Moore v. State, 878S159

• Decision Date: 31 August 1979
• Docket Number: No. 878S159,878S159
• Citation: 271 Ind. 464,393 N.E.2d 175
• Parties: Tim MOORE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 175

393 N.E.2d 175

271 Ind. 464

Tim MOORE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 878S159.

Supreme Court of Indiana.

Aug. 31, 1979.

R. Cordell Funk, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Tim Moore, was convicted by a jury of rape, a class A felony, Ind.Code § 35-42-4-1 (Burns 1979), and was sentenced to a determinate term of twenty years' imprisonment. On appeal, defendant raises only the issue of whether the trial court erred in granting the state's motion in limine and thereafter attempting to conceal the prosecutrix's visibly pregnant condition.

Evidence adduced at trial showed that defendant raped Falise Bronston on November 8, 1977. The trial commenced on April 20, 1978, more than five months after the crime. At the time of trial Ms. Bronston was six months pregnant. The state filed a motion in limine, stipulating that Ms. Bronston was pregnant by one Anthony Lawrence Scott, a person other than the defendant, and a state's witness. The state requested that the trial court admonish the defense counsel to refrain from referring to the pregnancy or prior sexual conduct between Ms. Bronston and Mr. Scott. The state based its motion on Indiana's Rape Shield Law, West's Ann.Ind.Code § 35-1-32.5-1 (1978). Defendant simply opposed the motion and did not move to continue the trial until after the birth of the child. The defense could have employed this procedure at the time the motion in limine was granted, well in advance of trial, and eliminated any potential problem altogether.

After granting the motion in limine, the trial court took great care to keep the fact of Falise Bronston's pregnancy from the jury. Falise was seated close to the prosecutor's counsel table with a coat over her lap at one point in the trial. She never stood up in the presence of the jury. The jury was excused whenever Falise had to leave or enter the courtroom at least five different occasions during the trial. The court did not allude in any way to the reason why the jury was being excused. When she took the stand, Falise was sworn in, then the jury was brought into the courtroom and the judge told them that she had already taken the oath. The first time the judge excused the jury for the purpose of Falise's exit, he said:

"Now, there will be a number of questions in your mind about what is going on. That occurs in every trial. We can't give you an explanation now. Keep these in the back of your mind and at the end of jury service, all your questions will be answered.

"I am sure it will be to your satisfaction. I see some questions on some of your faces. Don't worry about it until I will tell you what happened after it is all over and the reasons why it is being done the way it is. All right."

After the jury returned its verdict, the judge explained the extraordinary procedures in this case and revealed the fact of Ms. Bronston's pregnancy.

Indiana's Rape Shield Law, West's Ann.Ind.Code § 35-1-32.5-1 (1978) provides:

"In a prosecution for a sex crime as defined in IC 35-42-4, evidence of the victim's past sexual conduct, opinion evidence of the victim's past sexual conduct, and reputation evidence of the victim's past sexual conduct, may not be admitted, nor may reference be made thereto in the presence of the jury, except as provided in this chapter."

The law provides two exceptions to this rule: evidence of past sexual conduct with the defendant and evidence that someone else committed the crime in question. West's Ann.Ind.Code § 35-1-32.5-2 (1978).

Defendant argues that the application of the Rape Shield Law in the case at bar denied him a fair trial. He claims that he should have been allowed to cross-examine state's witnesses to reveal the victim's pregnancy and the fact that defendant was not the perpetrator thereof or, in the alternative, the judge should have appropriately advised the jury of these facts by way of instruction.

Any evidence of the victim's past sexual conduct, including the fact of this victim's pregnancy, would be inadmissible. West's Ann.Ind.Code § 35-1-32.5-1. Therefore, defendant's efforts to bring Ms. Bronston's pregnancy and the origin thereof to the attention of the jury were improper.

Defendant claims that Falise Bronston's "obvious" and unexplained pregnancy prejudiced the jury and denied him a fair and impartial trial. However, the record does not disclose that the pregnancy was "obvious." Defendant asserts that the trial court's procedures employed in concealing the victim's pregnancy actually drew attention to her condition. He argues that the method of swearing in Falise was different from the procedure used when other witnesses took their oaths standing and in the presence of the jury. Defendant claims that the jurors would naturally be curious about why the victim was treated differently and points to a note to the judge in which one juror asked to see Falise stand as evidence of the jury's curiosity in this regard.

Defendant's...