Butcher v. State

• Decision Date: 27 January 1994
• Docket Number: No. 53A01-9303-CR-67,53A01-9303-CR-67
• Citation: 627 N.E.2d 855
• Parties: Carl BUTCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 855

627 N.E.2d 855

Carl BUTCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 53A01-9303-CR-67.

Court of Appeals of Indiana,

First District.

Jan. 27, 1994.

Rehearing Denied March 23, 1994.

Clarence C. Frank, Deputy Public Defender, Bloomington, for appellant-defendant.

Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

NAJAM, Judge.

STATEMENT OF THE CASE

Carl Butcher appeals from his conviction for Attempted Child Molesting, ¹ a Class C felony. Butcher was charged by information with one count of child molesting as a Class C felony and one count of child molesting as a Class D felony. Before the case was submitted to the jury, the trial court granted Butcher's motion for judgment on the evidence on the Class C child molesting count, but then instructed the jury on attempted child molesting as a Class C felony. The jury returned a guilty verdict on both counts, and Butcher appeals.

We affirm.

ISSUES

We restate the issues presented for review as follows:

1. Whether evidence of Butcher's depraved sexual instinct was admitted in violation of Lannan v. State.

2. Whether the trial court erred in giving a jury instruction for attempted child molesting and instructions concerning the victim's testimony.

3. Whether the evidence was sufficient to support Butcher's conviction for attempted child molesting.

FACTS

In the late summer of 1991, Butcher entered his daughter's room, fondled her breasts, and attempted to kiss her. Butcher's daughter, then twelve years of age, resisted by kicking Butcher and ran into the bathroom. A week later, she awoke to find Butcher lying nude on top of her. Butcher's daughter was also nude, although she was uncertain how she had become disrobed since she usually slept clothed. Butcher did not place his penis in his daughter's vagina. However, Butcher's daughter noticed "white stuff" on her stomach, and she experienced pain "down low" after this incident. Record at 60-61. Butcher later admitted that "something happened" between him and his daughter, although he claimed that he "couldn't resist" touching her and that he did not touch her voluntarily. Record at 196 and 198.

DISCUSSION AND DECISION

Issue One: Admission of Depraved Sexual Instinct Evidence

Butcher's first allegation of error is the trial court's admission of the testimony of Jennifer Williams and Patty Lauderdale, his nieces. Williams and Lauderdale both testified that Butcher had kissed, fondled or made sexual advances toward them when they were children. Butcher argues that Williams and Lauderdale's testimony, as depraved sexual instinct evidence, is no longer admissible after our supreme court's decision in Lannan v. State (1992), Ind., 600 N.E.2d 1334. Butcher also argues that admission of such evidence cannot be harmless error but is highly prejudicial and warrants reversal of his convictions.

We agree with Butcher, and the State also apparently concedes, that the admission of Williams and Lauderdale's testimony violated the rule established in Lannan. ² However our inquiry does not end here, because in Lannan our supreme court adopted Federal Rule of Evidence 404(b) and held that evidence of prior sexual misconduct may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. ³ Lannan, 600 N.E.2d at 1339. " '[S]uch evidence may be admissible despite its tendency to show bad character or criminal propensity, if it makes the existence of an element of the crime charged more probable than it would be without such evidence.' " Id. (quoting Bedgood v. State (1985), Ind., 477 N.E.2d 869, 872-73) (emphasis in original).

Our supreme court has recently addressed use of the "intent" exception under Indiana Rule of Evidence 404(b) for admission of prior sexual misconduct evidence. In Wickizer v. State (1993), Ind., 626 N.E.2d 795, the supreme court stated the rule as follows:

"The intent exception in Evid.R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State's witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant's intent at the time of the charged offense."

