Instruction No. 4 since Dixon was not formally charged with deviate sexual conduct and proof was not rendered to support this charge. These were the only objections offered by Dixon at trial which have been advanced on appeal. We note that while Dixon contends giving this instruction may have misled the jury since they were instructed on an uncharged crime, Dixon never alleges the jury was otherwise misled due to the actual language used in this instruction.