Knisley v. State, No. 4-484A115

Docket NºNo. 4-484A115
Citation474 N.E.2d 513
Case DateFebruary 13, 1985
CourtCourt of Appeals of Indiana

Page 513

474 N.E.2d 513
John J. KNISLEY, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 4-484A115.
Court of Appeals of Indiana,
Fourth District.
Feb. 13, 1985.

Page 514

Douglas O. Beerbower, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Appellant John J. Knisley (John) appeals his jury conviction in the Allen Superior Court for child molesting, a class B felony under IND.CODE 35-42-4-3(a).

Affirmed.

ISSUES

Knisley presents three issues for our review:

1. Did the admission of testimony as to Knisley's sexual relationships with T.L. and F.H. violate IND.CODE 35-37-4-4?

2. Was the admission of testimony as to Knisley's sexual relationships with T.L. and F.H. outside the scope of proper cross-examination and rebuttal?

3. Was the evidence at trial sufficient to support Knisley's conviction of child molesting, a class B felony?

FACTS

In August 1981, 9-year-old E.L. came to live with Rita Knisley (Mrs. Knisley), her grandmother, and John Knisley, her step grandfather. Two or three months after E.L. moved in with the Knisleys, John began tickling E.L. around her breast area, outside her clothing. Two or three months after the tickling started the Knisleys told E.L. she had to learn to grow up, she could be in their bedroom when they were unclothed so they could teach her about sex.

After a month or two of demonstrations, John had intercourse with E.L. There were ten or eleven such incidents after which John gave E.L. money. Knisley told E.L. not to say anything about the incidents because he would go to jail if she did.

E.L.'s aunts T.L. and F.H., both of whom previously had been molested while living at home with John, questioned her about being molested. After questioning E.L., T.L. and F.H. made allegations against John to Pat Knox, a caseworker for Child Protective Services of Ft. Wayne.

Pat Knox and officer Gerri Smith of the Juvenile Division, Allen County Police Department, investigated the matter. Then charges were filed and this case ensued. At trial, John, on direct, testified he had not had sexual relations with E.L. On cross-examination John admitted to sexual relations with T.L. but denied relations with F.H. On rebuttal the trial court allowed testimony by F.H. but precluded testimony by T.L. John was convicted of class B felony child molesting, and was committed to the Indiana Department of Corrections for eight years.

DISCUSSION AND DECISION

I. Testimony of Knisley's Past Sexual Relationships Not

Violative of IC 35-37-4-4

Knisley first contends admission of evidence of his sexual history with T.L. and F.H. was reversible error, claiming IC 35-

Page 515

37-4-4 prohibits such evidence in a sex crime trial. We disagree.

Commonly referred to as the Rape Shield statute, IC 35-37-4-4 provides in pertinent part:

Sec. 4. (a) In a prosecution for a sex crime as defined in IC 35-42-2:

(1) evidence of the victim's past sexual conduct;

(2) evidence of the past sexual conduct of a witness other than the accused;

* * *

(4) opinion evidence of the past sexual conduct of a witness other than the accused;

* * *

(6) reputation evidence of the past sexual conduct of a witness other than the accused;

may not be admitted, nor may reference be made to this evidence in the presence of the jury, except as provided in this chapter....

Knisley himself is not protected from having his past sexual history divulged since the statute clearly excludes the accused from its protection, cf. IC 35-37-4-4(a)(2) above. Knisley, however, argues his history is intertwined with that of T.L. and F.H. Thus, he opines, introduction of his history is also introduction of their history; because they were witnesses, their sexual history is excluded by the statute.

As to T.L., Knisley's contention is without merit. IC 35-37-4-4 restricts testimony only of the past sexual history of the victim or witnesses other than the accused. Since T.L. was neither the victim in this action nor did she testify as a witness, the statute clearly does not apply to her.

As to F.H., Knisley's interpretation of this statute would violate legislative intent in this area. This statute was designed to protect witnesses as well as victims, not to provide a defense for the accused. Forrester v. State, (1982) Ind., 440 N.E.2d 475, 479; Skaggs v. State, (1982) Ind.App., 438 N.E.2d 301, 306. Here, the testimony of F.H. concerned her sexual experiences with the accused. The intent of the Rape Shield statute is to protect those who testify on some matter in such cases from having their entire sexual history exposed to the jury as an impeachment tool. When permitted in the past, the real focus of the trial became diffused as the trial's emphasis shifted from the accused's sexual conduct to that of the victim or a witness. Limitation of this diffusion is the purpose of the Rape Shield statute. Skaggs, 438 N.E.2d at 306.

F.H.'s testimony as to Knisley's past sexual conduct was not prohibited by IC 35-37-4-4.

II. Testimony as to Knisley's Sexual Relations with T.L. and

F.H. within the Permissible Scope of

Cross-Examination and Rebuttal

Knisley next contends the testimony regarding his sexual relationship with T.L. and F.H. was outside the scope of proper cross-examination and rebuttal. We disagree.

