Crabtree v. State, No. 33A01-8901-CR-00023

Docket NºNo. 33A01-8901-CR-00023
Citation547 N.E.2d 286
Case DateDecember 07, 1989
CourtCourt of Appeals of Indiana

Page 286

547 N.E.2d 286
Estell CRABTREE, Appellant (Defendant Below),
v.
STATE of Indiana Appellee (Plaintiff Below).
No. 33A01-8901-CR-00023.
Court of Appeals of Indiana,
First District.
Dec. 7, 1989.
Transfer Denied March 15, 1990.

Page 288

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Estell Crabtree appeals his conviction of child molesting, a class C felony. We affirm.

Crabtree presents the following issues for review:

(1) whether he was prejudiced and denied a fair trial by the admission of evidence that he engaged in sexual activity with a stepdaughter over twenty years earlier;

(2) whether the verdict is supported by sufficient evidence or contrary to law;

(3) whether the trial court erred by refusing Crabtree's final instructions numbered 1, 2, 5 and 6; and,

(4) whether the trial court erred by refusing to permit Crabtree to act as co-counsel at trial.

I.

Crabtree argues that evidence he molested a stepdaughter over twenty years before he allegedly committed the acts at issue in this case was too remote to raise a reliable inference he did it again, and whatever probative value it had was outweighed by its prejudicial impact and likelihood of tainting the fairness of the trial.

Crabtree acknowledges that in sodomy, incest and child molesting cases, proof of a defendant's prior uncharged sexual offenses is admissible, subject to exclusion in the discretion of the trial court for remoteness, to demonstrate that a defendant possesses a depraved sexual instinct. Lehiy v. State (1986), Ind.App., 501 N.E.2d 451, affirmed, 509 N.E.2d 1116. Crabtree also acknowledges that prior acts committed as many as thirty years before have been held not too remote for admission. See, e.g., Lawrence v. State (1984), Ind., 464 N.E.2d 923 (twenty-two years); Dockery v. State (1987), Ind.App., 504 N.E.2d 291 (seventeen to thirty years). Nonetheless, Crabtree urges us to adopt the rationale of the Indiana Supreme Court in Clark v. State (1989), Ind., 536 N.E.2d 493, a drug case involving the common scheme or plan exception to the general rule precluding admission, and apply the same reasoning to the facts of this case. Crabtree maintains that a reliable, probative correlation cannot be made between sexual misconduct occurring ten, twenty or thirty years ago and a charged child molesting offense. In cases where the evidence is extremely remote, Crabtree argues that the inference becomes solely the impermissible one prohibited by the general rule, namely, that having committed a crime once he has done so again.

We observe however that in Clark the court held not that the prior acts were too remote to be admissible, but that they

Page 289

were both too remote and too dissimilar to be relevant evidence of a common scheme or plan. The court reiterated that to be admissible as evidence of a preconceived plan which includes the charged crimes, the crimes must be so related in character, time and place of commission as to establish some plan which embraces both the prior criminal activity and the charged crime. 536 N.E.2d at 494. The common scheme or plan exception requires that the uncharged crime be tangibly connected to the one for which the defendant is on trial. Without some nexus, the evidence would wrongly impugn the defendant's character without being probative of a material fact. Id.

Under the depraved sexual instinct rule, however, the need for distinctive similarity between the two acts is relaxed because the rule recognizes not a single criminal plan but a disposition or proclivity toward certain sexual conduct in continuando in nature such that it is highly probable the emotional or mental disposition exhibited with respect to certain acts before has continued to the time of the act charged. See, Lehiy, supra at 455; Pieper v. State (1975), 262 Ind. 580, 321 N.E.2d 196, 198; State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691, 695. The theory of this exception is that as the disposition of the accused at the time of the act charged is relevant, evidence that at some prior time he was similarly disposed is also materially relevant, Bracey v. State (D.C.Cir.1944), 142 F.2d 85 cited with approval in Pieper, supra, and of strong probative force since evidence of an earlier disposition makes it antecedently probable that a given future event will occur. See, State v. Markins (1884), 95 Ind. 464, 465.

Evidence of an earlier sexual offense has also been admitted on the theory that such evidence serves to bolster the credibility of the prosecuting witness in situations where the accusations or acts seem unnatural or improbable standing alone, and the witness is not likely to be believed. Stwalley v. State (1989), Ind., 534 N.E.2d 229, 231; Wyrick v. State (1989), Ind., 533 N.E.2d 118, 120; Grey v. State (1980), 273 Ind. 439, 404 N.E.2d 1348, 1352; Pieper v. State, supra 321 N.E.2d at 199. Cf., also, Borolos v. State (1924), 194 Ind. 469, 143 N.E. 360 (evidence of prior sexual offenses competent to explain witness's passive participation and silence and to rebut inference that story told too improbable to be true).

