*1 chael pay should been ordered to per rather than
$137.00 $50.00 week
the order then in force. Michael should not permitted escape legal to his and moral
obligation by quitting job. the device of his
I am aware Michael’s contention he
quit job perceived his because unfair by employer. Howevеr, his condoning
while not unfair treatment employer
his if such suffice it many persons aspects that find some but, employment their distasteful never-
theless, keep working meet their obli-
gations. Perhaps Michael should have
sought employment other find relief regarded unfair,
from the treatment he happened,
but until that either he should or, employment, pursu-
have continued his guidelines, obligation
ant his upon have been determined based employment event volun-
tary unemployment. majority opinion
I believe the sends a
message disgruntled support obligors they can relieve themselves their
obligations by quitting jobs. I their do not subscribe to such a view do believe Muncie, Kelly Bryan, N. fоr appellant- the law can or should tolerate re- defendant. sult. Pearson, Gen., Linley Atty. E. Sue A. stated, For the I respectfully reasons Gen., Bradley, Deputy Atty. Indianаpolis, dissent. appellee-plaintiff. for BUCHANAN, Judge.
CASE SUMMARY (Van- Defendant-appellant Kash Vanover VANOVER, Appellant-Defendant, Kash over) appeals from his сonviction for child molesting, claiming the trial court erred when it of prior admitted evidence un- Indiana, Appellee-Plaintiff. STATE of charged allegations of undеr molestations No. 90A02-9208-CR-373. sexual instinct rule. Court of We reverse.
Second District. FACTS jury’s The facts most favorable September 15, verdict reveal that on visiting fifteen old victim wаs great-grandmother. Vanover,
home great-uncle, also lived in the bed, home. When the victim Van- *2 We first consider the Su and her whether into her room rubbed over cаme intended decision in Lan vagina preme The left the Court his hand. victim returned, retroactively. Our con room, to be Vanover be- nan and when she Lannan, retrоactivity of heavily. of the breathing her sideration gan hugging and however, necessarily limited to its retro charged with arrested and Vanover was cases, pending and is active molesting,1 D felony. a class child the issue of unrelated to whether trial, testified that when At the victim retroactively on collateral would fourteen, attempted had she was Vanover previously decided cases. See review grab The victim’s her breast. (1990), Ind., 561 v. N.E.2d Daniels when she was between testified that 487. twelve, had аges eleven and Vanover clouded certain The issue is state- vagina. Vanover was fondled ob- ments the Lannan After and one-half victed received a one and serving decision the reason- that its echoed sentence.
ing of dissent Kerlin Justice DeBruler’s 255 Ind. v. State ISSUE “Twenty- the Court Lannan continued: for our raises sevеral issues later, Justice DeBruler has car- two reverse, consideration, we we but because day. His tracks the ried need address one: language of Federal Rule Evidence when the trial court erred Whether 404(b), hereby adopt in its which we entire- prior into evidence Vanover’s allowed ty, effective from her mоth- acts the victim and omitted) (footnote at 1339 supra er? (emphasis supplied). language might suggest that While this DECISION depraved sexual in- the abolition of PARTIES’ CONTENTIONS—Vanover given оnly prospective to be stinct rule was have ad- trial court should not claims the to apply Court application, the prior incidents with mitted evidencе in Lannan and facts depraved victim her mother under the and improperly ad- that evidence was concluded rule, arguing the rule sexual instinct mitted, Id. constituted а at which The State concedes should be overturned. its new rule.3 application of retroactive Supremé recently has abol- that our Court might Any exist as tо doubt rule, depraved instinct but ished the sexual application of the Lannan deci retroactive argues Supreme Court’s decision opinion by anothеr issued sion was settled given retroactive should not be day by Court. on the same de- CONCLUSION—The (1992), Ind., 600 N.E.2d Pirnat v. State he and applies cision 1342, the stated: Court must retried. alleges petition for transfer “Pirnat’s introduction of certain evi- recently has abol- error Our Court depraved sex- dence admitted to show depraved instinct ished the sexual today ual instinct. We have the admission which allowed