Lehiy v. State

4§1] three weeks Appellant's after Brief was Appellant

filed. did not move to dismiss

the allegedly charge defective at the initial

hearing provided by as Ind.Code 35-84- § (Burns 1-4 Supp.1984), nor did he raise this

argument at his arraignment second or in

his Motion to Correct Errors. The issue is

therefore being waived as untimely raised. (1986), Ind.,

Salahuddin v. State 292, 296; (1986),Ind., Bond v. State Furthermore, 507.

purpose of an information is to advise the particular

defendant of the crime charged

so that he prepare defense; can absence

of detail is fatal if the phraseology

misleads the defendant or give fails to him

notice of the charges against him. McGee 538. present information cited attempt statute, and Appellant stated that attempt-

ed to murder the victim shooting the

victim in the back with handgun

inflicting bodily serious injury. The charg-

ing information here was not defective.

This cause is remanded to the trial court

for resentencing in light of Ind.R.P.C. (1984). is, The trial court all other

respects, affirmed.

GIVAN, C.J., and DeBRULER and

DICKSON, JJ., coneur.

SHEPARD, J., participating. LEHIY,

Brian Appellant (Defendant Below), Indiana,

STATE of Appellee (Plaintiff Below).

No. 50A03-8601-CR-30.

Court of Appeals Indiana,

Third District.

Dec. 1986.

Rehearing Denied Jan. Black,

Tom A. Plymouth, appellant. for Linley Pearson, Gen., E. Atty. Jody Cus- son-Cobb, Deputy Gen., Atty. Indianapolis, appellee.

HOFFMAN, Judge. Defendant/appellant Lehiy Brian appeals jury his conviction pursuant to 35-42-4-1(a), IND.CODE a Class B felo- ny. presents He three issues for review are, which as restated: (1) whether the trial court erred ad- mitting evidence previous rape of a woman; defendant of another (2) whether the trial court erred in ad- mitting concerning poly- graph examination administered to defendant; and (8) whether there was sufficient evidence support the verdict. Lehiy alleged rape with the sixteen-year-old girl, LP., of a on March walking 1985.1 L.P. was to her cousin's home, approximately three or four blocks road, country down a because she had had argument an with her boyfriend on the telephone. alleged She the defendant came up grabbed to her and her arm began kissing pulled her ear. He her over a fence struggle and after a pin he was able to her ground. pulled He pants down her and had intercourse with her. She testified penetration. there was She was then able to break free of her assailant and run to her home. L.P. did anyone not tell immediately incident and discarded her clothing. boyfriend Later L.P. told her parents then her par of the incident. Her police ents took her to the station and the investigation begun. During the at tack, LP. did rapist, not see the face of the clothing, but she was to describe hair able alleged originally 1. The date of the events was determined that the actual date was March indicated to be March 1985. It was then 1985. (1984),Ind.,

texture, build and the fact the attacker had Watkins v. State a mustache. she Even knew the her,

