*1 ISSUE V proceed
In an habitual offender
ing, proving that the defend burden of pardoned has or
ant been conviction set aside is on the defendant.
has been (1981) Ind.,
Havens (1981) Ind., Williams con 1018. Defendant's knowledge by
tention that lack two or he had
State's witnesses of whether pardoned previ or not his
been whether had set meets
ous convictions been aside absolutely
this has no merit. burden judg-
We find no reversible error. The
ment of the trial court is affirmed.
GIVAN, C.J., HUNTER, DeBRU- PIVARNIK, JJ.,
LER and concur. KNISLEY, Appellant
John J.
(Defendant Below), Indiana, Appellee
STATE
(Plaintiff Below).
No. 4-484A115. Indiana, Appeals
Fourth District. 13, 1985.
Feb. 22, 1985.
Rehearing March Denied *2 the evidence at trial sufficient to Was Knisley's of child mo-
support conviction felony? B lesting, a class
FACTS
August
9-year-old EL. came to
In
(Mrs.
Knisley), her
Rita
live with
Knisley,
step
her
grandmother, and John
grandfather. Two or three months after
Knisleys,
in
John be-
E.L. moved with
area,
tickling E.L. around her breast
gan
clothing.
Two or three months
outside
Knisleys told
tickling started the
after the
grow up, she could
had to learn to
EL. she
un-
in their bedroom when
were
they could teach her about sex.
clothed so
demonstrations,
or two of
After a month
with E.L. There
John had intercourse
such incidents after
ten or eleven
were
money. Knisley told
gave E.L.
which John
inci-
say anything about the
EL. not to
go
jail
if she did.
dents
he would
because
F.H.,
T.L. and
both of whom
E.L.'s aunts
living
molested while
previously had been
John, questioned her about
at home with
E.L.,
questioning
being molested. After
allegations against
TL. and FH. made
Knox, a caseworker
for Child
John to Pat
Beerbower,
Wayne,
Fort
for
Douglas O.
Wayne.
Ft.
Protective Services of
appellant.
officer
Smith of the
Pat Knox and
Gerri
Gen.,
Pearson, Atty.
Joseph N.
E.
Linley
Division,
County Police De-
Allen
Gen.,
Juvenile
Indianapo-
Stevenson,
Atty.
Deputy
investigated
matter.
Then
lis,
partment,
appellee.
for
charges
filed and this case ensued.
trial, John,
direct,
testified he had
At
CONOVER, Judge.
EL. On
sexual relations with
not had
(John)
appeals
Appellant
J.
John
to sexual
John admitted
cross-examination
Superior
Allen
jury
conviction
relations
T.L. but denied
relations with
felony
B
molesting, a class
for child
the trial court al-
FH. On rebuttal
with
35-42-4-8(a).
under IND.CODE
precluded tes-
testimony by FH. but
lowed
Affirmed.
convicted of
timony by T.L.
John was
felony
B
child
class
ISSUES
Department of
to the Indiana
committed
our re-
Knisley presents three issues for
eight years.
Corrections
view:
AND DECISION
DISCUSSION
1. Did the admission
Knisley's Past
Testimony
Sexual
I.
relationships
T.L. and
with
Relationships Not Violative
FH. violate IND.CODE 35-37-4-47
IC 35-37-4-4
testimony as to
admission of
2. Was the
Knisley first contends admission of
relationships with T.L. and
Knisley's sexual
T.L. and
with
evidence of his
scope cross-ex-
FH. outside the
error, claiming IC 85-
and rebuttal?
amination
FH. was reversible
prohibits
protect
37-4-4
such evidence in a sex
testify
statute is to
those who
disagree.
some matter
such cases from
crime trial. We
history exposed
their entire sexual
to the
Commonly
Rape
referred to as the
Shield
jury
impeachment
as an
tool.
per
When
statute,
provides
pertinent
IC 85-87-4-4
past,
mitted in the
the real focus of the
part:
*3
trial became diffused as the
empha
trial's
(a)
prosecution
See. 4.
In a
a sex
sis shifted from the accused's sexual con
85-42-2:;
crime as defined in IC
duct to that of the victim or a witness.
