*1 implies agree- law an While the ticipated. rendered, im- pay for services Gary
ment FINNEY, Velman may rebutted evidence that be Defendant-Appellant, plication under the services circumstances accepted were such as to rendered Indiana, Plaintiff-Appellee. STATE of parties that the were deal- the idea exclude of a contract. the basis ing on No. 3-976A216. Indiana, Appeals Court of portion at bar case District. Third was of nature of some performed
labor might do neighbor gratuitously thing one 5, 1979. Feb. remaining was so and the labor another for impossi that it would be vaguely described upon value But of place any it.
ble is fact that importance
determinative not show intention to evidence does part appellants
pay for labor compensation on the any expectation of reason appellee. And it for that
part judgment appellee in favor of must reversed. King appellee in favor of judgment
The ap- in judgment favor
is reversed. The is or- trial court affirmed.
pellants conformity in with judgment to enter
dered opinion.
this part. in part and affirmed
Reversed
STATON, J., concurs.
GARRARD, J., opinion. concurs with P.
GARRARD, Judge, concurring. Presiding affirming judgment
I concur reversing I concur
appellants. also the ma- appellee for the constituting transcript disclose
terials support the court’s which would
no evidence is im- While that
finding appellee. opinion, should be majority in the
plicit reweighing is not that this court
clear
evidence.
478 Aungst, Valparaiso,
Ronald Y. William E. McKenna, Gary, for defendant-appellant. Sendak, Theodore L. Gen., Atty. Lesly A. Bowers, Deputy Gen., Atty. Indianapolis, for plaintiff-appellee.
HOFFMAN, Judge.
Defendant-appellant Gary Velman Fin-
ney (Finney) was
in jury
convicted
trial of
rape to which he was sentenced to a deter-
period
minate
of eight years.
appeal
His
following
raises the
issues for review:
(1)
whether the
shield statute is un-
constitutional;
(2) whether the trial court abused its dis-
cretion when it
the scope
restricted
prosecu-
cross-examination of the
trix;
(3)
prosecution
whether the
used improp-
er
impeaching
tactics in
the defend-
ant;
(4) whether the trial court erred in deny-
ing defendant’s
motion for
evidence;
(5) whether there was sufficient evidence
support
the rape conviction.
victim of the
testified that
hitchhiking
while
on U.S. Highway 6 on
17, 1974,
September
accepted
a ride
agreed
from the defendant who
to drive her
to the Liberty Farms Trailer Park where
479
driving
to her
eludes the
cross-examination.
But instead
she lived.
court,
off of
Finney turned
U.S.
Davis v. Alaska
U.S.
trailer
surrounding
area for
around
S.Ct.
L.Ed.2d 347. A number of
and drove
stopped
his Volks-
an hour until
almost
decisions have held such
to cross-ex-
building. Plac-
an abandoned
near
wagen
infringed upon
amination to
where a
*3
throat, defendant
ing knife at the victim’s
a
wholly precluded
defendant’s
is
counsel
breast,
began
to
but when
grabbed her
from bringing
before the
on cross-
alone,
put
the
to leave her
at him
scream
examination relevant and substantial evi-
he would take
leg
his
and said
knife under
credibility
bearing upon the
of a
dence
However, he
her to a
then drove
her home.
See,
against the
crucial witness
accused.
his car and told
parked
where he
cornfield
Alaska, supra;
Davis v.
v. Duhart
U.S.
if she
to
would hurt her
tried
her that he
7;
Cir., 1975),
(6th
Snyder
511 F.2d
v.
to
ordering the victim un-
escape. After
224;
Cir.,
(4th
1975),510
Coiner
F.2d
U.S.
car,
and climb in the backseat
dress
Cir., 1974),
(9th
v. Harris
“It
effectively cross-examining the
in-
confrontation
right of
Amendment
protect
three witnesses cannot
sustained. We
the prosecutrix from harassment
requiring
would
be understood as
might
if her prior
arise
sex life was
disclosed in
closely
to make an offer
court. Another
counsel
related
justification
shield laws
substantiate a confrontation claim this
is that
they will
sort,
requirement
prevention
aid in crime
any such
would be
as
victims, knowing that
law,
protects
statute
contrary
present
Strickland v.
them from the
embarrassment
introduc-
N.E.2d
244. What
tion of
of previous
sexual activity,
require
showing
is the
of an
we do
actual
will be encouraged
report rape
offenses.1
upon cross-examination.”
impingement
light
legitimate
policies,
of these
state
Applying
rationale
Borosh and La-
cannot be said
the disparate
treatment
pre-
genour, since
defendant
of this statute is without a reasonable basis.
impeaching
prosecutrix
cluded from
*4
grounds
other
such as
convictions of
Defendant’s last assertion of consti
felonies,
tutional error
that
(See:
rape
v. An-
enumerated
Ashton
shield law
51,
introduced a new rule
210),
of evidence
derson
258 Ind.
N.E.2d
him,
made it easier to convict
bias,
that as to
prejudice,
reputation
or
for truthful-
offenses committed before
passage,
its
it is
veracity,
ness or
was not a
deni-
there
total
post
ex
plain
facto.2 “The
and obvious
al of
on the
of the
cross-examination
issue
meaning
is,
prohibition
this
that the leg
Hence,
prosecutrix.
de-
law,
pass
islature shall
any
after a fact
any
impinge-
actual
fendant has
shown
by
citizen,
any
done
which shall have rela
ment of his
to cross-examine.