defendant who lived close to went the same school and rode the same school In order excep to come within the bus, she was not sure who the attacker was scheme, plan tion to show there must be until a month and a half later when she similar, characteristics so unusual and dis defendant, saw the heard his voice and saw they tinctive that are earmarked as the body. positively build of his She then person. acts of one v. Willis identified the defendant Lehiy Brian as her 268 Ind. 374 N.E.2d 520. The use of attacker. force is not alone sufficient to meet this At trial the State offered evidence of a criteria. Malone v. State 441 prior by act in defendant which he N.E.2d 1339. The facts this case and attempted to another woman. The those revealed in the testimony prior of victim of that incident was allowed to re- above, acts as indicated were not distinctive ruling by pre-trial this evidence after a late enough or similar to come within this ex the court that the evidence was admissible ception. Therefore admission of the evi pursuant depraved to the sexual instinct prior dence activity of sexual could not be exception general to the excluding rule pursuant sustained exception to this to such evidence. The witness then testified scheme, intent, plan, show ete. The evi to an previous incident some 21 months to dence could have been admitted on the charged. incident The witness was by court, basis stated the trial to i.e. show working camp at a and took a bike ride. depraved sexual instinct. It is therefore passed defendant, She who was a com- necessary application to assess the plete her, stranger going to opposite depraved exception sexual instinct to this direction and began he to follow her. He rape. case where the is pulled his bike in grabbed front of her. He Judge dissenting Garrard asserts in his her off the bike and took her into a wooded opinion prior that evidence of a forcible her, area where he disrobed partially dis- depraved is to admissible show sexual himself, attempted robed intercourse However, opinion instinct. we are of the which he was unable to achieve. The wit depraved exception sexual instinct does ness then dressed and left without interfer- apply in charge not a case where the is ence the defendant. rape only, and therefore the evidence of a argued pre-trial defendant at a hear- prior rape, "earmarking" forcible without ing, trial, during in his motion to correct traits, improperly admitted. appeal errors and in his brief on that such improperly evidence was admitted into evi- Initially, the law is clear that evi dence. prior dence of activity criminal sexual is The ruleé as to evidence of other crimes pursuant admitted depraved to the sexual are well established: exception instinct where incest or general

''The rule is evidence which charged. is In Cobbs v. State 264 guilt shows or tends separate, to show Ind. 338 N.E.2d the defendant was independent charged unrelated and is kidnapping rape. crimes A wit proof guilt permitted testify admissible as of in the ness was instant to that the de case. Ind. [334], Henderson 403 N.E.2d 1088. There are v. State, (1980) ^[273] fendant had month raped her charged approximately offense. one In exceptions to the rule which determining allow evi the evidence was admissi dence of crimes to be admitted common, ble due to a distinctive feature purpose intent, motive, showing rapes the two which to was relevant estab identification, purpose, identity, common scheme lish the Court stated: plan depraved or or a sexual instinct. "Generally, activity evidence of criminal State, (1974) Austin v. other than that is inadmissible 319 N.E.2d 130." question guilt. on the such 454 intent, State, (1964) to show may admitted be v. Lamar

