Lannan v. State, 71S03-9210-CR-836

CourtSupreme Court of Indiana
Citation600 N.E.2d 1334
Docket NumberNo. 71S03-9210-CR-836,71S03-9210-CR-836
PartiesDonald G. LANNAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Decision Date16 October 1992

Kenneth M. Hays, South Bend, for appellant.

J. Richard Kiefer, Jane H. Ruemmele, Kevin McShane, Susan D. Burke, Indianapolis, for amicus curiae Indiana Ass'n of Criminal Defense Lawyers.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.


SHEPARD, Chief Justice.

A jury convicted appellant Donald Lannan of molesting young V.E., after hearing testimony from another girl who said Lannan had molested her in the past and testimony from the victim regarding several other instances of molestation which were not charged. Lannan's petition for transfer asks this Court to abandon the so-called "depraved sexual instinct" exception under which evidence about these uncharged acts was admitted. We grant transfer to reexamine the exception, its rationales, and whether they remain compelling enough to justify its continued application. Counsel for the parties and for amicus have presented us with excellent briefs on this question. We have concluded that Rule 404(b) of the Federal Rules of Evidence provides a better basis for testing the admissibility of this sort of evidence than our existing caselaw provides.

I. History of the Exception

It has long been settled that in prosecutions for incest, sodomy, criminal deviate conduct or child molesting, evidence of certain kinds of prior sexual conduct is admissible under Indiana's depraved sexual instinct exception to the general rule of inadmissibility of prior bad acts. See Stewart v. State (1990), Ind., 555 N.E.2d 121; State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691; State v. Markins (1884), 95 Ind. 464. This exception has been carved out of the general rule for two reasons. First, the exception has been based on a recidivist rationale: " 'Acts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of that character.' " Kerlin v. State (1970), 255 Ind. 420, 424, 265 N.E.2d 22, 25 (quoting Lovely v. United States, 169 F.2d 386, 390 (4th Cir.1948)). Second, the exception has been based on the need to bolster the testimony of victims: to lend credence to a victim's accusations or testimony which describe acts which would otherwise "seem improbable standing alone." Stwalley v. State (1989), Ind., 534 N.E.2d 229, 231.

The desire to level the playing field by bolstering the testimony of a solitary child victim-witness (recounting unspeakable acts, often in embarrassing detail in the intimidating forum of a courtroom while subject to aggressive cross-examination) was central to the holding in Robbins, the forerunner in a long line of modern era cases developing the depraved sexual instinct exception. 1 In Robbins, the defendant was the superior court judge in Vincennes during the late 1930s. He was indicted on two counts of sodomy with a twelve-year-old girl. The case might fairly have been characterized as a credibility contest between a child and a pillar of the community. To even up this contest, the State sought to introduce testimony from other children regarding other instances of sexual misconduct committed by the defendant against children. The trial court excluded the evidence; this Court held that the testimony of the other children should have been allowed. 2

Indiana has not stood alone in fashioning exceptions to the rules of evidence in cases where children are victims of sexual abuse. Approximately twenty other states have or have had such exceptions. 3 Some, such as Missouri and Kansas, explicitly recognize a depraved sexual instinct exception, State v. Lachterman, 812 S.W.2d 759 (Mo.Ct.App.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1666, 118 L.Ed.2d 387 (1992), or allow evidence of prior bad acts to prove defendant's "lustful disposition or nature." State v. Whiting, 173 Kan. 711, 252 P.2d 884 (1953). Others, such as Illinois, South Dakota and Wisconsin, follow rules similar to Federal Rule of Evidence 404(b), 4 but stretch the definition of the common scheme and plan doctrine to allow prior occurrences of sexual misconduct into evidence, in effect to prove proclivity. See People v. Partin, 156 Ill.App.3d 365, 509 N.E.2d 662 (1987); State v. Means, 363 N.W.2d 565 (S.D.1985); State v. Friedrich, 135 Wis.2d 1, 398 N.W.2d 763 (1987). One court has likened this contortion of the traditional 404(b) exceptions to "forcing a square peg into a round hole." Lachterman, 812 S.W.2d at 768.