During its case-in-chief, the State presented no evidence of Knisley's prior sexual acts with T.L. and F.H. However, during direct examination of Knisley by defense counsel, Knisley stated he had not committed the crime charged. During cross-examination, the prosecutor asked Knisley if he had committed similar acts with T.L. and F.H. After defense counsel's objection the question was beyond the scope of cross-examination was overruled, Knisley admitted to prior sexual relations with T.L. but denied prior relations with F.H. Also, during the State's rebuttal, F.H. testified Knisley raped her when she was 17. Her testimony unquestionably would have been admissible in the State's case-in-chief under the depraved sexual instinct rule. See Jarrett v. State, (1984) Ind., 465 N.E.2d 1097; Lawrence v. State, (1984) Ind., 464 N.E.2d 923.

While we consistently have held evidence of other criminal activity is inadmissible, except where it may be used to prove intent, motive, purpose, identity, or common scheme or plan, our supreme court has

Page 516

carved out an exception thereto in sex crime cases to those acts showing a "depraved sexual instinct." Jarrett, 465 N.E.2d at 1100; Caccavallo v. State, (1982) Ind., 436 N.E.2d 775, 776; Grey v. State, (1980) 273 Ind. 439, 446, 404 N.E.2d 1348, 1353. Such acts need not be identical to the crime charged. It is sufficient if a similar instinct...

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14 practice notes
  • Lehiy v. State, No. 50A03-8601-CR-30
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1986
    ...et al. (1884), 95 Ind. 464, 48 Am.Rep. 733 involving incest. Finally, Judge Garrard makes citation to Knisley v. State (1985), Ind.App., 474 N.E.2d 513. Knisley involved the charge of child molesting, the victim being the granddaughter of the defendant's wife. The two aunts of the victim te......
  • Baxter v. State, No. 385S77
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1988
    ...molesting and incest, even when not reduced to convictions, has been held relevant and probative. Knisley v. State (1985), Ind.App., 474 N.E.2d 513. In this case, evidence of uncharged sex crimes which Baxter perpetrated on the victims was relevant to establish his depraved sexual V. Compet......
  • Hobson v. State, No. 64A03-8602-CR-54
    • United States
    • Indiana Court of Appeals of Indiana
    • July 23, 1986
    ...has been held to be relevant and probative under this rule. Lawrence, 464 N.E.2d at Page 745 924; Knisley v. State (1985), Ind.App., 474 N.E.2d 513, 516; Puckett v. State (1982), Ind.App., 443 N.E.2d 77. The incidents related by R.B. and K.W. manifest Hobson's predilection to engage in sexu......
  • Stout v. State, No. 48A02-9210-CR-509
    • United States
    • Indiana Court of Appeals of Indiana
    • April 26, 1993
    ...of evidence of oral and anal intercourse in prosecution for criminal deviate conduct and confinement); Knisley v. State (1985), Ind.App., 474 N.E.2d 513, 517, trans. Although Stout objected to the admission of the uncharged rape as evidence of a depraved sexual instinct, at no time did he o......
  • Request a trial to view additional results
14 cases
  • Lehiy v. State, No. 50A03-8601-CR-30
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1986
    ...et al. (1884), 95 Ind. 464, 48 Am.Rep. 733 involving incest. Finally, Judge Garrard makes citation to Knisley v. State (1985), Ind.App., 474 N.E.2d 513. Knisley involved the charge of child molesting, the victim being the granddaughter of the defendant's wife. The two aunts of the victim te......
  • Baxter v. State, No. 385S77
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1988
    ...molesting and incest, even when not reduced to convictions, has been held relevant and probative. Knisley v. State (1985), Ind.App., 474 N.E.2d 513. In this case, evidence of uncharged sex crimes which Baxter perpetrated on the victims was relevant to establish his depraved sexual V. Compet......
  • Hobson v. State, No. 64A03-8602-CR-54
    • United States
    • Indiana Court of Appeals of Indiana
    • July 23, 1986
    ...has been held to be relevant and probative under this rule. Lawrence, 464 N.E.2d at Page 745 924; Knisley v. State (1985), Ind.App., 474 N.E.2d 513, 516; Puckett v. State (1982), Ind.App., 443 N.E.2d 77. The incidents related by R.B. and K.W. manifest Hobson's predilection to engage in sexu......
  • Stout v. State, No. 48A02-9210-CR-509
    • United States
    • Indiana Court of Appeals of Indiana
    • April 26, 1993
    ...of evidence of oral and anal intercourse in prosecution for criminal deviate conduct and confinement); Knisley v. State (1985), Ind.App., 474 N.E.2d 513, 517, trans. Although Stout objected to the admission of the uncharged rape as evidence of a depraved sexual instinct, at no time did he o......
  • Request a trial to view additional results

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