would No. 71S03- disputed 1334] evidence. Lannan [600 9210-CR-836, October revisited 1334.2 sharp is in contrast 3.This 1. Ind.Code 35-42-4-3. in Modesitt v. State Court’s decision which the Court Anticipating the Court’s decision hearsay exception to the the Patterson abolished objected disputed evi- 343-50, trial, apply its new rulе to 281-91, The did not rule. and record at dence at and stated that argued depraved the facts in Modesitt specifically appeal that the retrospective application to Appel- would not have instinct rule should be abolished. sexual previously or decided lant's brief exception instinct sexual home where the molest occurred and [sic] concerning shouted, going announced a new rule f*** again.’ ‘I’m them admissibility declaration, bad acts in sex of- cоupled Record 274. This *3 ap- fense Inasmuch as Pimat’s testimony with the victim’s and T.W.’s peal currently pending corroboration, is as this new lead us conclude that announсed, rule is the rule of Lannan impact the of this other evidence on the to his case. jury weight of [Citations was not sufficient to re- quire omitted]. reversal.” Therefore we to the remand Court of Lannan, supra at 1341. Appeals for of ap reexamination Pimat’s Comparing presented the evidence here peal light holding today in of our in Lan in that considered we cannot nan v. State.” come to a similar There no conclusion. was
Pimat, supra (emphasis supplied). incriminating declaration made Vanover.
Based the Also, on Court's command testimony there no corroborating was Pimat, in apply we therefore must Lan- faсt, parties. from third only In the cor- appeal, it nan Vanover’s as was roborating testimony party from a third new when the rule was announced. While supported Vanover. Vanover’s son testi- hopes the State the Court will fied that he saw in Pimat, reconsider its decision in we must night question bedroom the in and that apply the law as it stаnds. Vanover and off merely turned a radio the in precisely Pirnat are the position, same patted room and the victim on the head. and we can discern no difference in circum- Record at 442. Our assessment of the stances justify between them that would probable impact of improperly the admitted disparate of their cases. testimony leads us to conclude rever- required. sal is
Following analysis the used Lan nan, we cannot that the evidence Judgment a reversеd and remanded for Vanover’s sexual misconduct the new trial. mother, victim and record was admissible under Federal Evi J„ SULLIVAN, concurs. 404(b). dence The State contends that the HOFFMAN, J., separate dissents with evidence of Vanover’s vic tim a earlier and the incident with her HOFFMAN, twenty Judge, dissenting. more than trial before was evidence of intent to arouse majority’s I opinion illog- dissent. The is during present himself crime. Like ical and irrational. Lannan v. State Shepard Chief Justice we be 1334, 600 states argument attemрt lieve such an an is adoption that the Federal Rule Evi- square peg force “a in a round hole.” dence is this “effective from Lannan, supra at 1341. We must there (Emphasis N.E.2d at 1339. fore conclude that the trial erred supplied.) language merely This does not testimony. when it allowed the suggest prospective application as the ma- assessing probable
When impact of jority contends, requires prospective ap- improperly admitted in Lan- evidence pliсation. Gray See nan, say: Court had this 605, Furthermore, “Ordinarily, uncharged trary majority’s evidence statement foot- crimes of the character introduced note
сase major impact could be said to have a the new rule in no different Today on the jury. persuaded we are from the court’s of the new rule otherwise, however, large measure be- Modesitt v. testimony Sage,
cause of the of Alfred 649. The new rules not took effect in an Sage uncle of Modesitt, they V.E. and T.W. testified May that in Lannan drove the facts of If adopt the cases. we were to majority, there would thing no as opinion, majority of its (filed cites Pirnat October
1992), Ind., down
Supreme Court handed same However,
day as Lannan. Pirnat in the
pending on transfer Lannan; therefore, time same *4 distinguishable the case at bar. As from above, the Lannan clearly
discussed opin
set nature of out
ion, and as the instant was tried the new
to the effective date of apply. does WOMACK,
Boyce Brown
Appellant-Petitioner, WOMACK, Appellee-Respondent.
Anna
No. 47A01-9207-CV-224.
First District.