The Supreme Court of Wisconsin has been particularly forthright in explaining the justification for what has come to be known in that state as the "greater latitude" doctrine. Friedrich, 398 N.W.2d at 775. The justification is, quite simply, protection of children, the most sexually vulnerable in society. Like our Court in Robbins, Wisconsin has sought to level the playing field in service to the desirable social end of convicting child molesters:

Because of immaturity, fear and embarrassment, sexually abused children find it difficult to testify. It is for this reason that much is being written of late about the necessity of support activities to make the taking of a statement less traumatic. Among these proposals are video taping their examinations and cross-examinations and allowing appropriate support persons to be present to make the ordeal of reliving and reciting their exploitation less difficult. 5

These are among the reasons why a more liberal admission of other crimes evidence is the rule in Wisconsin on sex crime cases.

Id. 398 N.W.2d at 776 (emphasis added).

II. The Recidivism Rationale

Implicit in the application of our exception and those applied across the county under different names is the assumption that sexual offenders repeat their crimes more often than other criminals. "To a person of normal, social and moral sensibility, the idea of the sexual exploitation of the young is so repulsive that it's almost impossible to believe that none but the most depraved and degenerate would commit such an act." Friedrich, 398 N.W.2d at 763. The Indiana Association of Criminal Defense Lawyers, amicus curiae, calls such a belief "ignorant" and "founded on myth," (amicus brief at 35), yet we are inclined to accept the conclusion that recidivisim among sexual deviates is quite high. 6 This alone, however, cannot justify continued adherance to the depraved sexual instinct exception. We have no doubt that recidivism among those who violate drug laws, for instance, is extraordinarily high. 7 We do not allow the State to introduce previous drug convictions in its case-in-chief in a prosecution for selling illegal drugs, however, even though it can hardly be disputed that such evidence would be highly probative. This exclusionary rule renders inadmissible character evidence offered solely to show the accused's propensity to commit the crime with which he is charged. The rationale behind this general rule, sometimes termed "the propensity rule," is that the prejudicial effect of such evidence outweighs any probative value. See Warner v. State (1991), Ind., 579 N.E.2d 1307. If a high rate of recidivism cannot justify a departure from the propensity rule for drug defendants, logic dictates it does not provide justification for departure in sex offense cases.

III. The Bolstering Rationale

We turn then to the second rationale frequently offered for the depraved sexual instinct exception--that allowing such evidence lends credence to a victim's testimony describing acts which would otherwise seem improbable standing alone.

This rationale has its origins in an era less jaded than today. When the accusations were brought in Robbins, in the late 1930s, the idea that an adult male who occupied a position of responsibility in the community would force himself sexually upon a child bordered on the preposterous. Sadly, it is our belief that fifty years later we live in a world where accusations of child molest no longer appear improbable as a rule. 8 This decaying state of affairs in society ironically undercuts the justification for the depraved sexual instinct exception at a time when the need to prosecute is greater.

Indeed, there remains what might be labeled the "rationale behind the rationale," the desire to make easier the prosecution of child molesters, who prey on tragically vulnerable victims in secluded settings, leaving behind little, if any, evidence of their crimes. Nearly four decades ago, the Minnesota Law Review, noting the trend toward admissibility of depraved sexual instinct-type evidence, attributed it to a feeling "that handicapping the state in the prosecution of criminals is undesirable. It is also likely that a realization of the difficulty of obtaining proof of sexual offenses has been partially responsible for the trend." Note, Evidence of Similar Transactions in Sex Crime Prosecutions; A New Trend Toward Liberal Admissibility, 40 Minn.L.Rev. 694, 704 (1956). The emotional appeal of such an argument is powerful, given the special empathy that child victims of sexual abuse evoke. But even this cannot support continued application of an exception which allows the prosecution to accomplish what the general propensity rule is intended to prevent.

In the interest of aiding the prosecution, we could of course expand the exception and abrogate the general rule. After all, our empathy for victims of all crimes is considerable. But the general rule prohibiting the state from offering character evidence merely to show the defendant is a "bad guy" and therefore probably committed the crime with which he is charged remains as fundamental today as ever. "We indeed live in a vulgar age," Lee v. Weisman, --- U.S. ----, ----, 112 S.Ct. 2649, 2681, 120 L.Ed.2d 467 (1992) (Scalia, J., dissenting), when...

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