Craun v. State
| Citation | 762 N.E.2d 230 |
| Decision Date | 06 February 2002 |
| Docket Number | No. 49A02-0012-CR-810.,49A02-0012-CR-810. |
| Parties | David B. CRAUN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Patrick Murphy, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Joseph A. Samreta, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant David B. Craun ("Craun") appeals his convictions for two counts of child molesting,2 both as Class C felonies. We reverse and remand for a new trial.
Craun presents two issues for review, one of which is dispositive:3 whether the trial court erred in admitting evidence of prior bad acts under Indiana Evidence Rule 404(b).
The facts most favorable to the convictions indicate that Craun lived with his wife Nancy Craun ("Nancy") and her two daughters: H.D., born on August 21, 1990, and her older sister, D.D.5 On June 25, 1999, Craun was home with H.D. and his two sons from a previous marriage. That evening, Craun asked H.D. to come to his room, and she complied. As H.D. lay on the bed next to Craun, he placed his hand down her pants and rubbed her vagina. Craun also rubbed H.D.'s chest under her clothes. On July 28, 1999, H.D. slept on the floor of Craun and Nancy's bedroom on her mother's side of the bed. While Nancy was in the shower, Craun moved H.D. onto the bed and rubbed her bottom under her clothes.
On August 2, 1999, H.D. told Nancy that Craun had touched her inappropriately. Nancy confronted Craun, and he initially denied the allegations. Subsequently, H.D., Nancy, and neighbor LaVonna Swindle ("Swindle") confronted Craun about H.D.'s accusation, as well as accusations made by D.D. and Swindle's daughter, E.W.6 Nancy had told Craun not to make H.D. out to be a liar. H.D. told Craun, "You know you did it, and you can't deny it." Craun flatly denied molesting E.W.7 but apologized to H.D. and indicated that he never meant to hurt her. On August 6, 1999, the State charged Craun with six counts of child molestation involving H.D., D.D., and E.W. The trial court later severed the charges. On September 19, 2000, Craun filed a motion in limine seeking to exclude, inter alia, any "bad act" testimony from E.W. and D.D. regarding their molestation allegations or any "alleged misconduct" regarding Craun "and an ongoing nature of touching [E.W.], [H.D.], or [D.D.]" In an accompanying memorandum, Craun stated that since neither he nor his counsel had "indicated that any `claim of particular contrary intent'" would be presented during trial, the State should "be prohibited from admitting said evidence." At a pretrial conference, the court granted Craun's motion with the limited exception of allowing the State to establish the duration of Craun's ongoing touching of H.D.
On cross-examination, Craun's counsel asked H.D., "Was there ever .... in the times that you described to the jury on the 25th of June and on the 28th of June [sic] was [Craun] tickling you when you were touched?" H.D. answered, "No." On direct examination, Craun testified that he had apologized to H.D. because he and Nancy were "in a hurry" to go to football practice and cheerleading practice, respectively; because Nancy had "already told [him] not to make [H.D.] out to be a liar"; and because he "didn't feel that it was appropriate at that time to try to continue that conversation." The following exchange occurred regarding the events of June 25, 1999:
At the close of direct examination, the State initiated the following sidebar:
I think that [Craun] has raised the defense of accident. He is saying that this tickling is what upset [H.D.] that night and I think he's claiming it's.... I didn't touch her sexually I touched her on her upper thigh to tickle her and I think that opens the door to some of the other girls. And I want to be able to question him about that.
After a recess and additional argument outside the presence of the jury, the following exchange occurred:
When the State asked whether it could also question Craun regarding his denial of E.W.'s and D.D.'s accusations to establish that his apology to H.D. was made as an admission rather than for the purpose of avoiding a confrontation, the trial court took a brief recess and issued the following ruling:
The trial court acknowledged the "defense position,"8 and the State cross-examined Craun as follows:
After the defense rested, the State called E.W. as a rebuttal witness. Before questioning commenced, Craun's counsel raised the following objection:
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Greenboam v. State, 46A03-0103-CR-79.
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