State, (1974) N.E.2d 570. motive, mon scheme or show omy (1970) (1968) 130; Watts depraved sexual Gilman 255 purpose, incest is State, (1950) 229 Ind. Ind. ^[262] It plan. Kerlin 816; identification, is Ind. charged. Austin v. freely admitted instinct when sod [529], Woods N.E.2d 479. (1972) v. or com State, State, Ind. 22; that such evidence victions involved ted as Court exception to the similar course and actions 195 N.E.2d has allowed tending sex offenses was admitted involving abnormal sexual for similar offenses sodomy. More citing Borolos v. 98 evidence show a general 143 N.E. 360 which regarding other permissible recently rule, State, to be admit stating sexual (1924) as an inter con this Id., it was the defendant when ness witness the evidence fied to did plan or scheme intent, teen stated: addressed evidence constituted determined In charged that because relevant to show was ed to show conclude those charged, would have testimony was was tity, or common for sary In 1980 (Footnote on the In this since she was disagree. "The State Montgomery 388 N.E.2d testified as to years this purpose, to show relevant to the charged. made no claim of improperly admitted. cases which have part of the defendant. of N.E.2d case, not show the issue of testimony statutory old that the prior omitted.) could be admitted was It claims that intent, force or violence Supreme and since the which conduct would at 633-634. motive, identity neither seems fourteen, the admissible v. State sexual acts Therefore, and depraved sexual prior sexual conduct of offense, scheme or any only basis the witness was four- motive, challenged testimony to be been apparent kidnapping. sodomy nor incest issue of her of the admission Court force. The Court it was allowed evidence even (1980), 274 Ind. these defendant was only if it tend statutory rape relevant. We testimony purpose, had incident testi- in Mrs. upon or common The Court They claim of Indiana plan. We two or consent not neces- that even elements, any identity." to show instinct Pope's A cases. which been iden have wit- of jury instruction Again in Daniels v. State peach the defendant's ment and the Daniels was allowed conviction evidence determine of a ever, Austin v. State, (1975) Id., was plan, which we must effect of the admission often N.E.2d 130. Such would tification or rule. would old, this case. motive, der instinet when It is true charged. Daniels v. 408 N.E.2d overwhelming." prior rape conviction. the Court also 412 N.E.2d acceptable and that to any force involved. [29], 408 N.E.2d if it could show since show In that have been an not the defendant's identity view this evidence that if these acts State, (1974) charged with require It could be admitted intent, motive, purpose, it does not. The admitted evidence a common scheme or 264 Ind. regard it could be admitted which exceptions at 796. girl properly admitted sodomy or or prosecute that offense could be considered addressed a prior sexual conduct. was fourteen common scheme or offense of similar crimes also the trial court showing that there indicated the State, (1980) credibility. How- of this rape and confine- 1244; intent, purpose, depraved sexual (1980), 274 Ind. 338 The Court held However, here occurred, they in relation to N.E.2d challenged prejudicial testimony incest statutory consisted Cobbs only un- general to im- years prior plan. ^[274] iden 632; had v. credibility. In hold- his as instinct as well depraved prior convictions to show error, of- albeit ing involved similar to be sexual instinct have the instruction harmless, stated: fenses. the Court [I)t language that the "... is true stat- dent and distinct crimes in establishing ing prior rape that the conviction could guilt of a defendant is that such depraved be considered to show a sexual evidence is except inadmissible where rel- instinct was incorrect under the cireum- (1) intent, (2) motive, evant to show: (8) sodomy stances of this case where or (4) purpose, identification, (5) common incest had not been ... [.]" plan. (1950), scheme or Watts v. State Id., 408 N.E.2d at 1246. and cases there cited. fairly These three cases indicate clearly prior that evidence of sexual crimi held, however, It has been that the above activity nal used to show sexual apply rule does not where the ele chief prosecutions instinet is admissible in ment of the offense is illicit intercourse incest, prosecutions but sexes, between the and that such evi addition, rape only. evidence of the dence subsequent acts is activity permitted sexual has been subject admissible exclusion the dis prosecutions molesting, for child cretion of the trial court remoteness. Ind., Brackens State Robbins 536; N.E.2d 691." Jarrett Austin, supra, 319 N.E.2d at which to 1976 and.the addition upheld the trial court's decision to allow prose of IND.CODE 85-42-4-8 were the evidence. did Austin involve sodomy cuted as or assault.2 The rationale sodomy charge Robbins, a and supra, re exception for the to the usual exclusion of by lied on the court prosecu Austin was a the evidence is to the credibility bolster sodomy tion of only involving a twelve- prosecuting the witness a situation year-old girl. (1968), Meeks v. State standing where the accusations or the acts 629, Ind. distinguished N.E.2d was improbable, alone seem or where the acts applicable Austin and was not are crimes ix in nature continuando and it case, present Austin or the case. highly probable is similar acts have oc Watkins State curred before or will occur after. State v. N.E.2d the charged defendant was (1943), Robbins burglary attempted rape. with and The particularly prev 691. These elements are testimony sepa- trial court admitted of a involving incest, alent sodomy cases rate, independent rape "help to establish molesting. application child Thus character, appellant's operandi modus exception permit to admission of the evi intent," jury and the was admonished to only prosecutions dence for these crimes consider the evidence as it related to understandable. cases which are those factors. Even the Court by Judge relied on Garrard in his dissent general states the rule of exclusion and the ing opinion do not dictate a different con exceptions rule, the to the Court then ana- clusion. lyzes charged the similarities in the crime (1974), In Austin v. State separate crime and the revealed and con- 319 N.E.2d 130 the defendant was cludes: sodomy, rape kidnapping and the "These similarities of conduct are suffi- testimony trial court of a allowed similar support cient to an inference that the sexual contact with another victim on the person same committed both offenses. day charged. same as that The Court stat admitting not err in The trial court did generally: ed the law testimony the of C.G." general "The rule in the ad- Indiana for indepen- separate, mission of evidence of Id., at 515. proscribing gratify desires was re- IND.CODE 35-1-89-1 with intent to sexual pealed by SEC. 24. Acts P.L. 24; was Acts PL. SEC. repealed by fondling proscribing IND.CODE § 35-1-54-4 depraved Therefore the sexual showing 'depraved instinet ex- sexual instinet' [cita ception was not relied on in Watkins omitted)," tion to the upheld Court the admis admit the evidence or to affirm the admis- sion of the evidence to bolster prosecut

