Pirnat v. State, 82A01-9202-CR-41

• Decision Date: 22 July 1992
• Docket Number: No. 82A01-9202-CR-41,82A01-9202-CR-41
• Citation: 596 N.E.2d 259
• Parties: Steven W. PIRNAT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 259

596 N.E.2d 259

Steven W. PIRNAT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9202-CR-41.

Court of Appeals of Indiana First District.

July 22, 1992.

David M. Shaw, Evansville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Steven W. Pirnat appeals from his conviction for Child Molesting, ¹ a Class D felony. We affirm.

ISSUE

We restate and consolidate the issues as one:

Did the trial court err in admitting evidence of Pirnat's prior conviction of child molesting under the depraved sexual instinct exception to the rule prohibiting the admission of prior bad acts where the prior conviction involved a female child and the instant offense involved a male child?

FACTS

The victim, T.C., was Pirnat's stepson. In April of 1990, when T.C. was twelve (12) years old, he awoke from a nap and discovered that Pirnat had his hand down T.C.'s pants and was touching T.C.'s penis. T.C. forced Pirnat to stop by sticking his fingernail into Pirnat's arm.

Before trial, Pirnat filed a motion in limine which included a request to exclude evidence of his prior conviction for criminal sexual abuse, which was denied. At trial, evidence was introduced which showed that Pirnat had been previously convicted of molesting a female child, M.C., Pirnat's former stepdaughter. Over objection, M.C. testified in detail regarding the prior molestation.

Pirnat was convicted of child molesting and now appeals. Other relevant facts will be stated in our discussion.

DISCUSSION AND DECISION

Pirnat argues that the evidence of his prior conviction for molesting M.C. should not have been admitted and its admission amounts to reversible error. Specifically, Pirnat urges that since his prior conviction involved a female victim and the present offense involved a male victim, the depraved sexual instinct exception is inapplicable and a new trial is warranted. We disagree.

Evidence of prior sexual crimes is generally inadmissible to prove the charged crime. Stwalley v. State (1989), Ind., 534 N.E.2d 229, 231. However, evidence of other sexual acts may be admitted to establish that the defendant has demonstrated a depraved sexual instinct when the charges upon which he is being tried involve the same instinct. Stephens v. State (1989), Ind.App., 546 N.E.2d 1260, 1263, trans. denied. These acts need not be identical to show that a similar sexual instinct is involved in both instances. Hobson v. State (1986), Ind.App., 495 N.E.2d 741, 744. Where prior acts show a defendant's predilection to engage in sexual contact with children, their admission in a defendant's subsequent child molesting trial is proper. Id. at 744-745.

Here, Pirnat's previous conviction involved the molestation of a young girl, while the instant offense involves molestation of a young boy. Both children were minors, and although of different sexes, clearly the incidents demonstrate Pirnat's predilection to engage in sexual contact with children; thus, the evidence of Pirnat's previous conviction and M.C.'s testimony were properly admitted. See id.

Pirnat's reliance on State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691, is misplaced. Rather than holding that evidence that the defendant had molested a young boy was inadmissible because the instant prosecution involved a young girl, as Pirnat alleges, the Robbins court held that the evidence was inadmissible because it was "dissimilar in character" to the instant offense and because the bad act was remote in time and subsequent to the offense charged. Id. at 139, 46 N.E.2d at 696. In contrast to the situation in Robbins, the evidence of prior molestation to which Pirnat objects is very similar to the charge involving T.C....