Little v. State, 2-1278A419

Decision Date15 December 1980
Docket NumberNo. 2-1278A419,2-1278A419
Citation413 N.E.2d 639
PartiesDavid LITTLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Gregory L. Caldwell, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Defendant David Little appeals his conviction of statutory rape. 1 His Motion to Correct Errors contained the following allegations of trial court error 2:

1) Exclusion of evidence that the victim, L.K., made prior accusations of sexual misconduct against her which were apparently unfounded;

2) Admission of testimony of L.K.'s mother in that her testimony was hearsay and was cumulative and prejudicial because it was outside the scope of Patterson v. State (1975) 263 Ind. 55, 324 N.E.2d 482;

3) Admission of L.K.'s stepfather's testimony regarding sexual acts committed against L.K. in that such testimony was "totem pole" hearsay and inadmissible for any purpose;

4) Admission of written statements of L.K. and her mother;

5) Denial of Defendant's motion for a psychiatric examination of L.K. when evidence of instability available to the court was discovered during trial;

6) Admission of testimony of L.K. and her mother as rebuttal because it was cumulative and repetitious of the State's case-in-chief;

7) Admission of evidence as rebuttal which should have been presented during the State's case-in-chief;

8) Denial of Little's motion for mistrial based on misconduct by the prosecutor during voir dire in suggesting to the jury that Defendant would make pre-emptory challenges;

9) Admission of the examining physician's testimony in that it failed to prove or disprove any material fact directly or circumstantially;

10) Denial of Defendant's motion for mistrial based on prosecutorial misconduct in making unfounded references to Defendant's "depraved sexual instincts" during the course of argument improperly made in the presence of the jury;

11) Denial of Little's motion for mistrial based on prosecutorial misconduct in initiating the warrantless arrest of two State's witnesses and their subsequent release; 3

12) Denial of Defendant's motion for mistrial due to the cumulative, inflammatory, prejudicial, and illegal misconduct of the prosecutor throughout the trial;

13) Denial of Little's motion for discharge at the close of the State's evidence;

14) Admission of an examining psychometrist's testimony which was improper rebuttal, irrelevant, and immaterial;

15) Denial of Defendant's motions to strike improperly admitted testimony; 4 and

16) Exclusion of testimony of a police officer regarding accusations made by L.K. 5

For the reasons discussed below, we affirm.

The evidence most favorable to the State indicates that L.K., who was fourteen years of age at the time, met Little on May 26, 1977 at a neighbor's home. Later that afternoon Defendant followed L.K. into one of the bedrooms where she was trying to repair her clothing after rough-housing with certain neighbor children. Little then kissed L.K., touched her chest, and led her through the house into a room in the back of the garage. Defendant pushed L.K. onto a mattress, undressed her, performed cunnilingus and had sexual intercourse with her.

Subsequently, L.K.'s mother became suspicious and, eventually on June 22, 1977, confronted L.K. L.K. told her mother what had happened. The next day L.K.'s mother took her to the police station to file a complaint and to the hospital for a physical examination.

I.

Little first alleges that the trial court erred in excluding evidence that L.K. had made apparently false accusations of sexual misconduct regarding others.

Generally, a witness may not be impeached by specific acts, but only by general reputation. Morris v. State (1977) 266 Ind. 473, 364 N.E.2d 132, cert. denied, 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462. An exception to the general rule has been made in some sex offense cases in which the specific act was a prior false allegation of conduct similar to that with which the defendant was charged. See Annot., 75 A.L.R.2d 508 (1961). This exception was indirectly recognized by the First District in Hall v. State (1st Dist.1978) Ind.App., 374 N.E.2d 62.

Hall involved a letter, allegedly written by the victim's father and stepmother, which came into defense counsel's possession the day of trial. The letter indicated that the victim had received psychiatric treatment for her sexual problems and her compulsion to lie. The letter also stated that she had falsely accused others of raping her. Defense counsel was denied a continuance to contact witnesses discovered as a result of the letter. The Court of Appeals determined that potential evidence of false accusations was not excluded by the Rape Shield Law 6: "(A)ny testimony other than that dealing with the victim's past sexual conduct should have been allowed. In this case, the essence of evidence suggested by the letter goes directly to the victim's credibility, not her history of sexual conduct." Id. at 65.