Wickizer, 626 N.E.2d at 799. In concluding that Indiana is best served by a narrow construction of the intent exception in Evidence Rule 404(b), our supreme court noted that the mental state or culpability of a defendant is an element which the prosecution must prove in virtually every criminal case. Id. at 797 and 799. Accordingly, the court reasoned that a broad interpretation "would cause the intent exception of Rule 404(b) to overwhelm the rule's primary objective" of prohibiting use of prior misconduct to prove guilt in the instant prosecution. Id. at 797. Indeed, this court reached the same conclusion when it applied the intent exception in Federal Rule of Evidence 404(b) to the admission of depraved sexual instinct evidence in another child molesting prosecution. See Pirnat v. State (1993), Ind.App., 612 N.E.2d 153, 156 ("to allow intent automatically to become an issue in the class of cases, including child molesting, in which intent is inferable from the nature of the act charged, would create an exception to Fed.R.Evid. 404(b) that 'would virtually swallow the rule against admission of evidence of prior misconduct' ") (quoting United States v. Shackleford (1984), 7th Cir., 738 F.2d 776, 781).

Here, as in Wickizer and Pirnat, we apply a Rule 404(b) analysis. The evidence showed that Butcher gave a voluntary statement to the police approximately a week after the molestation occurred. Butcher admitted that "something happened" in his daughter's bedroom and that he touched his daughter's breasts and her vagina with his hand. Record at 160-61. However, Butcher claimed that his daughter initiated the encounter by requesting that he enter her room where she lay naked, and then by pulling him toward her. Butcher explained that in light of such advances, he "couldn't resist" touching his daughter, although he denied having sexual intercourse with her. Butcher's counsel told the jury in his opening statement that Butcher's "story is different from [his daughter's]" and that Butcher would testify and "tell [them] that story." Record at 48-49.

When Butcher took the stand at trial, he reiterated his claim that his daughter called him into her room and pulled him toward her nude body. Butcher testified that his daughter grasped his hand, placed his hand on her breast and then squeezed his hand on her breast. Butcher declared that he "never voluntarily reached up and touched her." Record at 193. On appeal, Butcher has remained steadfast in his position that he did not intend to molest his daughter, arguing that his "denial of wrongdoing ... can best be described as an absence of the specific intent required...." Appellant's Brief at 6-7.

Butcher's pretrial statement to the police, his counsel's opening remarks, and his own trial testimony demonstrate that the State was justified in presenting character evidence in its case-in-chief in order to prove Butcher's intent to molest his daughter. Both before, during and after his trial, Butcher never denied that "something happened" in his daughter's bedroom. Nor did Butcher deny that he touched his daughter while she lay nude in her bed. Rather, he put his intent at issue. Butcher's proffered explanation for his conduct was that he either (1) could not resist his daughter's advances or (2) he was forced, against his will, to touch his daughter's breasts. As shown by his counsel's opening statement, Butcher's strategy was to explain his conduct by telling his version of the events.

Under Wickizer, the test is whether the prior conduct was admitted before the defendant presented a claim of particularly contrary intent. Wickizer, 626 N.E.2d at 800, Here, Butcher presented a claim of contrary intent, well before the State's introduction of depraved sexual instinct evidence, when he gave a voluntary statement to the police and claimed that he could not resist touching his nude daughter. Butcher's counsel then specifically mentioned in his opening statement that Butcher had voluntarily spoken with the police and that Butcher would tell his story to the jury at trial. When considered together, Butcher's pretrial statement to the police and his opening statement amount to a particularized assertion that he did not intend to molest his daughter. Butcher's comments are considerably more specific than the vague response to police questions made by the defendant in Wickizer that he was not a "devious character." Id. Butcher did not merely deny the charged conduct; he affirmatively presented a claim of particular contrary intent.

Finally, even if prior conduct evidence is deemed admissible under an Evidence Rule 404(b) exception, courts must still apply a balancing test and determine whether the prejudicial effect of presenting the evidence substantially outweighs its probative value. See id. at 799 (citing Indiana Evidence Rule 403); Hardin v. State (1993), Ind., 611 N.E.2d 123, 129. Such evidence should not be admitted if it might unfairly affect the outcome of the trial by violating the defendant's constitutional due process right to a fair trial. Hardin, 611 N.E.2d at 129. Here, the prejudicial effect of evidence that Butcher had previously fondled or made sexual advances toward his minor nieces did not substantially outweigh its probative value. Butcher made a particular issue of his contrary intent when he admitted touching his daughter, but asserted that the touching was involuntary. Admission of prior molestations was...