The testimony offered against Crabtree showed that the victim of the earlier incident was Crabtree's stepdaughter from a former marriage, that he began fondling her when she was seven or eight, and that he tried to have sexual intercourse with her when she was about ten. He succeeded in having sexual intercourse with her when she was thirteen or fourteen and in addition forced her to have oral and anal intercourse. 1 As with the victim of the charged offense, Crabtree threatened to kill her if she told anyone. Her mother did not believe her when the earlier victim reported the instances to her. Given the differences in rationales, in particular, that a depraved sexual instinct is perceived to be continuous in nature, and the similar circumstances involved, we are unwilling to hold that the admission here of evidence of acts occurring from twenty-two to thirty years earlier is so lacking in probative value as to constitute an abuse of discretion and prejudicial error.

II.

Crabtree makes a two-part sufficiency argument. First, he argues the verdict is not supported by sufficient evidence because the State failed to prove that the alleged act of deviate sexual conduct occurred at a time the victim was not yet sixteen years old. Second, Crabtree contends the evidence that Crabtree had "anal intercourse" with the victim is insufficient to establish Crabtree accomplished penetration.

Although admittedly the testimony of the various witnesses is at times inconsistent with one another and may also be internally

Page 290

inconsistent, we find credible evidence establishing that the victim was at least twelve years of age but under sixteen years of age at the time the act of deviate sexual conduct occurred. The victim's date of birth was not established. However, she testified that at the time her mother married the defendant in 1972, she was three years old. Necessarily then, she would have turned sixteen in 1985 and the relevant years would be 1981-1985. The victim testified that she was 15 at the time the alleged act of deviate sexual conduct occurred (R. 256) but did not tell her mother about the ongoing sexual relationship with the defendant until the end of May, 1985. Officer Jackson, who took the victim's statement on May 29, 1985, testified that the victim was 15 at that time. Finally, the victim's mother indicated that her divorce from the defendant was final in 1984 but that she first filed for divorce in 1982. The victim testified that the incident involving anal intercourse occurred during a period when the defendant and...

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10 practice notes
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1993
    ...for an abuse of that discretion. Woods v. State (1992), Ind.App., 587 N.E.2d 718, 722, trans. denied; Crabtree v. State (1989), Ind.App., 547 N.E.2d 286, 292, trans. denied. When the trial court refuses to give an instruction, we must determine whether the tendered instruction correctly sta......
  • Hopkins v. State, No. 33S00-8905-CR-364
    • United States
    • Indiana Supreme Court of Indiana
    • December 3, 1991
    ...beyond a reasonable doubt. Id. at 13, 284 N.E.2d at 790. As pointed out by the Court of Appeals in Crabtree v. State (1989), Ind.App., 547 N.E.2d 286, this omission alone renders the instruction fatally defective. As it was not a correct statement of the law, there was no error in refusing ......
  • Barrett v. State, No. 55A01-9604-CR-135
    • United States
    • Indiana Court of Appeals of Indiana
    • December 31, 1996
    ...jury on the definition of "knowing." A trial court has the discretion to give or refuse to give a jury instruction. Crabtree v. State, 547 N.E.2d 286, 292 (Ind.Ct.App.1989), trans. denied. We review the Page 1118 trial court's decision for an abuse of discretion. Id. When making our determi......
  • Downey v. State, No. 35A02-9904-CR-241.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 2000
    ...While proof of anal penetration may not be required to convict of child molesting by deviate sexual conduct, Crabtree v. State, 547 N.E.2d 286, 291 (Ind.Ct.App.1989), for an act to "involve" the anus there must be contact with the anus. Cf. Knowlton v. State, 178 Ind. App. 420, 427 n. 4, 38......
  • Request a trial to view additional results
10 cases
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1993
    ...for an abuse of that discretion. Woods v. State (1992), Ind.App., 587 N.E.2d 718, 722, trans. denied; Crabtree v. State (1989), Ind.App., 547 N.E.2d 286, 292, trans. denied. When the trial court refuses to give an instruction, we must determine whether the tendered instruction correctly sta......
  • Hopkins v. State, No. 33S00-8905-CR-364
    • United States
    • Indiana Supreme Court of Indiana
    • December 3, 1991
    ...beyond a reasonable doubt. Id. at 13, 284 N.E.2d at 790. As pointed out by the Court of Appeals in Crabtree v. State (1989), Ind.App., 547 N.E.2d 286, this omission alone renders the instruction fatally defective. As it was not a correct statement of the law, there was no error in refusing ......
  • Barrett v. State, No. 55A01-9604-CR-135
    • United States
    • Indiana Court of Appeals of Indiana
    • December 31, 1996
    ...jury on the definition of "knowing." A trial court has the discretion to give or refuse to give a jury instruction. Crabtree v. State, 547 N.E.2d 286, 292 (Ind.Ct.App.1989), trans. denied. We review the Page 1118 trial court's decision for an abuse of discretion. Id. When making our determi......
  • Downey v. State, No. 35A02-9904-CR-241.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 2000
    ...While proof of anal penetration may not be required to convict of child molesting by deviate sexual conduct, Crabtree v. State, 547 N.E.2d 286, 291 (Ind.Ct.App.1989), for an act to "involve" the anus there must be contact with the anus. Cf. Knowlton v. State, 178 Ind. App. 420, 427 n. 4, 38......
  • Request a trial to view additional results

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