Lehiy v. State
| Decision Date | 08 December 1986 |
| Docket Number | No. 50A03-8601-CR-30,50A03-8601-CR-30 |
| Citation | 501 N.E.2d 451 |
| Parties | Brian LEHIY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Tom A. Black, Plymouth, for appellant.
Linley E. Pearson, Atty. Gen., Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant/appellant Brian Lehiy appeals his jury conviction for rape pursuant to IND.CODE Sec. 35-42-4-1(a), a Class B felony. He presents three issues for review which are, as restated:
(1) whether the trial court erred in admitting evidence of a previous rape by defendant of another woman;
(2) whether the trial court erred in admitting evidence concerning a polygraph examination administered to the defendant; and
(3) whether there was sufficient evidence to support the verdict.
Lehiy was charged with the alleged rape of a sixteen-year-old girl, L.P., on March 14, 1985. 1 L.P. was walking to her cousin's home, approximately three or four blocks down a country road, because she had had an argument with her boyfriend on the telephone. She alleged the defendant came up to her and grabbed her arm and began kissing her ear. He pulled her over a fence and after a struggle he was able to pin her to the ground. He pulled down her pants and had intercourse with her. She testified there was penetration. She was then able to break free of her assailant and run to her home. L.P. did not tell anyone of the incident immediately and discarded her clothing. Later L.P. told her boyfriend and then her parents of the incident. Her parents took her to the police station and the investigation was begun. During the attack, L.P. did not see the face of the rapist, but she was able to describe clothing, hair texture, build and the fact the attacker had a mustache. Even though she knew the defendant who lived close to her, went to the same school and rode the same school bus, she was not sure who the attacker was until a month and a half later when she saw the defendant, heard his voice and saw the build of his body. She then positively identified the defendant Brian Lehiy as her attacker.
At trial the State offered evidence of a prior act by the defendant in which he attempted to rape another woman. The victim of that incident was allowed to relate this evidence after a pre-trial ruling by the court that the evidence was admissible pursuant to the depraved sexual instinct exception to the general rule excluding such evidence. The witness then testified to an incident some 21 months previous to the incident charged. The witness was working at a camp and took a bike ride. She passed the defendant, who was a complete stranger to her, going the opposite direction and he began to follow her. He pulled his bike in front of her. He grabbed her off the bike and took her into a wooded area where he disrobed her, partially disrobed himself, and attempted intercourse which he was unable to achieve. The witness then dressed and left without interference by the defendant.
The defendant argued at a pre-trial hearing, during trial, in his motion to correct errors and in his brief on appeal that such evidence was improperly admitted into evidence.
The rules as to evidence of other crimes are well established:
Watkins v. State (1984), Ind., 460 N.E.2d 514, 515.
In order to come within the exception to show plan or scheme, there must be characteristics so similar, unusual and distinctive that they are earmarked as the acts of one person. Willis v. State (1978), 268 Ind. 269, 374 N.E.2d 520. The use of force is not alone sufficient to meet this criteria. Malone v. State (1982), Ind., 441 N.E.2d 1339. The facts in this case and those revealed in the testimony of prior acts as indicated above, were not distinctive or similar enough to come within this exception. Therefore admission of the evidence of prior sexual activity could not be sustained pursuant to this exception to show plan, scheme, intent, etc. The evidence could only have been admitted on the basis stated by the trial court, i.e. to show depraved sexual instinct. It is therefore necessary to assess the application of the depraved sexual instinct exception to this case where the prosecution is for rape.
Judge Garrard asserts in his dissenting opinion that evidence of a prior forcible rape is admissible to show depraved sexual instinct. However, we are of the opinion the depraved sexual instinct exception does not apply in a case where the charge is rape only, and therefore the evidence of a prior forcible rape, without "earmarking" traits, was improperly admitted.
Initially, the law is clear that evidence of prior criminal sexual activity is admitted pursuant to the depraved sexual instinct exception where incest or sodomy is charged. In Cobbs v. State (1975), 264 Ind. 60, 338 N.E.2d 632, the defendant was charged with kidnapping and rape. A witness was permitted to testify that the defendant had raped her approximately one month prior to the charged offense. In determining that the evidence was admissible due to a common, distinctive feature in the two rapes which was relevant to establish identity, the Court stated:
In 1980 the Supreme Court of Indiana addressed the issue of the admission of evidence of prior sexual acts in two cases. In Montgomery v. State (1980), 274 Ind. 544, 412 N.E.2d 793, the defendant was charged with rape and kidnapping. A witness testified as to prior sexual conduct of the defendant when the witness was fourteen years old which conduct would have constituted statutory rape even though the witness made no claim of force. The Court determined that the only basis upon which the evidence could be admitted was to show intent, purpose, motive, identity or common plan or scheme and since the incident testified to did not show any of these elements, it was improperly admitted. The Court stated:
"The State claims that her testimony was relevant to show depraved sexual instinct on the part of the defendant. They claim that because the offense, had any been charged, would have been statutory rape since she was fourteen, it was not necessary to show force or violence or consent for this testimony to be relevant. We disagree. It seems apparent that even those cases which have allowed evidence of prior convictions to show a depraved sexual instinct have involved similar offenses.
In Lamar v. State, (1964) 245 Ind. 104, 195 N.E.2d 98 evidence regarding other similar sex offenses was admitted as an exception to the general rule, stating that such evidence was permissible in actions involving abnormal sexual intercourse and citing Borolos v. State, (1924) 194 Ind. 469, 473, 143 N.E. 360 which involved sodomy. More recently this Court has allowed evidence of prior convictions for similar offenses to be admitted as tending to show a depraved sexual instinct when sodomy or incest is charged. Daniels v. State, (1980) Ind. , 408 N.E.2d 1244; Cobbs v. State, (1975) 264 Ind. 60, 338 N.E.2d 632; Austin v. State, (1974) 262 Ind. 529, 319 N.E.2d 130. Such similar crimes also often show intent, motive, purpose, identification or a common scheme or plan.
It is true that if these acts occurred, they would have been an offense of statutory rape since the girl was fourteen years old, and that to prosecute that offense would not require a showing that there was any force involved. However, here we must view this evidence in relation to this case. It could be admitted only under acceptable exceptions to the general rule. In that regard it could be admitted only if it could show intent, purpose, motive, identity or common scheme or plan, which it does not. The prejudicial effect of the admission of this testimony is overwhelming."
Again in Daniels v. State (1980), 274 Ind. 29, 408 N.E.2d 1244, the trial court had allowed evidence of prior sexual conduct. Daniels was charged with rape and confinement and the admitted evidence consisted of a prior rape conviction. The Court held the evidence was properly admitted to impeach the defendant's credibility. However, the Court also addressed a challenged jury instruction which indicated the prior conviction evidence could be considered to determine the defendant's depraved sexual instinct as well as his credibility. In holding the instruction to be in error, albeit harmless, the Court stated "... [I]t is true that the language stating that the prior rape conviction could be considered to show a depraved sexual instinct was incorrect under the circumstances of this case where sodomy or incest...
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