ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID W. STONE IV JEFFREY A. MODISETT
Anderson, Indiana Attorney General of Indiana
ROSEMARY L. BOREK
Deputy Attorney General
STEVEN E. HOOK, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-9802-CR-118 ) STATE OF INDIANA, ) ) Appellee. )
OPINION - FOR PUBLICATION
the court abused its discretion in making those decisions. Kremer v. State (1987) Ind., 514
N.E.2d 1068, 1073, reh'g. denied.
Hook contends that these statements waived the rape shield statute and opened the door for
Hook to offer evidence of M.K.'s past sexual conduct. He claims that the statements created
the false impression that the alleged conduct with Hook was a new experience for her in
order to provide a basis for claiming that M.K.'s failure to report the incidents with Hook
"was due to her inexperience in such matters and resulting confusion about what she should
do." Appellant's Brief at 7. However, Hook fails to point to a place in the record where the
prosecutor relates M.K.'s exploration of new things to her failure to report.
Additionally, the rape shield statute was created precisely to exclude evidence such as was offered here. The purpose of the statute is to encourage the reporting of sexual assaults and to prevent victims from feeling as though they are on trial for their sexual histories. Little v. State (1995) Ind.App., 650 N.E.2d 343, 344-45. The statute contains three specific exceptions to the rule that evidence of a victim's past sexual conduct is inadmissible, and our courts have created a fourth exception which permits evidence that the victim has
in the past made demonstrably false accusations of sexual misconduct against others. See
I.C. 35-37-4-4(b)(1)-(3) (Burns Code Ed. Repl. 1998); Little v. State (1980) Ind.App., 413
N.E.2d 639, 643. Hook's purpose for offering the evidence of M.K.'s past sexual conduct
does not fall within any of these established exceptions,See footnote
and we will not frustrate the purpose
of the statute by "graft[ing] additional exceptions onto the statute." Kelly v. State (1992)
Ind.App., 586 N.E.2d 927, 929, trans. denied.
By dictum, we considered a similar argument in Tyson v. State (1993) Ind.App., 619 N.E.2d 276, 290, n.15, trans. denied, cert. denied, 510 U.S. 1176. There, the appellant, in an appeal from a conviction for rape, argued that the state's opening and closing arguments created an "angelic image" of the victim in that case, and that he should have been entitled to impeach that image with evidence of the victim's sexual history. This court concluded that the trial court properly excluded the evidence of the victim's past sexual conduct, although it was arguably relevant to issues such as consent or witness credibility, because it was not offered under any of the exceptions to the rape shield statute. In this case as well, where the relevance of the proffered evidence is questionable, the trial judge's exclusion of the evidence was not an abuse of discretion.
Hook cites to Steward v. State (1994) Ind.App., 636 N.E.2d 143, 150, summarily aff'd in part and aff'd in part, 652 N.E.2d 490, reh'g. denied, for the proposition that the prosecutor
may open the door to the admission of evidence otherwise barred by the rape shield statute. Unlike the case before us, however, the court in Steward found that the exclusion of the evidence in that case violated the defendant's Sixth Amendment right to cross-examination. This holding was not disturbed by our Supreme Court upon transfer. See infra note 3, at 7. The rape shield statute itself has been challenged upon grounds that it violates a defendant's right to confrontation. However, each time this challenge has been made, our courts have upheld the statute as constitutional, absent a showing that its use actually impinges on the defendant's constitutional right of cross-examination. See Woodford v. State (1986) Ind., 488 N.E.2d 1121, 1126; Thomas v. State (1984) Ind., 471 N.E.2d 677, 679, reh'g. denied. Therefore, because Hook does not argue that the exclusion of the proffered evidence infringed upon his right to cross-examination and because the evidence does not fall within any exception to the rape shield statute, the trial court correctly excluded the evidence.
by allowing a witness to judge the credibility of another witness, the province of the jury is
invaded upon. See Shepard v. State (1989) Ind., 538 N.E.2d 242, 243, reh'g. denied.
However, in each Indiana case cited by Hook, there is a crucial difference in the testimony offered and the testimony offered in this case. In reversing the convictions of the appellants in those cases, the courts found that the testimony elicited directly vouched for the credibility of another witness' testimony. See, Stewart v. State (1990) Ind., 555 N.E.2d 121, 125 (Group home psychologist testified that, in her opinion, the victim's testimony about his experiences with the defendant was trustworthy.); Jones v. State (1991) Ind.App., 581 N.E.2d 1256, 1258 (Welfare Protective Service investigator testified that, based on her interviews with the victim, she believed that the victim had been molested.); Ulrich v. State (1990) Ind.App., 550 N.E.2d 114, 115 (Psychiatrist testified that "[t]he consistency of that memory indicates to me that she [is] reliable and credible."), trans. denied; Douglas v. State (1985) Ind.App., 484 N.E.2d 610, 611 (Psychiatric social worker testified, "I believe [the victim]. I think he's telling the truth."). There is little doubt that the trial court here would have committed reversible error if Koons had been allowed to testify that, despite the inconsistency in her statements, he believed that M.K. was telling the truth. However, Koons' testimony was not a direct comment upon the credibility of M.K.'s testimony, but was rather an indirect comment on M.K.'s credibility which has been held to be permissible in Indiana.See footnote 2
Stout v. State (1988)
Ind., 528 N.E.2d 476, 479 (quoting Lawrence v. State (1984) Ind., 464
N.E.2d 923, 925).See footnote
In an analogous case, Jarrett v. State (1991) Ind.App., 580 N.E.2d 245, 250, trans. denied, a doctor was permitted to testify over objection that "most children [the victim's] age do not fantasize about sexual relationships without some prior exposure, and that probably 95% of the children telling stories about sexual encounters at that age are telling the truth." The court found that this statement was not a direct assertion of the doctor's belief that the victim was telling the truth, despite the court's recognition that the testimony "tended to show
it was likely [the victim] testified truthfully about being molested by [the defendant]." Id.
Further, in Wright v. State (1991) Ind.App., 581 N.E.2d 978, 980-81, a panel of this
court held that it was not an abuse of the trial court's discretion to allow a social worker to
testify that she did not believe that the victim was prone to exaggerate or fantasize the events
in question, and that she learned nothing about the victim that would be inconsistent with the
assertion that the victim was sexually abused. The court on appeal concluded that admission
of this testimony was proper because it was not a direct statement regarding the child's
credibility. Id. at 981. Thus, while Koons' statement may have allowed the jury to discount
the importance of the inconsistencies in M.K.'s testimony, it was not a direct comment upon
the credibility of M.K.'s testimony. In that we conclude that Koons' testimony was not a
direct assertion that he believed M.K. to be telling the truth, we hold that the trial court did
not abuse its discretion in allowing his testimony.See footnote
The judgment is affirmed.
SHARPNACK, C.J., and HOFFMAN, Sr.J., concur.
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