Davis v. State

• Citation: 749 N.E.2d 552
• Decision Date: 02 May 2001
• Docket Number: No. 21A01-0008-CR-256.,21A01-0008-CR-256.
• Parties: Charles W. DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

749 N.E.2d 552

Charles W. DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 21A01-0008-CR-256.

Court of Appeals of Indiana.

May 2, 2001.

Transfer Denied August 9, 2001.

Thomas M. Thompson, Smith & Thompson Connersville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, JUDGE.

Appellant-defendant Charles W. Davis appeals his convictions for ten counts of Class A felony Child Molesting.¹ Specifically, Davis asserts that the trial court's exclusion of evidence regarding the victim's past sexual conduct violated his right to confrontation, and the statements he made following a polygraph examination were erroneously admitted at trial.

FACTS

The facts most favorable to the verdict are that in August 1996, twelve-year-old L.P. told her grandmother that she was going to babysit for a neighbor and then spend the rest of the night with a girlfriend. Instead, L.P. stayed out all night with a young boy. After L.P. claimed that she had been raped, a physician conducted an examination. While the doctor indicated that L.P. had not had sex on the night of the alleged rape, it was determined that L.P. had been sexually active on prior occasions.

L.P. subsequently recanted her claim that the boy had raped her, but told a detective who interviewed her that a man wearing a black hat and ski mask was responsible for the assault. L.P. then told Detective Bill Cox of the Connersville Police Department that it was actually Davis, her forty-six-year-old stepfather, who had engaged in sexual intercourse with L.P. on ten different occasions. L.P. told Detective Cox that she recorded the dates on a calendar by marking her initials on it every time Davis had sex with her.

On August 17, 1998, State Police Officer Paul Strittmatter conducted a polygraph examination of Davis regarding L.P.'s claim that he had sexual intercourse with her. Davis signed a stipulation that permitted any admissions or confessions of guilt made during any phase of the examination to be introduced as evidence. Following the examination, Officer Strittmatter informed Davis that his answers to the questions pertaining to L.P. indicated deception. Officer Strittmatter then conducted a post-polygraph interview to permit Davis to explain his answers. During the course of the interview, Davis denied having sexual intercourse with L.P., but admitted that he had fondled L.P.'s vagina. Davis was then charged with ten counts of child molesting. All acts were alleged to have occurred between February 1, 1996 and August 7, 1996.

At a jury trial which commenced on March 28, 2000, the trial court allowed Davis's statement to be admitted into evidence.² At trial, the State remarked during its opening statement that L.P. had been taken to the hospital and "was examined and determined that she had at twelve (12) years old been sexually active." Record at 194. This evidence was also introduced at trial. In response, Davis attempted to introduce evidence of L.P.'s sexual activity with persons other than Davis. Specifically, L.P. admitted, during an offer of proof, that she had previously engaged in sexual intercourse with another man sometime in 1996. R. at 230-36. L.P. also admitted that her grandmother's former husband had attempted to have sex with her on at least one occasion. The trial court, however, excluded this evidence, citing Indiana's Rape Shield law.³ Davis was ultimately convicted on all counts as charged, and he now appeals.

DISCUSSION AND DECISION

I. Rape Shield Law Issue

Davis argues that his right to confront witnesses against him was violated because the trial court refused to admit evidence regarding L.P.'s prior sexual conduct. Specifically, Davis contends that such evidence was admissible because the physician's report had been admitted into evidence indicating that L.P. had been sexually active prior to the time that L.P. had been examined by the physician. Thus, Davis argues that he should have been permitted to present evidence of L.P.'s prior sexual activity with an individual other than Davis in order "to complete the picture." Appellant's brief at 12.

To resolve this issue, we first turn to the relevant provisions of the Rape Shield Law, which is embodied in Ind.Evidence Rule 412:

(a) In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or witness may not be admitted, except:

(1) evidence of the victim's or of a witness's past sexual conduct with the defendant;

(2) evidence which shows that some person other than the defendant committed the act upon which the prosecution is founded.⁴

To show a violation of the Confrontation Clause with respect to this issue, our supreme court has determined that the defendant must demonstrate that he was prohibited from engaging in otherwise appropriate cross-examination "designed to show a prototypical form of bias on the part of the witness, and thereby from showing the jury facts from which it could appropriately draw inferences relating to the witness's reliability." Rubalcada v. State, 731 N.E.2d 1015, 1021 (Ind.2000). Trial judges are afforded wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness's safety or interrogation that is repetitive or only marginally relevant. Logan v. State, 729 N.E.2d 125, 134 (Ind.2000).

We also note that the purpose of the Rape Shield law is to encourage the reporting of sexual assaults and to prevent victims from feeling as though they are on trial for their sexual histories. Hook v. State, 705 N.E.2d 219, 221 (Ind.Ct.App. 1999), trans. denied. This court will not engraft additional exceptions to the rape shield prohibition against inquiry into the past sexual activities of a victim. Little v. State, 650 N.E.2d 343, 345 (Ind.Ct.App. 1995).

Notwithstanding the above, Davis urges that evidence of L.P.'s prior sexual conduct should have been admitted in light of our opinion in Steward v. State, 636 N.E.2d 143, 149 (Ind.Ct.App.1994), affirmed, 652 N.E.2d 490 (Ind.1995), where we observed that:

[T]he risk of partial corroboration arises when the State introduces evidence of the victim's physical or psychological condition to prove that sexual contact occurred, and by implication, that the Defendant was the perpetrator. Once admitted, such evidence may be impeached by the introduction through cross-examination of specific evidence which supports a reasonable inference and tends to prove that the conduct of a perpetrator other than the Defendant is responsible for the victim's condition which the State has placed at issue. . . . [W]e emphasize that both the necessity for and the constitutional right to such cross-examination are limited to these specific and narrow circumstances and clearly do not permit a general inquiry into the victim's sexual past or allow the defendant to posit hypothetical perpetrators, an inquiry which would violate the Rape Shield Statute.

In Steward, the victim accused four other men, apart from the defendant, of molesting her around the same time that she had made accusations against the defendant. Thus, there was a substantial question as to the identity of the perpetrator. Inasmuch as the State offered evidence that the complaining witness's behavior was consistent with a child who had been molested and also that her behavior improved after she accused the defendant of the molesting, we determined that the jury should also have been informed that the complaining witness accused four others of molesting her around the same time that the defendant had allegedly assaulted her. Id. at 150. Thus, we concluded it was error to permit the State to present corroborating evidence linking the defendant to the act of molestation, while precluding the defendant from presenting exculpatory evidence concerning the accusations of prior molestations by men other than the defendant. Id.

Here, the State commented on L.P.'s prior sexual activity in its opening statement. L.P.'s grandmother testified that the doctor informed her on the night of the examination that L.P. had been sexually active. During the offer of proof, L.P. admitted having sex with another individual sometime in 1996. She acknowledged that this incident occurred before the hospital examination had been performed. R. at 233-34. Thus, while L.P. accused Davis of having sex with her, the...