Knisley v. State

Decision Date13 February 1985
Docket NumberNo. 4-484A115,4-484A115
PartiesJohn J. KNISLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

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- 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 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 is demonstrated. Jarrett, 465 N.E.2d at 1100; see also, Lawrence, 464 N.E.2d 923. Evidence of the commission of separate sex crimes, such as child molesting, rape, incest, and homosexual acts, even when not reduced to convictions, has been held relevant and probative under this rule. See, Jarrett, 465 N.E.2d at 1099; Lawrence, 464 N.E.2d at 924; Grey, 273 Ind. at 446, 404 N.E.2d at 1352.

T.L., although over the age of consent, was involved in an incestuous relationship with Knisley. This demonstrates a depraved sexual instinct. Grey, supra, 273 Ind. at 446, 404 N.E.2d at 1353. F.H., although over the age of consent and not of any relationship to Knisley at the time, testified Knisley raped her. Evidence of rape also demonstrates a depraved sexual instinct, and is relevant to establish the crime of child molesting. 1 Lawrence, supra, 464 N.E.2d at 924.

Knisley further argues defense counsel asked no questions in direct examination about Knisley's sexual acts with T.L. or F.H. Thus, he claims, evidence of these acts was not admissible for the first time in cross-examination and rebuttal, regardless of whether the evidence would have been admissible in the State's case-in-chief.

If he takes the witness stand in his own defense, the defendant becomes subject to all the rules that govern the permissible scope of cross-examination. Lambert v. State, (1983) Ind., 448 N.E.2d 288, 291; Pearish v. State, (1976) 264 Ind. 339, 345, 344 N.E.2d 296, 299; Sears v. State, (1972) 258 Ind. 561, 563, 282 N.E.2d 807, 808. The scope of cross-examination lies within the sound discretion of the trial court and will be reversed only for an abuse thereof. Blankenship v. State, (1984) Ind., 462 N.E.2d 1311, 1313; Moritz v. State, (1984) Ind.App., 465 N.E.2d 748, 754; McKinley v. State, (1984) Ind.App., 465 N.E.2d 742, 746. Cross-examination is permissible as to all stages of the subject matter covered in direct examination, including any matter which tends to elucidate, modify, explain, contradict, or rebut testimony given in chief by the witness. Lambert, 448 N.E.2d at 292; Dean v. State, (1980) 272 Ind. 446, 449, 398 N.E.2d 1270, 1272. The trial judge is vested with broad discretion to determine whether questions posed or evidence offered on cross-examination is relevant to the subject matter presented on direct. U.S. v. Ellison, (7th Cir.1977) 557 F.2d 128, 135, cert. denied 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450.

In direct examination defense counsel asked Knisley if he had fondled, molested, or ever engaged in sexual intercourse with E.L. Knisley denied ever having done so. By that question and its response on direct examination, Knisley opened the door to cross-examination not only as to his sexual relations with the victim, but also as to any phase of his sexual experiences which became relevant evidence under the crime charged.

Knisley, on direct, denied any sexual relations with the victim. Under the depraved sexual instinct rule, past sexual acts showing a depraved sexual instinct are relevant, probative evidence of child molesting. We therefore conclude the trial court did not abuse its discretion by permitting this cross-examination to impeach Knisley's testimony he did not molest...

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