Kielblock v. State, 29A02-9208-CR-392

• Decision Date: 18 January 1994
• Docket Number: No. 29A02-9208-CR-392,29A02-9208-CR-392
• Citation: 627 N.E.2d 816
• Parties: Thomas KIELBLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 816

627 N.E.2d 816

Thomas KIELBLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 29A02-9208-CR-392.

Court of Appeals of Indiana,

Second District.

Jan. 18, 1994.

Rehearing Denied March 8, 1994.

Transfer Denied May 16, 1994.

Harry L. Sauce, Sandra M. Oakes, Harry L. Sauce and Associates, Noblesville, for appellant-defendant.

Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

FRIEDLANDER, Judge.

Thomas Kielblock brings this appeal challenging his conviction for child molesting as a class B felony. ¹ We affirm.

The events which form the basis of the charge against Kielblock occurred while T.A., a five-year old child, lived with her aunt, Cindy Dunham, in Clinton County during the week. On weekends, T.A. lived with her mother, Bonnie, and Bonnie's live-in boyfriend, Kielblock, in Hamilton County.

Over Thanksgiving weekend in 1990, T.A. was in one of the bathrooms in her mother and Kielblock's apartment when Kielblock entered the room, closed the door behind him, took his pajamas off, sat down on the toilet, and took off T.A.'s leotards. T.A. pulled down her panties. After Kielblock had T.A. come close to him, he picked her up, sat her on his lap and inserted his penis inside her vagina.

In early December of 1990, T.A.'s kindergarten teacher sent a paper home from school explaining that, during the previous week, T.A.'s class had viewed a film about "good touches and bad touches." Record at 519. Dunham discussed the movie with T.A. and reminded T.A. not to let anyone touch her in a bad way. Knowing that Kielblock had previously been charged with "something similar," Dunham specifically instructed T.A. not to let Kielblock touch her in a bad way. Record at 522. Following their discussion, T.A. told Dunham that Kielblock had already "touched [her] in bad ways." Record at 544. The next day, Dunham told T.A.'s teacher what had happened and an investigation ensued.

As a result of the investigation, the State filed an information charging Kielblock with child molesting as a class B felony. The State alleged that "on or between 11-20-90 and 11-25-90, [Kielblock] did perform sexual intercourse, to-wit: placing his penis in the vagina [of T.A.], a child who was then under the age of twelve (12) years...." Record at 28. In April of 1992, a jury found Kielblock guilty as charged and, a year later, the trial court denied Kielblock's belated motion to correct errors.

Kielblock now appeals, raising the following restated issues for our review:

(1) Did the trial court err by admitting evidence both of Kielblock's alleged sexual misconduct and of Kielblock's earlier conviction for child molestation?

(2) Did the trial court abuse its discretion by excluding evidence offered by Kielblock under an exception to the rape shield statute?

(3) Did the trial court err by allowing into evidence an audio tape (and a written transcript of the tape) of an interview with the victim?

(4) Is the evidence sufficient to sustain the jury's verdict?

I.

Relying on Lannan v. State (1992), Ind., 600 N.E.2d 1334, Kielblock seeks a new trial arguing that the trial court erred by admitting both T.A.'s testimony regarding previous alleged sexual misconduct by Kielblock and an abstract of judgment indicating Kielblock's earlier conviction for child molestation. We need not address this issue, however, because Kielblock failed to properly preserve the issue for review under Lannan, supra.

Only those cases pending on direct appeal where the issue has been properly preserved may be reviewed under Lannan, supra. Pirnat v. State (1993), Ind., 607 N.E.2d 973; Clausen v. State (1993), Ind., 622 N.E.2d 925. Where the defendant fails to properly preserve the issue, the admission of depraved sexual instinct evidence is not fundamental error. Ried v. State (1993), Ind., 615 N.E.2d 893. In order to have properly preserved the issue, the defendant must have presented the issue by objection at trial. Id. An issue is not preserved when an objection to evidence raised at trial differs from that which is presented on appeal. See Chandler v. State (1991), Ind., 581 N.E.2d 1233; Coffee v. State (1981), Ind., 426 N.E.2d 1318.

