*1 fall, stumble, stagger, Pierce did not feet, steady his that he was coher- he was SHANKS, Appellant- Kenneth L. ent, appeared he to be aware of and that Defendant, doing. he
where he was and what had been to tell Brooks his Pierce was able Officer number, birth, security social date Indiana, Appellee. STATE memory. During state- address from ment, No. 80A02-9212-CR-593. swearing, apologized Pierce stammered, notary public he told after the Indiana, Appeals Robinson, Eugene her to be nervous. District. Second that he and defense witness who testified drinking since around Pierce had been 8:00 Sept. a.m., also stated that two hours before the carry shooting, Pierce was able to on a con-
versation, get was able to in and out of a car liquor. help, his and was able hold .to mental fac-
This evidence shows that Pierce’s him impaired were not so as to render
ulties controlling
incapable of his conduct. Ramsey
Lisa testified that before the
shooting she overheard Pierce tell another patron
tavern there would be trouble going
and that someone was to die. After Lockhard,
threatening Butler and Pierce left approximately one-half hour.
the tavern for returned, again spoke he he
When Conkright Richard
women what witness “very appeared
testified to be a rational” During exchange,
manner. this he asked first, and,
which woman wanted to be shot affirmative, Lockhard answered in the her. Kimbra testified that
he shot
immediately shooting Pierce indi- after wrongfully.
cated that he knew he had acted himself, witnesses, including Pierce
Several that Pierce told Lockhard and But-
testified going get gun in
ler that he was home to then
order to shoot them. Pierce went
home, got gun, and shot Lockhard. This that Pierce had formed a
evidence shows Lockhard,
plan to shoot that Pierce carried plan, and that he
out that understood wrong.
conduct was regarding ability to
The evidence Pierce’s overwhelming.
form the intent to kill is is affirmed. NAJAM, JJ.,
FRIEDLANDER and
concur. *2 Lett, Tipton, R. appellant.
Thomas for Carter, Gen., Atty. Cynthia Pamela L. Ploughe, Indianapolis, appellee. SULLIVAN, Judge. again,
Once
we must determine whether
reversal is
due to the admission of
depraved sexual instinct evidence in the wake
of Lannan v. State
twist,
however,
This case offers a new
because the defendant was tried to the court
and not to a
The facts most
favorable to the trial
court’s
reveal
that Shanks has
J.S.,
daughters:
M.S.,
three
L.S.
late
early
1990 or
J.S. told a school counsel-
or that
molesting
Shanks had been
her. She
reported that he had touched and fondled her
September
breasts on
and that he
genitalia
had fondled her
in mid-June of
charged
Shanks was
with two counts of
molesting
J.S.,1
child
fondling
both Class
D
trial,
Felonies. At Shanks’ bench
J.S.
testified,
other,
objection,
over
about
un-
acts of molestation
Shanks.
testified,
daughters
Shanks’ other
also
over
objection,
about
instances of Shanks’
molestation of them. The trial court found
guilty
of both counts and sentenced
him
three-year
to two
imprison-
terms of
ment, to be
concurrently
served
but consecu-
tively to the sentence he had
received
separate proceeding for his conviction for
molesting L.S.2
(Burns
1988).
State,
1. I.C. 35-42-4-3
Code Ed.
randum Decision in Shanks v.
(1993).
separate proceeding
2. The conviction in the
reversed and the sentence set aside in a Memo-
acts,
time of
and the evi-
includ
admissible at the
Evidence of
special
over a
dence was admitted
tending
depraved sexual
ing acts
to show a
instinct,
supra at
is inadmissible.
dispute
beyond
that the evidence
Improper Purpose
A.
uncharged
of molestation was
acts
*3
generally inadmissi
“Bad acts” evidence is
However,
evidentiary error
error.3
highly prejudicial and invites
it is
ble because
occurred,
if it is
reversal is
merely
jury to convict the defendant
rely
apparent
the fact-finder did not
person. Hardin v. State
he is a bad
because
improper
reaching
upon the
evidence
(1993)
123,
N.E.2d
127. The evi
611
(1982) Ind., 436
verdict. Pinkston v. State
conveys
impression that the defen
306,
determining
whether
N.E.2d
“
punished
man who should be
dant is
‘bad’
upon,
improper
was relied
against him
whether or not” the evidence
reviewing
probable
court should consider
guilt. Thompson
v. State
establishes
impact of the evidence
the fact-finder.