sion. ing witness's testimony after the defendant denied allegations. Lawrence (1984), Ind., 464 prosecution involved a on four These cases do not seem to require the counts of child molesting. Evidence of a interpretation that evidence of prior crimi- by committed the defendant was ad nal sexual conduct to depraved show sexu- mitted and Supreme Court affirmed the al instinct is admissible in all cases involv- admission pointing out the similarities in ing prosecution for a sex crime. Such an aggressive present attitude in both crimes. expansive interpretation is unwarranted was for child mo and would conflict with the language quot lesting rape. not ed above Cobbs, from Montgomery and Allbritten Daniels. Therefore we hold the evidence 317 N.E.2d 854 involved a charge, but criminal sexual conduct was not it was a of a four and a year half old. admissible to show sexual instinet The issue before Supreme Court in in a case where only rape being prose- volved the propriety of allowing the testi cuted. mony police of a officer who explained the The State argues that even if the evi pre-trial investigation procedures and indi dence was erroneously admitted, the error cated a mug shot of appellant had been harmless, relying on Howell v. State by identified the victim of an rape. earlier 413 N.E.2d 225. How The Court simply states the evidence was ever, present case is not comparable to impermissibly prejudicial because in Howell. In Howell the evidence admitted such cases evidence of similar crimes was an admission po defendant to would be admissible anyway. The Court lice as against accusations him of does not indicate the basis for such admis conduct similar to what was charged. sion but makes citation Robbins, supra, Thus there was no presented evidence by involving sodomy of year a old, twelve Bor another victim as to acts against committed (1924), olas v. State 194 469, Ind. 148 N.E. her. Also the against Howell, 360 involving a child molesting prosecution even without consideration of question the and The State v. Markins (1884), et al. 95 evidence, able just was not substantial but Ind. 48 Am.Rep. 783 involving incest. overwhelming. Under such cireumstances, Finally, Judge Garrard makes citation to admission of the evidence was harmless. Knisley (1985), v. State Ind.App., N.E.2d 513. Knisley involved the charge In present the case the evidence of child molesting, the victim being the is far from overwhelming. The determina granddaughter of the defendant's wife. by tion the jury depended large part on The two aunts of the testified, the credibility of the witnesses as assessed victim one relating an incestuous relationship by the jury. Under such cireumstances it Knisley and one relating rape a by Knisley paramount that the protect defendant be before she was related to him. Both acts ed from evidence which only has the effect were found to be of reflecting unfavorably on his character. indicative of a sexual instinct relevant to child molesting, See, Malone, supra. Allowing this offense. the issue acts testimony by be heard the jury can on appeal was permissible scope of only prejudiced have the defendant. Mont cross-examination and rebuttal and use of gomery, supra, 412 N.E2d at 796. It this evidence during phase of the trial. placed the position defendant in a grave of Using rather broad and expansive peril lan to which he should not have been guage as to there being an evidentiary subjected. (1971), Duvose v. State 257 Ind. exception in "sex crime cases to those acts 537. The conviction therefore be reversed and the case which the jury might otherwise believe to must improbable too be to be true. See State v. returned to the trial court for a new trial. (1943), Robbins 46 N.E.2d permissible A new trial is as there was sufficient evidence to sustain the con testimony viction. The uncorroborated (1974), Austin v. State rape sup victim alone is sufficient 319 N.E.2d cert. denied 421 U.S. port conviction. Watkins v. State 95 S.Ct. 44 L.Ed.2d the court (1984), Ind., 460 N.E.2d 514. Here the held in rape a positively victim identified the defendant as that evidence the accused previously forci perpetrator. bly raped and sodomized another woman admitted, was properly although in Meeks The admissibility issue as to (1968), polygraph examination evidence will be 629 the court had excluded evidence of a pertinent to the new trial. The defendant prior rape where the act of intercourse was that, urges although the evidence is admis admitted and the issue for trial was wheth stipulated sible when and the same was (Where er the woman had consented. here, stipulated improper the evidence was consent, issue is the court has contin ly introduced due to the fact the exam was ued to follow Meeks. Brown v. State administered on a different date and a 376.) different stipulated. examiner than De fendant cites no support case law to this hand, On other where the accused change contention that such a renders the has denied commission the sexual of stipulation nugatory. stipulation does trial, fense for which he is on the court has person indicate the exact or time to found no in admitting error evidence of a administer the examination. Therefore the forcible even it does not polygraph go to properly examination was admit plan establish common scheme or ted. (1984), as it Ind., did Watkins State 460 N.E.2d 514. Lawrence v. State The conviction is reversed and remanded Ind., (prosecution 464 N.E.2d 923 for child for a new trial. molesting, prior rape evidence of admissi Reversed and remanded. ble); Allbritten (prosecution N.E.2d 854 STATON, P.J., concurs. child, kidnapping GARRARD, J., opinion. dissents with admissible); Knisley v. State cf. (1985), Ind.App., 474 N.E.2d 518. GARRARD, Judge, dissenting. Admittedly, the Indiana decisions have respectfully I dissent. If evidence of a very attempting careful in been to iden- depraved sexual instinct is to be admissible tify distinguish how the rule of admissi- exception certain offenses as an bility applies concerning the various of- excluding rule crimes question. Perhaps fenses and activities in (and uniformly acknowledge the cases that large part this is because the cases them- exists), exception such an then evidence multiple consider rape forcible should be selves tend to acts and admissible offenses in this area. I think it is a mis- rape. for forcible take, however, to conclude that forcible elementary It seems if that evidence of a rape inadvertently has included within been depraved sexual instinet is to be relevant to "depraved the definition of sexual instinct" trial, the issues on then both the offense offenses. being prosecuted and the offense of all, fered as really evidence must demonstrate or be First of if courts felt evi- our are, they sodomy, reflective of instincts. If opposed such dence of as child admissibility molestation, allowed, then the classic rationale for not be ete. should capable is to show the defendant of conduct then that distinction would have found its way print into at least a footnote or