A review of the record before us indicates that, other than one objection claiming that the prosecutor was leading the witness, Kielblock made no objection to the evidence he now challenges. Record at 544-568, 547. Kielblock has failed to properly preserve this issue for review under Lannan.

II.

We next address Kielblock's challenge to the trial court's exclusion of evidence offered by Kielblock under an exception to Indiana's rape shield statute. ²

In a pre-trial hearing outside the presence of the jury, Kielblock made an offer to prove and presented the testimony of his brother, William, regarding an incident that William had allegedly witnessed involving T.A. and the defendant's son. William testified that, sometime between October of 1988 and April of 1989, he had been babysitting T.A., who was approximately four years old at the time, T.A.'s older brother, who was seven years old at the time, and the defendant's son, who was also seven years old at the time, at the defendant's residence in Elwood, Indiana. William testified that, while the three children thought they were alone, he witnessed the children commit a sexual act dissimilar to the act with which Kielblock had been charged.

The trial court ruled that this evidence should be excluded from trial because the conduct to which William had testified was protected by Indiana's rape shield statute. The court also ruled that the prejudicial impact of this evidence far outweighed any assistance the evidence might render to the jury. According to Kielblock, these rulings by the trial court constituted an abuse of discretion which precluded him from pursuing and casting doubt through cross-examination as to "the issues of credibility, mistake and knowledge of this very young victim." Reply Brief of Appellant at 8. Kielblock's argument lacks merit.

The policy of the rape shield statute is to shield the victims of sex crimes from a general inquiry into their past sexual conduct and to prevent the victims from feeling that they are on trial. Wood v. State (1989), Ind.App., 534 N.E.2d 1146. "On this basis, our courts have approved the exclusion of evidence of prior molestation by a different person under the rape shield statute." Id. at 1149. Three exceptions are contained within the statute, however. I.C. 35-37-4-4(b). One of these exceptions includes evidence of a "specific instance of sexual activity [which] 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). According to the statute, this evidence may be introduced at trial only if the judge finds that the evidence is material to a fact at issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh its probative value. Id. Such a determination is within the trial court's discretion. Thomas v. State (1984), Ind., 471 N.E.2d 677.

Kielblock directs us to Wood, supra, where the trial court erred by excluding evidence which should have been admitted under this exception to the rape shield statute, and claims his case is virtually identical. We disagree.

In Wood, the defendant was convicted after a jury trial of child molestation. On appeal, the fourth district held that the trial court had misapplied the rape shield statute by excluding all inquiry into the victim's past sexual conduct, including those instances of molestation by other perpetrators on or near the dates specified in the charges against the defendant. The appellate court believed that the evidence the defendant sought to introduce fell squarely within the exception provided for in the statute. The reviewing court found that the evidence indicated that another person with the defendant's same first name had committed one of the charged molestations and that yet another individual named John may have committed the second. In a footnote, the court stated "Through all of her testimony [the victim] was confused regarding days, months, and years.... Because the date of the last molestation is questionable at best and [another man] can be linked to various times and residences prior to [the date charged], testimony regarding his molestation of [the victim] was relevant and should have been admitted under the statute's exception."

Id. at 1150, n. 2.

Contrary to Kielblock's assertions, Wood is quite different from the case before us. First, there was no evidence that T.A. was confusing her perpetrator. She consistently accused the defendant of molesting her and identified him in court as the perpetrator. Second, Kielblock's brother, William, allegedly witnessed a sexual act of a different nature than that with which Kielblock had been charged. Third, T.A. was very specific about where Kielblock had molested her--in one of the two bathrooms in her mother's apartment. The acts which William allegedly witnessed occurred in his brother's home in another town. Finally, the incident with which Kielblock had been charged occurred over the Thanksgiving weekend in 1990, long after the incident about which William proposed to testify.

Because this evidence was not of a specific instance of sexual activity which showed that some person other than Kielblock had committed the act upon which the prosecution was founded, because the evidence was not material to a fact at issue in the case and because the prejudicial nature of the evidence outweighs its probative value, the trial court did not abuse its discretion by excluding the evidence.

III.

Kielblock next challenges the trial court's admission into evidence of an audio tape (and a written transcript of the tape) of an interview with T.A.

The record reveals that, during the trial and after T.A. had been excused from the witness stand, ...