(1993)
1094,
Ind.App., 612 N.E.2d
4th Dist.
Lannan, supra,
was not relied at 308. presumed impartiality....” to retain his be reviewing may A reach the same con (1983) Ind.App., 446 Pier v. State 3d Dist. overwhelming there was other clusion where (no 985, error where N.E.2d 988 reversible guilt, regardless of evidence of whether trial court in manacles defendant was tried to Lannan, trial was to a or a handcuffs). presumed “It can be that a supra at 1341. swayed by is not evidence which jury.”
is considered before Mi (1978) 274, Ind. 374 senheimer State 268 I. BENCH TRIAL only N.E.2d 528. If this were the rea a defendant is tried without "When depraved sexual instinct son jury, may be inadmissible, might persuaded is now disregard ev inadmissible and irrelevant required. is not reversal determining idence in whether the defendant there is another reason that this evidence is Pinkston, charged committed the crime. su precluding operation (1973) Dist., 308; pra 2d State judicial-temperance presumption. “[H]arm aris ing evidentiary error is lessened if not from prior offenses is While evidence of totally by the court annulled when the trial is admissible for a few enumerated sitting jury.” King, supra at without a 846. purposes,4 it is not admissible to show that question remains whether we in propensity commit the defendant had to “judicial-temperance” presump dulge therefore, this committed the criminal acts and Lannan, a Lannan has occurred. tion where error supra, 600 N.E.2d crime. apply We hold that the at 1339. Prior to evidence of a depraved exception the evidence was used an to this case because sexual instinct was propensity to improper purpose, the evidence was rule and was admissible objected is admissible to 3. Shanks to the evidence at trial based 4. Evidence or acts uncharged intent, inadmissibility motive, crimes. opportunity, preparation, prove appeal pending on His case was Lannan knowledge, identity, plan, mistake. or absence of clear that has met the was decided. It is Lannan, supra “Bad at 1339. acts” evidence is (1992) Ind., Ind., requirements of Pimat v. State impeach also admissible to witness if the (1993) and Ried v. State N.E.2d N.E.2d 893. In credibility would acts reflect or make fact, filing the State waived testify per incompetent statute. defendant appellee’s brief and "the Ashton v. Anderson 258 Ind. Appellant’s be constrained to reverse court convictions....” Waiver, ¶ State's “ exception.” with a stinet ‘connect an accused crime Record at 66. Where evi- Kerlin v. 255 Ind. simply dence is inadmissible because it will only can 25. We conclude prejudice jury, appro- inflame the it is abolishing depraved sexual ex- instinct priate presume will not likewise be ception, Court has held that affected. where evidence is admit- evidence of a sexual instinct can expressly prohibited purpose, for a ted longer prove that be used to cannot did not consider it charged.5 other committed the crime Like impermissible purpose. “bad acts” simply instinct irrelevant B. Admissible at Trial lack guilt defendant’s thereof. In so hold- ing, we note that Fourth District has The judicial-temperance presump *4 in- that evidence of stated sexual inapplicable tion is also in this case because irrelevant, damaging, “wholly stinct is but the contested evidence was admissible at the prior acts.” employing time of trial. most cases the (1992) 4th Moran v. State Ind.App., Dist. presumption, inadmissible, the evidence is trans. denied.6 N.E.2d anyway, usually in but comes because no posed.7 is Where inadmissible evi The was not for admitted in dence comes without intervention of the any permissible purposes. of the may he or she be to know Rather, prove note 4. it was admitted to the evidence is in-fact inadmissible and conformity that Shanks acted in a de with However, disregarded. should there be is no overruling praved sexual instinct. disregard reason to objection, “I would the trial and, think evidence that was the time don’t this falls under the common admissible at therefore, plan exception. presumably scheme or However it will relevant. states, quoting King, supra, in-
be admitted under
sexual
Friedlander
analogized
are,
opening
note that in
the court
The
evidence.