separate opinion.

More importantly, however, it appears to

me that common experience sense and say forcible is such an offense. "De-

praved" is ordinarily taken to mean "with-

out moral sense or rectitude." Forcible fits not that definition but the

idea it is attempting See, reach. e.g., Robbins,

State v. supra. I would find no in admitting the error question.

evidence in Moreover, Lehiy fails on his other two

issues. He challenges the admission of

polygraph although he admittedly

stipulated to admissibility. Without refer-

ence to the terms of stipulation (which

he does not set forth in argument) his he argues stipulation was voided when the date of the examination operator and the

the polygraph changed were from those originally agreed to. He does not assert

nor does the record reflect that he made

any objection to changes these when they has,

were made. therefore, He waived con- sideration of the issue. Also, the evidence was sufficient to sus-

tain the conviction. judgment should

be affirmed. HOMES,

HAMMONS MOBILE INC. Hammons,

and Carl

Defendants-Appellants, TRANSPORT,

LASER MOBILE HOME

INC., Hammons Mobile Homes d/b/a

Transport, Plaintiff-Appellee.

No. 32A01-8601-CV-4. Appeals Indiana,

Court of

First District.

Dec. 1986.

Rehearing Denied Jan.

Case Details

Case Name: Lehiy v. State

Court Name: Indiana Court of Appeals

Date Published: Dec 8, 1986

Citation: 501 N.E.2d 451

Docket Number: 50A03-8601-CR-30

Court Abbreviation: Ind. Ct. App.