The focus is the falsity of the accusations. We believe that evidence of false accusations of similar sexual misconduct is admissible on the issue of the victim's credibility. The allegations, however, must be demonstrably false. As stated in State v. Nab (1966) 245 Or. 454, 459, 421 P.2d 388, 391:

"It should be observed that the rule ... does not permit the trial to stray from the central issue of the guilt or innocence of the defendant into a full-scale investigation of charges made by the prosecutrix against other persons. That would be intolerable. The rule is limited to the reception of evidence that the prosecutrix had admitted the falsity of the charges or they had been disproved."

Admission of true accusations of sexual misconduct is prohibited by the Rape Shield Law because they would be evidence of the victim's sexual conduct. To permit reception of evidence which may be true or false would allow circumvention of the Rape Shield Law.

In her statement to police, L.K. asserted that the adult male resident of the house where the incident occurred assisted Defendant in removing her clothes. In court she testified that the neighbor had not aided Little and that she had also lied to her mother in that regard. That evidence was properly admitted.

On cross-examination, Defendant attempted to question L.K. about accusations she had made concerning her stepfather. Little was limited to asking L.K. whether she had falsely accused anyone of raping her. The court, however, did admit testimony of a police officer that L.K. alleged that her stepfather had made a pass at her by saying that he wanted to be "the first" and that she had later recanted. Any error in the exclusion of L.K.'s testimony was rendered harmless by the admission of the police officer's statement. State v. Bryant (3d Dist. 1975) 167 Ind.App. 360, 338 N.E.2d 690.

Defendant sought to introduce the police officer's testimony that L.K. alleged that she had had sexual intercourse with eight other men after the incident with which Little was charged. There was, however, no evidence that these accusations were false. For the reasons stated above, the exclusion was proper.

Little also attempted to introduce a written statement made by L.K.'s mother that apparently contained the following language: "She has several problems, most of all sex, she has accused everyone of wanting her. Constantly, something to do with boys." The statement was excluded and Defendant was not permitted to question the mother about the accusations. The statement is not included in the record. Little, has, therefore, waived the issue of its admissibility. Meeker v. Robinson (1st Dist. 1977) Ind.App., 370 N.E.2d 392; see Kagan v. Auto-Teria, Inc. (2d Dist. 1976) 168 Ind.App. 314, 342 N.E.2d 890. In an offer to prove, L.K.'s mother stated that, if anyone paid attention to L.K., she would say, "I think he wants me." L.K.'s subjective belief that others desired her, no matter how erroneous, does not constitute a false allegation of sexual misconduct; there is no element of conduct. We cannot say that the trial court erred in its exclusion of the testimony.

II.

The next three allegations of error, relating to the admission of certain evidence, are grouped together in Little's brief and will be considered likewise on appeal. 7

Defendant maintains that the court erred in allowing L.K.'s mother to relate what her daughter told her about the incident with Little and to repeat a conversation she had with the neighbors. Defendant, however, made no objection at trial to the admission of the testimony. Therefore, any error is waived. See Stubblefield v. State (1979) Ind., 386 N.E.2d 665.

Little failed to object either to the testimony of L.K.'s stepfather that his wife told him about the incident or to certain terms the witness used in referring to Defendant. He preserved no error for review. See Stubblefield v. State, supra.

Little maintains that the court should have excluded the written statements of L.K. and her mother made for police because they were unnecessarily repetitive. The admission or exclusion of cumulative evidence is within the sound discretion of the trial court. Pierce v. State (1970) 253 Ind. 650, 256 N.E.2d 557. Although the statements were similar to the testimony, the versions differed to some extent. We cannot say that the trial court abused its discretion.

Defendant argues that the admission of testimony recounting what L.K. told other witnesses amounted to an abuse of the principle enunciated in Patterson v. State, supra, 263 Ind. 55, 324 N.E.2d 482. In essence, Patterson held that an out-of-court statement is admissible as substantive evidence if the declarant is available for cross-examination. We are aware of the opinion of the Indiana Supreme Court indicating that Patterson has been misapplied in those cases in which the principle has been...

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