Caley v. State
| Decision Date | 28 April 1995 |
| Docket Number | No. 35A05-9311-CR-426,35A05-9311-CR-426 |
| Citation | 650 N.E.2d 54 |
| Parties | Wayne D. CALEY, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant Wayne D. Caley, Jr. appeals his conviction of one count of Child Molesting as a Class C felony (sexual intercourse) 1 and one count of Child Molesting as a Class D felony (fondling). 2 He raises several issues for our review which we consolidate and rephrase as: 1) whether the trial court properly excluded testimony of the victim's alleged past sexual conduct; 2) whether the trial court erred in admitting certain photographic exhibits into evidence; and 3) whether the trial court erred in admitting the victim's prior consistent statement into evidence.
We affirm.
The facts 3 most favorable to the judgment reveal that the victim, fourteen-year-old J.K., resided with her mother, and her step-father, Defendant Wayne D. Caley, Jr. (Caley). Between July 1990, and June 1991, Caley engaged J.K. in sexual intercourse and fondled her breasts. In August 1992, J.K. informed family friends that she had been molested by Caley. Caley was thereafter arrested, charged, and following a jury trial, convicted of two amended counts of child molesting. This appeal ensued in due course.
Caley first challenges the trial court's application of the rape shield statute to exclude certain evidence concerning J.K.'s alleged prior sexual activity. Both prior to and during trial, Caley offered to prove that J.K. and Caley's eighteen-year-old son had engaged in sexual relations and that Caley's son rather than Caley was the perpetrator of the molestation. Following a hearing, the court ruled that the evidence was inadmissible pursuant to the rape shield statute. According to Caley, the evidence was admissible under an exception to the rape shield statute, and thus the court's ruling erroneously precluded him from impeaching J.K.'s credibility through cross-examination.
Evidence of the sexual history of an alleged victim of a sexual offense is generally inadmissible in the trial of the alleged offender. Ind.Code § 35-37-4-4; Kelly v. State (1992), Ind.App., 586 N.E.2d 927, 929, trans. denied. 4 One exception to this general prohibition is where a specific instance of sexual activity shows that some person other than the defendant committed the act upon which the prosecution is founded. I.C. § 35-37-4-4(b)(2). Such evidence may be introduced only if the judge determines that it is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. I.C. § 35-37-4-4(b); Kielblock v. State (1994), Ind.App., 627 N.E.2d 816, 819, trans. denied. Further, if the identification of the assailant is not at issue, evidence of the victim's past sexual conduct is not admissible under I.C. § 35-37-4-4(b)(2). Posey v. State (1993), Ind.App., 624 N.E.2d 515, 519. DeMotte v. State (1990), Ind.App., 555 N.E.2d 1336, 1340-41, trans. denied.
For at least two reasons, the trial court correctly excluded Caley's proffered evidence. First, the evidence Caley presents is not of a specific instance of sexual activity which shows that some person other than Caley committed the acts of molestation. See I.C. § 35-37-4-4(b)(2). Rather, Caley merely alleges the existence of an ongoing sexual relationship between J.K. and his son and further admits that the proscribed evidence was intended "to explain the prosecuting witness' considerable sexual experience," Appellant's Brief at 27-28. Second, even if the evidence Caley presents had complied with the statutory requirements for the exception, the identity of J.K.'s molester was not at issue. See Posey, 624 N.E.2d at 519. Here, the victim consistently and unequivocally named Caley as the perpetrator of the acts of molestation and specifically testified regarding the times, places, and circumstances of the molestation. Accordingly, the trial court properly excluded evidence of J.K.'s alleged past sexual activity under the rape shield statute.
Caley next contends the trial court erred in admitting into evidence, over his objection, State's Exhibits 2, 3, and 4, consisting of three photographs of partially-clad adult women. According to Caley, the photographs were irrelevant and served only to inflame the passions of the jury and to prejudice them against him.
The admission of photographs is within the sound discretion of the trial court and the court's ruling will not be disturbed absent an abuse of that discretion. Marshall v. State (1993), Ind., 621 N.E.2d 308, 316. Photographs are admissible if they are relevant to any material issue in the case; that is, if they tend to prove or disprove a material fact or shed any light on the guilt or innocence of the accused. McCord v. State (1993), Ind., 622 N.E.2d 504, 511, reh'g denied; Jenkins v. State (1993), Ind., 627 N.E.2d 789, 798, cert. denied (1994), 513 U.S. 812, 115 S.Ct. 64, 130 L.Ed.2d 21; see also Evid.R. 401. Even assuming that the photographs at issue here were irrelevant and therefore inadmissible, Caley's argument must nonetheless fail because Caley opened the door to their admission.
The record shows that during the State's case in chief Caley cross examined the victim, J.K. In so doing he introduced into evidence Defendant's Exhibit "B" which was a letter written by the victim and given to the victim's mother. The letter included the following:
Mom did you see all the pictures of Wayne's other women. Well, if you didn't at least you saw three of them, one of them was dated "91" do you understand what I'm saying? He's been messing around on you....
Record at 210. Prior to Caley's introduction of the letter into evidence, the State had merely shown the pictures referenced therein to three witnesses, including J.K. However, none of the witnesses commented on the contents of the pictures and the State did not initially move to introduce them into evidence. Only after Caley introduced the letter into evidence, did the State then move to introduce the photographs into evidence. A defendant may open the door to otherwise inadmissible evidence by injecting an issue into the trial himself. Jones v. State (1992), Ind.App., 605 N.E.2d 193; Kelly v. State (1990), Ind.App., 555 N.E.2d 1341 trans. denied. Because Caley injected into the trial the issue of the photographs, he may not now complain that the trial court erred by admitting them into evidence. He opened the door on this issue. The trial court did not err.
Caley last asserts that the trial court erred in overruling his hearsay objection to the introduction of J.K.'s prior consistent statement as substantive evidence. According to Caley, the statement given by J.K. to Officer Kent Farthing corroborated J.K.'s in-court testimony and thus impermissibly bolstered her credibility. The State counters that the statement was properly admitted because it was offered to rebut an express or implied charge by Caley that the victim resented Caley's harsh disciplinary measures and sought revenge against him.
In Modesitt v. State (1991), Ind., 578 N.E.2d 649, our supreme court adopted Federal Rule of Evidence 801(d)(1) governing the admissibility of prior statements as substantive evidence. Pursuant to Modesitt, certain statements made out of court by witnesses who testify at trial and are subject to cross-examination concerning the statements are admissible, under certain circumstances. One such circumstance is present when the statement is consistent with the declarant's trial testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, and the statement is made before the motive to fabricate arose. Evans v. State (1994), Ind., 643 N.E.2d 877, 882-83; Craig v. State (1994), Ind., 630 N.E.2d 207, 209, reh'g denied. Here, J.K.'s statement to Officer Farthing was consistent with her in-court testimony and she was subject to cross-examination concerning the statement. However, although the statement was offered by the State for the purpose of rebutting Caley's express or implied charge against J.K. of recent fabrication or...
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