Kielblock v. State, 29A02-9208-CR-392
| Docket Nº | No. 29A02-9208-CR-392 |
| Citation | 627 N.E.2d 816 |
| Case Date | January 18, 1994 |
| Court | Court of Appeals of Indiana |
Page 816
v.
STATE of Indiana, Appellee-Plaintiff.
Second District.
Rehearing Denied March 8, 1994.
Transfer Denied May 16, 1994.
Page 817
Harry L. Sauce, Sandra M. Oakes, Harry L. Sauce and Associates, Noblesville, for appellant-defendant.
Page 818
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
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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...
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Fowler v. State, 49S02-0412-CR-509.
...not have recalled the witness, a violation of the Confrontation Clause was not established. Id. at 1189-90; see also Kielblock v. State, 627 N.E.2d 816, 821 (Ind.Ct.App.1994) (finding no abuse of discretion in admission of audiotape and transcript of victim interview where victim had testif......
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Clark v. State, 48S00-0205-CR-270.
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Goodner v. State, 49S00-9708-CR-469.
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