Hook v. State

Decision Date02 February 1999
Docket NumberNo. 48A02-9802-CR-118,48A02-9802-CR-118
Citation705 N.E.2d 219
PartiesSteven E. HOOK, Appellant-Defendant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court
OPINION

SULLIVAN, Judge.

Appellant, Steven E. Hook (Hook), appeals his convictions upon two counts of Child Molestation, both Class C felonies.

We affirm.

The facts most favorable to the jury's verdict are that in June of 1995, Hook did on two occasions molest M.K., a child of 13. After the molestations had taken place, M.K.'s cousin witnessed Hook embrace M.K., and she reported that he had his hands on her buttocks. M.K.'s cousin reported what she had seen to M.K.'s mother, who confronted M.K. as to her relationship with Hook. M.K. told her mother that nothing was going on between her and Hook. However, M.K.'s brother discovered a love note that M.K. had written to Hook, and he gave the note to his mother. Upon reading the note, which contained references to inappropriate sexual conduct between M.K. and Hook, M.K.'s mother called the police.

Hook presents two issues on appeal:

I. Whether the trial court erred in excluding evidence of M.K.'s past sexual conduct after the prosecutor allegedly "opened the door" to that evidence in his opening argument.

II. Whether the trial court erred in allowing Detective Koons (Koons) to testify that based upon his professional experience, it was not uncommon for children involved in child molestation cases to give inconsistent statements over time.

Decisions on the admission and exclusion of evidence are within the broad discretion of the trial court. We will reverse those rulings only upon a showing by the appellant that the court abused its discretion in making those decisions. Kremer v. State (1987) Ind., 514 N.E.2d 1068, 1073, reh'g. denied.

I. Evidence of M.K.'s past sexual conduct

The prosecutor began his opening statement with the following account:

"This story begins like a story book. A 13-year-old girl, [M.K.], summer vacation, new boyfriend, in love at 13, writing love notes telling the person how much she loves him, flirting, kissing, exploring new things ... in June of 1995, exploring bodies, finding out new things, like a story book." Record at 144.

Hook contends that these statements waived the rape shield statute and opened the door for Hook to offer evidence of M.K.'s past sexual conduct. He claims that the statements created the false impression that the alleged conduct with Hook was a new experience for her in order to provide a basis for claiming that M.K.'s failure to report the incidents with Hook "was due to her inexperience in such matters and resulting confusion about what she should do." Appellant's Brief at 7. However, Hook fails to point to a place in the record where the prosecutor relates M.K.'s exploration of new things to her failure to report.

Additionally, the rape shield statute was created precisely to exclude evidence such as was offered here. The purpose of the statute is to encourage the reporting of sexual assaults and to prevent victims from feeling as though they are on trial for their sexual histories. Little v. State (1995) Ind.App., 650 N.E.2d 343, 344-45. The statute contains three specific exceptions to the rule that evidence of a victim's past sexual conduct is inadmissible, and our courts have created a fourth exception which permits evidence that the victim has in the past made demonstrably false accusations of sexual misconduct against others. See I.C. 35-37-4-4(b)(1)-(3) (Burns Code Ed. Repl.1998); Little v. State (1980) Ind.App., 413 N.E.2d 639, 643. Hook's purpose for offering the evidence of M.K.'s past sexual conduct does not fall within any of these established exceptions, 1 and we will not frustrate the purpose of the statute by "graft[ing] additional exceptions onto the statute." Kelly v. State (1992) Ind.App., 586 N.E.2d 927, 929, trans. denied.

By dictum, we considered a similar argument in Tyson v. State (1993) Ind.App., 619 N.E.2d 276, 290, n. 15, trans. denied, cert. denied, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 562. There, the appellant, in an appeal from a conviction for rape, argued that the state's opening and closing arguments created an "angelic image" of the victim in that case, and that he should have been entitled to impeach that image with evidence of the victim's sexual history. This court concluded that the trial court properly excluded the evidence of the victim's past sexual conduct, although it was arguably relevant to issues such as consent or witness credibility, because it was not offered under any of the exceptions to the rape shield statute. In this case as well, where the relevance of the proffered evidence is questionable, the trial judge's exclusion of the evidence was not an abuse of discretion.

Hook cites to Steward v. State (1994) Ind.App., 636 N.E.2d 143, 150, summarily aff'd. in part and aff'd. in part, 652 N.E.2d 490, reh'g. denied, for the proposition that the prosecutor may open the door to the admission of evidence otherwise barred by the rape shield statute. Unlike the case before us, however, the court in Steward found that the exclusion of the evidence in that case violated the defendant's Sixth Amendment right to cross-examination. This holding was not disturbed by our Supreme Court upon transfer. See infra note 3, at 7. The rape shield statute itself has been challenged upon grounds that it violates a defendant's right to confrontation. However, each time this challenge has been made, our courts have upheld the statute as constitutional, absent a showing that its use actually impinges on the defendant's constitutional right of cross-examination. See Woodford v. State (1986) Ind., 488 N.E.2d 1121, 1126; Thomas v. State (1984) Ind., 471 N.E.2d 677, 679, reh'g. denied. Therefore, because Hook does not argue that the exclusion of the proffered evidence infringed upon his right to cross-examination and because the evidence does not fall within any exception to the rape shield statute, the trial court correctly excluded the evidence.

II. Koons' testimony

Hook argues that the trial court erred in allowing Koons to testify that in his experience dealing with child molestation cases, it was not uncommon for children to give inconsistent statements over time. Hook contends that this testimony "improperly bolstered [M.K.'s] credibility by inviting the jury to disregard her inconsistent statements as being normal events." Appellant's Brief at 11. Hook is correct in his assertion that Indiana has a strong policy against allowing a witness to offer an opinion about another witness' credibility. The policy is based upon the premise that the jury is to be the sole judge of credibility, and by allowing a witness to judge the credibility of another witness, the province of the jury is invaded upon. See Shepherd v. State (1989) Ind., 538 N.E.2d 242, 243, reh'g. denied.

However, in each Indiana case cited by Hook, there is a crucial difference in the testimony offered and the testimony offered in this case. In reversing the convictions of the appellants in those cases, the courts found that the testimony elicited directly vouched for the credibility of another witness' testimony. See, Stewart v. State (1990) Ind., 555 N.E.2d 121, 125 (Group home psychologist testified that, in her opinion, the victim's testimony about his experiences with the defendant was trustworthy.); Jones v. State (1991) Ind.App., 581 N.E.2d 1256, 1258 (Welfare Protective Service investigator testified that, based on her interviews with the victim, she believed that the victim had been molested.); Ulrich v. State (1990) Ind.App., 550 N.E.2d 114, 115 (Psychiatrist testified that "[t]he consistency of that memory indicates to me that she [is] reliable and credible."), trans. denied; Douglas v. State (1985) Ind.App., 484 N.E.2d 610, 611 (Psychiatric social worker testified, "I...

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