(1) evidence of the
past
victim's
sexual
Limitation of
purpose
this diffusion is the
conduct;
Rape
of the
Shield statute. Skaggs, 438
(2)
past
evidence of the
sexual conduct
N.E.2d at 306.
accused;
of a witness other
than the
testimony
FH.'s
Knisley's past
as to
sex-
ual conduct
prohibited by
was not
IC 85-
(4) opinion
past
evidence of the
sexual
87-4-4.
conduct of a witness other
than the
accused;
Testimony
II.
as to
Re-
Sexual
lations with TL. and F.H. within the
(6) reputation
past
evidence of the
sex-
Scope
Permissible
Cross-Examina-
ual conduct of a witness other than the
tion and Rebuttal
accused;
Knisley
testimony
next contends the
admitted,
may
may
not be
nor
reference
regarding his sexual relationship with T.L.
made to
presence
be
this evidence
scope
and FH. was outside the
jury,
of the
except
provided
in this
cross-examination and rebuttal. We disa
chapter....
gree.
protected
himself is not
from
During
case-in-chief,
its
the State
history divulged
his
sexual
presented
Knisley's prior
no evidence of
clearly
since the statute
excludes the ac-
However,
sexual acts with TL. and F.H.
from
protection,
eused
its
85-37-4-
ICof
during
Knisley by
direct examination of
4(a)(2)
Knisley, however, argues
above.
counsel, Knisley
defense
stated he had not
history
his
is intertwined
that of TL.
with
charged.
During
committed
crime
Thus,
opines,
and F.H.
introduction of
cross-examination,
prosecutor
asked
history
is also
of their
introduction
his-
Knisley if he had committed
acts
similar
tory;
witnesses,
because
their
with T.L. and FH. After defense coun
history
sexual
is excluded
the statute.
objection
question
beyond
sel's
T.L., Knisley's
As to
contention is with-
overruled,
seope of cross-examination was
merit,
out
IC 85-87-4-4 restricts testimo-
prior
admitted to
sexual relations
ny only of
prior
T.L.
denied
with
but
relations with
or
victim witnesses other than the accused.
Also, during
rebuttal,
FEH.
the State's
Since T.L. was neither the victim in this
Knisley raped
FEH.testified
she
when
testify
witness,
action nor did she
as a
testimony
Her
unquestionably
was 17.
clearly
apply
statute
does not
to her.
would have
been admissible
State's
FH., Knisley's
interpretation
As
case-in-chief under the
sexual in
legislative
this statute would violate
intent
State, (1984)
stinct rule.
v.
See Jarrett
designed
in this area. This statute was
Ind.,
1097;
State,
465 N.E.2d
Lawrence
protect
vietims,
witnesses as well as
not to
Ind.,
provide defense for
the accused. Forres
State,
(1982) Ind.,
consistently
While we
held evi
ter v.
440 N.E.2d
have
475,
479;
State, (1982)
dence of other criminal
Skaggs
Ind.App.,
activity
438
is inadmis
Here,
sible,
testimony
except
may
it
where
be used to
intent, motive,
FH.
experiences
purpose, identity,
concerned her sexual
with
or com
Rape
plan,
the accused. The intent of the
or
supreme
Shield mon scheme
our
court has
561, 563, 282 N.E.2d
in sex
exception thereto
carved out an
cross-examination lies within
scope
showing a "de
crime
to those acts
cases
the trial
discretion of
court and
the sound
Jarrett,
praved
instinct."
only for an abuse thereof.
will
reversed
State, (1982)
N.E.2d at
Caccavallo
State,
(1984) Ind.,
Blankenship v.
775, 776;
Grey v.
1311, 1313;
Moritz v.
439, 446, 404 N.E.2d
App.,
McKinley
Ind.
1353. Such acts need not be identical
State, (1984)
Ind.App., 465 N.E.2d
charged.
It is sufficient if a
permissible
as to all
Cross-examination
Jarrett,
similar
is demonstrated.