Moran court’s
words
proof
prior
(Tom),
of
sexual crimes with
of
Roy
age
“A month after
Thomas Moran
prior drug-related crimes. The court
on to
went
grounded
year
daughter,
his then eleven
old
although
disputed
hardly
hold
"it
can
complained
she
to school
officials
he—about
highly probative
that such
...
evidence would be
years previously
visiting
four
while
was
she
outweighs
effect
such evidence
sexually
him—had
touched her while she was
any probative
The
value.”
at 1337.
facts,
showering.” Id. at 1259. In
the court
its
court stated
was the
that this
reason for over-
point by stating, "[Djuring
reiterates this
turning the rule. We admit that this
tends
holiday,
'ground-
Christmas
the victim
interpretation
cast doubt
of Lannan
by
discipline.
ed'
as
Tom
The next month she
sex crimes are not
relevant to
complained to school
Tom had mo-
officials that
determination of the defendant’s
The wa-
lested
her.”
by
holding
ters are muddied
Court's
others,
passages
From these
and
reader is
Hardin, supra,
in which the court cites Lannan
impression
clear
left with the
that the Fourth
holding
as
that "a trial court
even
exclude
allegations.
District did not believe the victim's
trial,
possible prejudi-
relevant evidence at
due to
However,
reviewing
it is not for a
tribunal to
outweighs
probative
cial effect that
value
weigh
credibility
and
of wit
facts
the evidence.”
ered waived. Be that as
Fletcher is
SHARPNACK, C.J., concurs.
judicial
controlling.13 Perhaps
temper-
premise
completely
ance
should be discarded
FRIEDLANDER,
J., dissents with
and,
unnecessary
applicable
as oth-
opinion.
applied wholly illogical.
erwise
FRIEDLANDER,
Judge, dissenting.
II. OTHER OVERWHELMING
EVIDENCE
I respectfully
majority’s
dissent.
de-
by presuming
cision detours
reversible error
ground
concluding
An alternative
when trial
acts as a trier of fact while
rely
a trier of fact did not
the inadmis-
*6
allowing
analysis
a harmless error
when a
evidence
sible
is that
there is other over-
jury
prejudicial
hears
evidence.
Lannan,
whelming
guilt.
supra,
evidence of
Overwhelming
Without instinct this evidence warrants must as- evidence, only regarding probable impact of the sess Lannan, guilt was jury.” J.S.’s uncorroborated alle at 1341 agree gation. (emphasis supplied). We that in the abstract such Pinkston, supra, overruling see 12.But 436 N.E.2d at we will not dicta 308 read the court’s (erroneous prior bad admission of acts would not Fletcher. reversal). require the evidence “Even had been if admitted, court, improperly tried to in actions position 13. that Friedlander's disregarded judge comports Cir., it is inadmissi- with United v. MenK States 7th Menk, testimony_" (emphasis supplied). ble though Id. Al- 406 F.2d denied. In cert. opinion, applied though not discussed it in the is evident even judge judge erroneously the trial that in Pinkston overruled a defen- had overruled the defendant’s objection. objection. “improperly dant’s at we are words admit- F.2d Fletcher, necessarily judge by supra. implies bound ted" has ruled party object, fails to Where a simply has not "admitted” it is In v. State Lannan and Martin Pinkston, Supreme ap- admitted. 622 N.E.2d Court found over- plied whelming with- evidence where admissible evi- discussing out eyewitness whether the was account included an Pinkston, general. Here, simply or in admission molestation. Id. do not have erroneous, compelling type of the contested not evidence was of evidence. punish not “The notion that the State convicted after Because Shanks was character is one of the jury by person for his was affected bench jurispru- system in observed foundations of our evidence. (1991), Ind.App., other than Roop dence. Evidence of misconduct v. State “Generally, charged (‘uncharged harm from which one is trans. denied: that with misconduct’) complete- naturally give if not rise to the evidentiary error is lessened will the defendant is of bad char- ly the