Gilman v. State

282 N.E.2d 816, 258 Ind. 556, 1972 Ind. LEXIS 603

• Court: Indiana Supreme Court
• Decided: June 1, 1972
• Docket: 1171S336
• Status: Published

Opinions

Hunter, J.

This is an appeal by Amos R. Gilman, appellant (defendant below), from a conviction for Assault and Battery with Intent to Gratify Sexual Desires. On December 29, 1970, appellant was charged by affidavit with violation of IC 1971, 35-1-54-4 (Ind. Ann. Stat. § 10-403 [1971 Supp.]) to which, on March 19, 1971, appellant entered a plea of not guilty. Trial to the court commenced on June 11, 1971 and appellant was found guilty as charged. He was sentenced to the Indiana State Prison for a term of not less than one (1) year nor more than five (5) years. Appellant filed a Motion to Correct Errors which was overruled on August 26, 1971, and this appeal followed.

The only issue raised in this appeal is whether it was erroneous for the trial court to allow the introduction of evidence of appellant’s previous sodomy conviction in its case in chief. In this case, appellant, a forty-eight (48) year old man, allegedly lured a twelve (12) year old boy into his car, drove to an isolated spot, and committed the act of fellatio upon him. Thus, although appellant was not charged with sodomy, the nature of the offense was the same as that of sodomy.

It is now clearly established that in a prosecution for a sex crime it is admissible to introduce evidence of prior similar sex offenses as evidence tending to show a depraved sexual instinct. Miller v. State (1971), 256 Ind. 296, 268 N. E. ; Kerlin v. State (1970), 255 Ind. 420, 265 N. E. 2d 22; Woods v. State (1968), 250 Ind. 132, 235 N. E. 2d 479; Lamar v. State (1964), 245 Ind. 104, 195 N. E. 2d 98; Borolos v. State (1924), 194 Ind. 469, 143 N. E. 360. The prior conviction was for the offense of sodomy and the facts of this case involve a similar offense. It was therefore not erroneous to admit evidence of the prior conviction in this instance, and the judgment of the trial court must be affirmed.

Judgment affirmed.

Arterburn, C. J., and Givan, J., concur, Prentice, J., dissents with opinion in which DeBruler, J., concurs; DeBruler, J., also dissents with separate opinion.