fact,
to
that
so as
punish
to
that which
he
Defendant’s contentions that
was
done;
was innocent when
or
add
to
to the
denied his
to effective assistance of
punishment
criminal;
of that which was
jury
to trial
by
counsel and
was
crime;
malignancy
to increase the
of a
or to
precluded
presenting
all the relevant
evidence,
retrench the rules of
so as to
of the case
to
must also
make
easy.”
conviction more
Strong v.
rejected
arguments
since these
were
1 Blackford 193. The ex post
inability
explore
based on his
to
the credi
applies
facto clause3
only to laws which
bility
complaining
of the
witness.
deprive
person
a
accused or convicted of a
of a
personal right
crime
substantial
argument is
Defendant’s next
he would have had at the time he commit
equal
shield
rape
statute violates the
ted the offense.
the inquiry turns on
protection clause of the Fourteenth Amend
changed
whether
statute
a “substantial
invidiously
ment because
discriminates
right”
procedure.”
or “mere
Warner v.
against rape
This allegation
defendants.
premised on
only
the fact that
cases
rape
are
type
there limitations on the
of charac
Robinson v. State
452,
presented.
ter evidence that may be
Since
Supreme
the Indiana
Court held that a stat-
rape
suspect
defendants are
anot
classifica
ute permitting the use of general moral
tion,
equal protection
requires
clause
character evidence
impeach
witnesses
there
be a rational and reasonable was not an ex post facto law
grounds
on the
basis for the
classification
that it bear a
merely
statute
furnished
rule of
relationship
purpose
fair
to the
of the stat
practice applicable to
trials
offenses
City
Logansport (1977),
ute.
Geyer
committed before and
its passage.
after
State,
nature.
Since
defendant,
open
examination,
to the
defendant asked her
impeachment
if she
con-
restricting evidence of
sexual
had ever been to Porter Memorial Hospital
deny the
responded
victim did not
defend-
and she
in the
of the
affirmative.
duct
right of confrontation. When defense counsel asked her what
any
ant
substantial
legal
for,
hospital
create endless confusion
had been at
It would
the State
every
objected
grounds
if
case was to be conduct-
proceedings
question
that the
with the rules of
scope
in accordance
exceeded the
ed
direct examination.
However,
in existence when its facts arose.
later in
practice
the course of cross-exami-
nation
prosecutrix,
of the
defendant was
Defendant contends that
the trial
permitted
her,
question
objec-
without
its
when it restrict
court abused
discretion
tion, about her medical examination at the
ed the
of cross-examination of the
hospital
evening
rape.
The trial
examination,
prosecutrix. On direct
court properly
objec-
sustained
State’s
prosecutor asked the witness whether she
hospital
tion since
visits to the
other
marijuana
day
she was
had smoked
than the date of the medical examination
replied that she had not.
raped, and she
On
would not be relevant on the
cross-examination,
sought
guilt or innocence of the defendant.
the witness whether she had
elicit from
marijuana to which the
Defendant’s next allegation
ever smoked
of er
*5
objected
being
scope
as
outside the
of direct
ror is that the trial court abused its discre
properly
The trial court
sus
tion when
permitted
prosecution
examination.
the
objection. Clearly, the
the
tained the State’s
ask
defendant on cross-examination
judge
prior
has broad control over the
whether certain
by
trial
statements made
of cross-examination when it is him under oath were
and content
lies. At defendant’s
highly emotive
previous
rape,
directed into such
areas as
trial for the
he testified re
use,
carry
very
garding
alleged
with their
the
narcotics
route that he drove
prejudice.
dangers
day
rape.
nature serious
of undue
with the victim the
of the
How
ever,
Questions pertaining
drugs
testimony
to the use of
his
subsequent
at the
trial
purpose
attacking
testimony
when asked for the
conflicted with his
the
first
proper
are
trial
the
credibility
prosecutor
Finney
the
of the witness
confronted
at the time of the event to which with
show that
these inconsistencies. When a defend
testified,
powers
testify
the witness
her
of observa
ant takes the stand to
in his own
behalf,
memory
impaired
subject
tion
so that her
he becomes
to all the
rules
experience
govern
and account of the
the cross-examination of wit
recollection
(1976),
might be inaccurate.
In Commonwealth
nesses. Pearish v. State
264 Ind.
217,
(1976),
Gaddy
Consequently,
468 Pa.
362 A.2d
the
asking
credibility
defense counsel from
of the defendant as a witness is
prohibiting
subject
you
drugs?”
by
“Do
take
was held
to attack
the use of
incon
prosecutrix
to be an abuse of discretion on the
sistent statements. Land v.
only Ind.App.,
fied that defendant forced
point to undress and submit to sexual inter
course with him in his automobile. Fur
ther, she that she did not consent testified intercourse; pen
to the that the defendant her; *6 frightened
etrated and that she her with his knife if she
would hurt resisted
his advances. there was substantial probative support the evidence of value to DEPARTMENT OF FINANCIAL INSTI- by the trier of fact. In Dixon v. conclusion TUTIONS, Respondent-Appellant, State, supra, showing that assail v. ant drove the victim in his car with a knife and threat in his hand and near head WAYNE BANK AND TRUST COMPA- comply harm her if she with ened to did NY, Petitioner-Appellee. was sufficient his demands No. 1-1277A303. against intercourse was force and will of the victim. Indiana, Appeals Court of that a conviction It is well settled First District. rape may testimony rest on the Feb. 1979. victim alone. Harris v. State Therefore, the failure of present the State to a medical examination story
report prosecutrix’s to corroborate the sufficiency
does not affect of the evi Taylor Ind.App.
dence.
384,
No reversible error been appealed of the conviction
from is affirmed.
Affirmed.