trial is the court inference that annulled when This, turn, danger that jury.” poses Id. at 570. The in sitting acter. explained solely jury rule was convict the defendant rationale for the (1973), on this inference.” v. State N.E.2d 843: (1987), Penley v. State quoting Id. at prejudi- might very well constitute “What testimony given in the form of cial error however, similarly is A trial jury necessarily consti- before tempted by such evidence. It is common for prejudicial error in a trial to the court. tute exposed to information a trial be remembered that a trial must extremely that would be about presumed to know the intricacies and eyes Lasley prejudicial in the of a of the rules of evidence and refinements (fact (1987), Ind., v. State weighs it in that he sifts the evidence and judge presided over defendant’s trial exper- light legal experience and of his previous molesting child trial did not estab- separate the wheat tise. He thus able prejudice). lish the existence of bias or extraneous, chaff, ignoring from the incompetent and the irrelevant and it Nothing suggests in the record apparently only trial because of his convicted Shanks obviously by erroneously been infected testimony character. The victim’s that we will set admitted evidence unequivocal and sufficient to sustain Shanks’s
aside.” King, supra, conviction. As was noted extraneous, ignore in- is able to 846-47. Further, competent evidence. and irrelevant Shepard exam- Chief Justice appearance if a defendant’s before a certain exception ined the sexual instinct actions does not establish rule, exclusionary and ob- prejudice, Lasley, supra; Brim v. State highly proba- served that such evidence was *7 (1984), Ind., we should con- Lannan, supra, tive. at 1336-37. He went clude that the trial court’s awareness of analyze the rule: “This exclu- on to prejudiced other molestations Shanks’s sionary character rule renders inadmissible against him. This conclusion is solely offered to show the accused’s the treatment of evi- also consistent with propensity to commit the crime with which during offenses admitted extraneous charged. he rationale behind this the federal bench trials. See United States rule, propen- sometimes termed ‘the (5th Cir., 1977), 970; Impson 562 F.2d rule,’ sity prejudicial is that the such effect of (7th Cir., 1968), v. Menk United States outweighs any probative value.” F.2d 124. (emphasis supplied). Id. at 1337 Thus, judge’s The trial of Shanks’s propensity evidence is not disfavored consideration value, automatically require probative but rather actions should not because it has reversal, majority suggest. tendency preju- as the seems to excluded because of its supreme explicitly held that supreme court ex- Our dice the (1993), Ind., 611 the admission of evidence of defendant’s plained in Hardin v. State 123, 127, depraved sexual instinct does not constitute such evidence is (1993), jury Ried v. tempts to convict the fundamental error. because it solely It is therefore not because of his bad charac- Hardin, deprive supreme court evidence which would a defendant ter. ob- supreme a fair trial. As the court Lannan served: determined that highly probative, instinct evidence is and as it extremely unlikely that the trial
tempted to convict because of his bad
character, I do not believe reversal is neces-
sitated under Laman.
Since sexual instinct evidence is
highly probative, “wheat”, such evidence has metaphor
to borrow the King. used in As a ignore temptation trained to
to convict a defendant because of his bad
character, “chaff’, we should conclude
the admission of Shanks’s acts here reversal, require just as the su-
preme court concluded in Lannan.
I with the modification of Shanks’s
sentence, but I vote to affirm his convictions. STATON,
Richard Appellant-Petitioner, Indiana, Appellee.
STATE of
No. 29A02-9302-PC-71. Appeals Indiana,
Court of
Second District.
Sept.
Transfer Denied Nov.