stages
matter covered in
also, Lawrence,
465 N.E.2d at
see
examination, including any matter
direct
of the commis
517 sufficiency questions we reviewing deviate previous When of evidence troduction judge nor evidence reweigh the neither defendant after during rebuttal acts We examine the credibility act. of witnesses. charged committing the denied had to the most favorable light in a evidence 195 State, (1964) 245 Ind. Lamar inferences to be for the Achor, J., speaking all reasonable State N.E.2d charged act affirm if there is denying the We court, therefrom. stated drawn credibility of probative value placed evidence defendant substantial there question and charged. Hoss witness prosecuting each element similar regarding other evidence fore the Ind., N.E.2d man v. sup tending to acts was admissible sex 418; Kalady v. prosecuting wit credibility of port State, (1984) Killian N.E.2d at Id., at ness. Ind.App., 467 acknowledges the uncorroborat- Lamar, supreme our holding in its Since complaining witness testimony of ed de- developed the recognized and has court conviction and to sustain a sufficient allowing the rule instinct praved penetration. act of testified to an victim depraved acts introduction If, as Knis- his contention. This is fatal act he committed defendant penetration notes, testified to the victim ley supports Therefore, also Lamar charged. testimony, even if uncor- and the victim's different although on a here holding our the con- roborated, to sustain is sufficient theory. by Knisley), then (as acknowledged viction *5 our review. nothing left for there is however, should not holding, This general abandoning the construed take Knisley would testified EL. specific and reputation evidence only rule her take off and have into the bedroom her crimes, dis involving infamous convictions her lay the bed with and pants used may be statements honesty, or false He ceiling. the pointing toward knees Rather, credibility. impeach a witness's to get top pants, his pull down then would trials, it is in sex crime hold we her. "monkey" inside his place and of her a de testimony of the or rebut impeach part of dolls, the E.L. described a set of On by cross-ex denies fendant who "monkey"; it was Knisley called body establish past acts which amining him as vagina of male doll and of the penis Evidence instinct. depraved sexual his concedes, doll. As the female depraved sexual demonstrating a complain testimony of the uncorroborated also as rebuttal admissible then becomes is a witness, when such witness even ing during evidence, though not offered even a conviction sustain minor, is sufficient case-in-chief. the State's v. molesting. Morrison for child Finchum 462 N.E.2d III, Conviction Evidence Sufficient 307; State, (1984)Ind.App., 463 evi Knisley maintains Finally, Ind.App., Newton support insufficient trial was dence at Knisley goes Although 736, 745. age concedes the conviction.2 in E.L.'s contradictions argue alleged toon contends but under was the victim re us to argument invites testimony, such submitting to performing element judge the eredibili evidence weigh the con or deviate sexual intercourse invita We decline witness. ty specifically, proven. More duct tion. evi insufficient there was Knisley contends disagree. We penetration. Affirmed. dence or deviate sexu- intercourse to sexual part: submits pertinent provides, IC 35-42-4-3 B a Class child commits al conduct who, (a) child un- person with a A Sec. 3. Felony. ... age, performs or years of der twelve mony. Merely denying he committed the MILLER, P.J., concurs. instant crime does not automatically allow YOUNG, J., opinion. dissents with inquiry into the accused's entire relevant YOUNG, Judge, dissenting. history. I dissent. The sexual instinct I believe the trial court abused its discre- merely rule makes evidence of deviate tion requiring Knisley to ques- answer sexual acts charged relevant to regarding tions F.H. and T.L. over his ob- crime. It does not alter the well-estab jection. I further believe that cross-exami- lished rule that cross-examination must be nation of the accused on the matter scope limited to the of the witness' direct deviate acts is reversible error See, testimony. eg., Lambert v. State when such questioning beyond scope (1983), Ind., Ingram would, his direct testimony. therefore, I (1981), Ind.,
State Dean v. reverse and remand this cause for a new (1980), State trial. Therefore, although questions regarding sexual acts with FH. and TL. relevant, were not within the seope of his direct and should not have been allowed. majority by denying believes that victim,
molested the Knisley opened his
entire relevant sexual for cross-ex- amination. I agree. Although cannot Phillips B. JOHNSON one Johnson and/or purposes the main of cross-examination Eaton, Attorneys Law, & At is to elicit additional facts from the wit- (Defendants Appellants Below), ness, those facts must be related to the witness's testimony. direct See McCOR- Eugene CORNETT, Appellee P. § MICK, (2d 1972). EVIDENCE ed. (Plaintiff Below). *6 Knisley's sexual activities with FH. T.L. were not alleged related moles- No. 1-384A72. Furthermore, tation of the victim. Appeals Indiana, made no statement on direct examination First District. interpreted could be opening door to subjects. those Feb. The state was entitled to Rehearing Denied March
alleged depravity through FH. and TL.1 sexual in-
stinet rule allows such evidence in order to
bolster credibility of the prosecuting case, witness in a sex crime whose testimo
ny standing may alone seem unnatural or
improbable.
(1964),
See Lamar
v. State
not, however, allow the inquire state to into
the accused's deviate acts on cross-ex
amination unless opens the accused himself
the door to subject by his direct testi testimony properly
1. Their belonged given accused opportunity for surrebuttal. case-in-chief, state's in rebuttal. Our su- (1964), Lamar v. State preme court procedural has held that such a irregularity long is not harmful error as as the