Rohm v. State
| Decision Date | 05 September 1990 |
| Docket Number | No. 20S00-8811-CR-929,20S00-8811-CR-929 |
| Parties | Kenneth Albert ROHM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
R. Brent Zook, Goshen, for appellant.
Linley E. Pearson, Atty. Gen., Lisa A. McCoy, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Kenneth A. Rohm, was convicted of rape following a jury trial. In this direct appeal he raises two issues: 1) exclusion of evidence, and 2) sufficiency of evidence. We affirm.
The defendant was charged following an incident on February 9, 1987, in which he had sexual intercourse with J.H., an adult female and close friend of the defendant's wife. J.H. testified that the defendant, uninvited, came to her home at approximately 7:30 a.m. They engaged in conversation "about his marital problems and some of the things that I was going through." Record, pp. 118-19. When the defendant then kissed her and began to feel her breast, J.H. protested and tried to push him away, but he pulled her to the floor and continued his sexual advances. Using her fist and striking the defendant with "all my might", J.H. tried to scoot away and yelled "no, don't; don't do this." Record, p. 120. The defendant then straddled her, raised his hand back, and said "if you wake the kids up, I'll beat you to death." Record, p. 121. At this point, J.H. stopped fighting but, crying, continued to ask him to stop. The defendant proceeded to engage in intercourse. In his testimony regarding the incident, the defendant denied using force or making any threats. He claimed that J.H. did not resist but consented by spreading her legs. The defendant also testified that two days before the incident he came home from work to find his wife and J.H. engaged in conversation, and that J.H. then spoke to the defendant about her marital problems, stating that she "practically had to rape her husband in order to get any affection from him." Record, p. 227.
The defendant first contends the trial court erred by refusing to allow testimony of his wife and of J.H. regarding certain statements of J.H.
During the defense cross-examination of J.H., she was asked regarding her visit with the defendant's wife at the latter's home on the day before J.H.'s birthday. When asked whether she and Mrs. Rohm talked about birthday plans, J.H. answered that they talked about "the women going out." When the defense asked, "did you talk about what you'd do when you'd go out," the State requested a bench conference which resulted in a discussion held off the record. Record, p. 133. With respect to this cross-examination of J.H., the record discloses no ruling upon which error may be predicated.
Later, during the presentation of the defendant's case, his wife was asked on direct examination regarding a conversation at her home with J.H. The State again sought a bench conference. After the jury was excused, the State requested that Mrs. Rohm be prohibited from mentioning J.H.'s "prior sexual conduct or suggestion of sexual conduct with any other person." Record, p. 190.
After determining that counsel for the parties disagreed regarding the applicability of the Rape Shield Act, Ind.Code Sec. 35-37-4-4, to the contested testimony, with the defense arguing that the act prohibits only evidence of a victim's past sexual conduct, not future intentions, the trial court stated:
Record, p. 193. Following this ruling in limine, the defendant presented an offer to prove, arguing that the conversation took place in the presence of the defendant and that it was relevant to show the defendant's state of mind from then until the time of the offense.
Out of the presence of the jury, the trial court heard the following testimony by Mrs. Rohm regarding a discussion between her and J.H. in the Rohm kitchen, with the defendant in view of both of the women, "probably about 20 feet away in my living room."
MRS. ROHM.... and for her birthday she wanted to get a boyfriend, which I don't know ... I probably can't say the name ... and for myself to get a boyfriend and since Ken wouldn't be home and my home was free that we could use my home to act as a motel, actually.
THE COURT: I understand. All right. What more?
MRS. ROHM. Well, I told her I wasn't going to do it, because if Kenny decided he didn't want to work that night, for one, you know, he'd come home and all these people in my home, and I just plain wasn't interested.
Q. Was Ken in a position to hear that part of the discussion proposing a party at your house?
MRS. ROHM. I'm not exactly sure if he heard it or not, but he did have an upsetting look on his face and he asked, you know, what we were talking about, you know, if he could be part of the conversation.
Record, pp. 196-97. The trial judge, noting the absence of evidence that the defendant had any knowledge of this conversation, then ruled that the testimony would be excluded. We also observe that this "birthday wish" clearly did not contemplate sexual activity between J.H. and the defendant.
The defendant contends that the excluded evidence does not violate the Rape Shield Act because it is not "past sexual conduct" of the victim. He also argues that the evidence is relevant because "it indicates the state of mind of the defendant and thus bears upon the issue of consent." Appellant's Brief, p. 13.
The relevant portion of the Rape Shield Act, Ind.Code Sec. 35-37-4-4, provides as follows:
(a) in a prosecution for a...
To continue reading
Request your trial
-
McCullough v. Archbold Ladder Co.
...and SWC correctly assert that the trial court must be affirmed if any theory supports its exclusionary ruling. See Rohm v. State (1990), Ind., 558 N.E.2d 1100, 1103. At trial, Archbold and SWC also sought exclusion of Sobek's testimony claiming that McCullough had breached her duty to suppl......
-
Howard v. United States
...the scope of the easement, and the holder of the easement cannot impose a different or extra burden upon the landowner. Klotz, 558 N.E.2d at 1100 (quoting Heidersbach, 172 Ind.App. at 438, 360 N.E.2d at 618). Applying the law to this case, we hold that a public trail is not within the scope......
-
Mead v. Salter
...A trial court ruling excluding evidence will generally be upheld if there is any basis upon which the ruling is correct. Rohm v. State (1990), Ind., 558 N.E.2d 1100, citing with approval Santini v. Consolidated Rail Corp. (1987), Ind.App., 505 N.E.2d We agree with Salter that the prejudicia......
-
Zawacki v. State, 35A02-0012-CR-771.
...with the defendant's daughter fits within any of the statutory exceptions or exception to Rule 412. The trial court in Rohm v. State, 558 N.E.2d 1100 (Ind.1990) properly excluded evidence that the complaining witness had stated shortly before the attempted rape that her "birthday wish was t......